
    Cyrus D. Angell, Resp’t, v. William Van Schaick et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 15, 1892.)
    
    1. Brokers—Commissions—Law op poreiqn state.
    In an action by a Pennsylvania broker for commissions on a sale of real estate in that state, the answer set up a statute of that state requiring real estate brokers to take out a license, and in default of doing so imposing a penalty of $500 to he recovered by action, and alleged that the highest court of that state had decided in a proper case that a broker could not recover compensation who had not taken out a license. On demurrer, Held, that defendants pleaded sufficient facts to enable them to prove what the Pennsylvania courts have decided.
    2. Same.
    It was sufficient to aver that the courts of Pennsylvania hold that a real estate broker cannot recover his commissions unless authorized to engage in that business as required by the statutes of that state.. It was neither necessary to set out the facts on which the decisions were rendered nor to refer .to the cases by title nor to aver when and where reported, if reported.
    Appeal from a judgment of the general term of the supreme court, fifth judicial department, which reversed a judgment entered on the decision of a special term, which overruled plaintiff’s demurrer to defendants’ second cause of action.
    
      J$. D. Northrup, for app'lts; Henderson & Wentworth, for resp’t.
    
      
       Reversing 30 St. Rep., 714.
    
   Per Curiam.

It is alleged in the complaint that the defendants owned real estate in McKean county, Pennsylvania, that the plaintiff was a real estate broker having his office in that county, and that in 1886 the defendants employed the plaintiff to sell their realty, agreeing to pay him $600 for his services if he sold it for $30,000. It is further alleged that the plaintiff effected a sale for the sum mentioned. An answer was interposed in which two defenses were pleaded: (1) A general denial; (2)' That in 1885 and 1886 the plaintiff was a resident of and engaged in the business of a real estate broker in McKean county.

It was further averred that by the statutes and laws of that state all persons are forbidden, under a penalty of $500 for each offense, to engage in that business without paying to the treasurer of the county a fee fixed by the statute, and obtaining from that officer a commission authorizing them to carry on the business. It was also alleged that “ The highest court of ultimate and appellate jurisdiction of said state of Pennsylvania, in a proper case brought before it for review, has decided and still holds that a real estate broker not having such commission, or not having paid or caused to be paid into the treasury of the proper county the sum of money required by said laws and statutes to procure the same, cannot recover compensation or commissions for his services as such real estate agent or broker. That by the laws and statutes of the state of Pennsylvania the plaintiff was absolutely prohibited from using or exercising the business or occupation of a real estate broker within the state of Pennsylvania under a penalty of $500 at and during all the times-and periods of time mentioned in said complaint, and was also thereby prohibited from recovering in an action any compensation of commissions for his alleged services as a real estate broker alleged .in said complaint.”

The statutes are referred to in the answer by the dates of their enactment, and the most important sections are literally set forth. It was further alleged in the answer “ That the plaintiff, before the 1st day of January, 1887, had never paid or caused to be paid the sum or fee provided and required by said § 5 of said laws and statutes.” “ That the whole of the said alleged services of the plaintiff for the defendants herein, and all the other matters and transactions alleged in said complaint, so far as any thereof ever occurred, took place, or were transacted, or performed, occurred, took place and were performed and transacted in said city of Bradford, in said county of McKean and state of Pennsylvania, and none thereof were performed, transacted, nor agreed to be done, performed or transacted without said'county of McKean; and that the land and property alleged and mentioned in said complaint was wholly situated in said county of McKean.” To this defense the plaintiff demurred “ upon the ground that such second defense is insufficient in law, upon the face thereof, in not stating facts sufficient to constitute any defense.” This demurrer was overruled at the special term, and a judgment entered which was reversed at the general term, and leave was granted the defendants to appeal to this court

The learned counsel for the plaintiff says in his points that the second defense is insufficient because: (1) “ There is no averment that the facts appearing in the complaint and in the answer demurred to, do constitute such a proper case; (2) There is no averment that the highest appellate court of said state of Pennsylvania ever did decide or ever will decide as in the answer averred upon the facts now appearing in these pleadings; (3) What facts must appear to constitute a proper case in the judgment of that court of ultimate and appellate jurisdiction is left wholly unstated.” The position of counsel is not very clearly stated. Of course no decision has been made by the courts of Pennsylvania upon the identical facts presented by the pleadings in this case, because they have never been before those courts, but if the learned counsel for the plaintiff means that the defendants should have averred in their answer that the decisions were made in cases involving facts like or similar to those in the case at bar, that mode of pleading would be open to his objection that such an averment would be but an allegation of the conclusion of the pleader that the facts involved in the decided cases were in legal effect the same as those set out in the answer in this case, and the result would be that all of the facts in the decided cases would have to be set forth in order to enable the defendants to prove the decisions of that state.' We are not now concerned about what the courts of Pennsylvania have decided or upon what particular facts their decisions were made. The sole question before us is, have the defendants pleaded sufficient facts to enable them to prove what those courts have decided. Upon the trial those decisions will, or may be proved in the'manner provided by our laws, and then the courts of this state will be called on to determine whether the adjudications made by the courts of the state of Pennsylvania, are decisive of this case. It is sufficient to aver that the courts of that state have held that a real estate broker cannot under their statutes recover compensation for his services in negotiating sales without having received a commission authorizing him to engage in that business. It is neither necessary to set. out the facts on which the decisions were rendered, nor' to refer to the cases by title, nor aver when or where reported, if reported.*.,

The validity of this contract must be. determined by the laws of the state of Pennsylvania, and we think that under the rule laid down in Marie v. Garrison, 83 N. Y., 14, and Lorillard v. Clyde, 86 id., 384, it is sufficient to aver that the courts of Pennsylvania hold that a real estate broker cannot recover "his commissions unless authorized to engage in that business as required by the statutes of that state.

The judgment of the general term should be reversed, with costs, and the plaintiff should have leave, upon the payment of costs within twenty days, to withdraw the demurrer and try the issues raised by the pleadings.

All concur.  