
    WAYLAND against LYSEN.
    
      Supreme Court, First District; Special Term and Chambers,
    
    
      July, 1870.
    Sham Ahswer.—Actioh by Broker.
    In an action by a broker for his commissions, a general denial may be struck out as sham, on affidavits showing that the person introduced by the plaintiff actually became purchaser, and plaintiff was instructed to prepare the contract, although the sale was effected at a less price than that named by defendant in employing plaintiff.
    Motion to strike out an answer as sham.
    
      J. ,K. Aymard, for the motion.
    -'-•, opposed.
   Brady, J.

The general denial in this case interposed by defendant as his answer, is not justifiable on the evidence submitted. It seems to me that the defense is predicated of the theory that the defendant having' named twenty-five thousand dollars as the price of his land, and less having been obtained for it, the plaintiffs cannot recover.

Under the present system of pleading, such an am-; swer cannot, against the proofs furnished, be entertained. The defendant accepted the purchaser introduced by the plaintiffs, and sold to him' for a less price than twenty-five thousand dollars, requesting the plaintiffs to make out the contract. The plaintiffs were the procuring cause of the sale, and it must appear conclusively, in order to deprive them of their. commissions, that the twenty-five thousand dollars was the established minimum price at which they were to sell, when the person introduced by them became the purchaser at a less price; more particularly when it appears that'the'negotiations were caused or were completed in their office, and they were instructed to prepare the contract. ’

The answer is sham, I think, and the motion must be granted.  