
    Henry Y. Wemple, Resp’t, v. Patrick H. McManus, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed May 4, 1891.)
    
    I. Noir-joinder of parties—Waiver.
    Defendant employed plaintiff to procure a loan on some property and agreed to pay him a certain commission. On the trial of the action brought to recover the same, the defendant offered to prove that the plaintiff was to divide his commission with three other persons. Held, that under § 499 of the Code Civ. Pro., the failure to plead the non-joinder of the other three was fatal to the offer.
    2. Pleading—General denial—Proof—New matter.
    The general denial allowed by § 500, subd. 2, of the Code Civ. Pro., permits a defendant to disprove anything the plaintiff alleges, or any fact the plaintiff must establish to show a cause of action, or to mitigate the damages, but not to prove a defense founded on new matter.
    Appeal by defendant from a judgment entered on a verdict for plaintiff as directed by the court and from an order denying a motion for a new trial.
    Action to recover for work, labor and services of plaintiff as broker in procuring a loan for defendant on bond and mortgage.
    McAdam, J., rendered the following opinion on denying defendant’s motion for a new trial:
    “ There is much confusion in the evidence, but no conflict The facts are easily collated. The defendant employed the plaintiff t'o procure a builder’s loan of $180,000 on property in ÍEast Fourteenth street, and agreed to pay for procuring it $7,000, which was to cover brokerage, lawyer’s fees, searching title, and all other expenses. The plaintiff, acting under this employment, introduced the defendant to the Metropolitan Life Insurance Company, the officers of which were well acquainted with the plaintiff. A formal application, giving the details of the property and the contemplated buildings,-'was there prepared with great particularity, and subscribed by the defendant. The company officially approved of the application, and agreed to make the loan, of which the defendant had due notice. The insurance company, according to the uncontradicted evidence of its officers, was able, as well as willing, to make the loan. The broker’s duty ended there. He did all it was possible for him to do in the matter. He could do no more. The ultimate failure to consummate the transaction was owing to some subsequent disagreement between the company and the defendant as to the latter’s ability to comply with the terms of his appli-’ cation, a misunderstanding that in no way concerned the broker. The court, at the trial, offered to allow the defendant to show, in defense, that the insurance company failed to keep its part of the understanding according to the written application and acceptance, and finally offered to send the case to the jury on the question whether the company had offered full performance, on its part, of the written compact, with an ability to comply. The defendant failed to give the proof, and declined to go to the' jury on the question.
    The offer by the defendant to prove that the plaintiff was to t divide his brokerage with three other persons was abortive, for two reasons: (1) If the money was to be first received by the plaintiff and afterwards divided, the evidence offered would not' have constituted a defense; for the plaintiff could not have made the necessary division until he received the money. He was entitled to it in his own right and as trustee for the others. (2) If the three other persons were, in the first instance, to receive the brokerage jointly with the plaintiff, the failure to plead the nonjoinder of the other three was fatal to the offer. Barb. Parties, 308 ; 1 Wait Pr., 119 ; Karelsen v. Sun Fire Office, 45 Hun, 144 ; 9 N. Y. State Rep., 831 ; Iron Co. v. Hasbrecht, 48 id., 206 ; 15 N. Y State Rep., 587. The defendant was also bound to plead payment if he intended to insist upon that as a defense.
    Such a defense must be specially pleaded, McKyring v. Bull, 16 N. Y., 297, except in the one exceptional instance where the nonpayment must be affirmatively proved to establish the plaintiff’s cause of action, Knapp v. Roche, 94 N. Y., 329, and this case is not of that peculiar character. The subsequent attempted modifications of the contract made between the insurance company and the defendant were not provable, (1) because they did not affect the broker; and (2) if they did, they were not specially pleaded. The general denial allowed by the Code permits a defendant to disprove anything the plaintiff alleges, or any fact the plaintiff must establish to show a cause of action, or to mitigate the damages, but not to prove a defense founded on new matter. Code, § 500, subd. 2 ; Morrell v. Insurance Co., 33 N. Y., 429 ; Weaver v. Barden, 49 id., 286 ; Brennan v. Mayor, etc., 62 id., 365 ; Clifford v. Dam, 81 id., 52. The rulings at the trial were in accordance with these views, and are correct The plaintiff did not seek to recover the contract price ($7,000) for his services, as this included expenses which were not made. He claimed and recovered the statutory rate allowed for such work, viz., one-half of one per cent, aggregating, with interest, $967.50. No point was raised at the trial as to the propriety of this course. In conclusion, it is only necessary to say that, as the defendant declined to go to the jury on the only question of fact in the case, the verdict in favor, of the plaintiff was properly directed, and the motion for a new trial must be denied.”
    
      Thomas I. L. McManus for app’lt; Staley Fiske, for resp’t.
   Per Curiam.

—The judgment and order are affirmed, with, •costs, upon the opinion of the judge below given on the decision ■of the motion for a new trial.

Sedgwick, Ch. J., and Freedman, J., concur.  