
    Rosa Wiederman, Appellant, v. Max Verschleiser, Respondent.
    
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Brokers — employment of, to procure purchaser of leasehold property— action to recover commissions — pleading — contracts — evidence.
    Pleading — allegations of affirmative defense — answer — contracts — evidence — Code Civ. Pró. § 522.
    The employment of a broker to procure a purchaser for a leasehold interest in real estate may be proven either by oral testimony or by a writing; and the contract is' performed when the broker procures a purchaser ready, able and willing to take the property at .the seller’s terms.
    Where the complaint in an action by the broker to recover the agreed commission alleges facts showing plaintiff’s performance and defendant’s default in paying the commission, it will be assumed on appeal from a judgment for the dismissal of the complaint that its allegations are true.
    It was not essential to a recovery that plaintiff should prove the execution of a written contract between defendant and the intending purchaser.
    Under section 522 of the Code of Civil Procedure the allegations of an affirmative defense that a contract under seal, a copy of which was annexed to the answer and made a part thereof, was the agreement set forth and referred to in the complaint, will be deemed to be controverted so that after defendant had put in the contract under seal to establish his defense plaintiff had the right to offer testimony showing want of consideration or fraud.
    Memobahdum on plaintiff-appellant’s motion for reargmnent.
    Harry Stackell, for appellant.
    Kantrowitz & Esberg (Moses Esberg, of counsel), for respondent.
    
      
       See 93 Misc. Rep. 453.—[Repr.
    
   Per Curiam:

Appellant asks for a reargument of appeal from judgment of the City Court dismissing complaint, and from order denying motion for new trial.

In this action to recover broker’s commissions the complaint alleges that in February, 1914, the defendant employed the plaintiff and the plaintiff in consideration of the sum of $600 to be paid by defendant „ agreed to procure a purchaser for a leasehold interest owned by defendant in certain real property upon stated terms and conditions; that thereafter the plaintiff, pursuant to the employment, procured a purchaser ready, able and willing to purchase the said leasehold interest upon the terms and conditions stated, and that said purchaser entered into a contract with the defendant for the purchase of said interest; that the defendant has defaulted in the performance of said contract with the purchaser and has also, after demand, failed to pay plaintiff any part of the consideration of $600, except the sum of $50.

After denying in his answer material allegations of the complaint defendant set up as an affirmative defense that on February 19, 1914, the parties for a valuable consideration entered into an agreement in writing, under seal, a copy of which is annexed to the answer marked A (hereinafter referred to as exhibit A) and made a part thereof; that said agreement is the alleged agreement of employment referred to in the complaint; and that subsequently to the execution of said agreement the plaintiff: obtained a party who entered into a contract with the defendant for the purchase of the property, but that said party defaulted in the performance of the contract. A reference to exhibit A, signed by the broker and the defendant, shows that it was therein agreed that unless the agreement of sale was consummated the plaintiff should not be entitled to any commissions for his services.

At the opening of the trial the learned trial justice asked plaintiff if he admitted that “ this paper,” the alleged contract (exhibit A) set up in the affirmative defense, was signed by the plaintiff before the contract for the purchase and sale of the leasehold was made, and plaintiff’s counsel stated that such was the fact, but that the broker’s signature was obtained by false and fraudulent representations and that there was no consideration for the written contract. The" court thereupon dismissed the complaint upon the ground, as appears from the record and the opinion handed down, that the plaintiff as a condition precedent to recovery was bound to go into a court of equity and have a written contract, exhibit A, can-celled and set aside, the City Court having no jurisdiction of such an action. This ruling requires a reversal of the judgment.

In the first place, the contract set up in the affirmative defense is not (although the trial justice assumed it is) the basis of the plaintiff’s cause of action, and the case contains no admission to that effect. Plaintiff’s suit is based on the employment alleged in his complaint, an employment which could have been proven by either oral testimony or by a writing; and, as alleged, the contract was performed when he procured a purchaser ready, able and willing to take the property at the seller’s terms (Tanenbaum v. Boehm,, 202 N. Y. 293), and the complaint stated facts showing performance and defendant’s default in making the stipulated payment to the plaintiff. The fact that exhibit A was executed before the making of the contract of sale by the defendant and the purchaser is not of controlling significance, because it must be assumed on the appeal from the dismissal that the allegations of the complaint are true; and it was not essential to a recovery by plaintiff that he should prove the execution of a written contract by the defendant and the purchaser.

In the second place, the allegation of the affirmative defense that exhibit A was the agreement alleged in the complaint and under which the broker and the owner acted was deemed to be controverted (Code Civ. Pro., § 522); so that after defendant put in exhibit A to establish his affirmative defense the plaintiff would then have a right, even in the City Court, to introduce evidence showing that by reason of lack of consideration (Hough v. Baldwin, 50 Misc. Rep. 546), or because of fraud (Whipple v. Brown Bros., 170 App. Div. 531), the writing was not binding upon the parties.

The motion for reargument should be granted and the judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Guy, Bijur and Whitaker, JJ.

Motion for reargument granted.  