
    Isaac Fragner, Respondent, v. Harry Fischel, Appellant.
    Second Department,
    December 30, 1910.
    Principal and agent — broker’s action for commissions — bill of particulars denied — reply —allegations by way of avoidance.
    Where the complaint in a broker’s action for commissions is not based upon the fair value of the services but upon a specific contract entitling him to a certain percentage of the aggregate rentals to be received by his principal, the plaintiff will not be required to give a bill of particulars stating the amount of time used by him in procuring the lease, as that is immaterial.
    It is only where a defendant set up new matter by way of avoidance that the court has discretionary power to order a reply under section 516 of the Code of Civil Procedure.
    Avoidance in pleading is the introduction of new or special matter which, admitting the premises of the opposite party, avoids or repels his conclusions.
    
      Plaintiff in such action will-not be required to reply to a separate defense alleging that he'was employed by some party unknown to the defendant to obtain the defendant’s consent to the lease and that in connection with said transac- ' tion he specially waived all claims to commissions under the contract alleged in the complaint. This, because such allegations do not state new matter by way of avoidance, but traverse the allegations of the complaint and could have been introduced under a general denial.
    Appeal by the defendant, Harry Fischel, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12tli day of April, 1910, denying the defendant’s motions for a bill of particulars and tó compel the plaintiff to reply, ,and also from an order entered in said clerk’s office on the 25th day of April, 1910, resettling the first order.
    
      J. A. Seidmccn, for the appellant.
    
      Lords Fridiger [Alexander A. Mayjoer with him on the brief], for the- respondent.
   Woodward, J.:

The plaintiff, a real estate broker, brings this action to recover commissions alleged to have been earned in securing a lessee for the Grand Street Theater in the city of Hew York, at an annual rental of not less than $35,000, with a special agreement to pay one per cent upon the aggregate amount of rentals accruing under the lease, if plaintiff procured a lessee Who would pay not less than $45,000 -per annum; that plaintiff, at the request of defendant, rendered services in procuring a lessee for the said premises, and secured a lessee who undertook to rent the premises at an annual rental of $47,000 per annum to August 31, 1916, and $46,000 for the remainder of the term, making the commissions aggregate $9,730, no part of which has been paid. The defendant denied the material allegations of the complaint and, in a so-called separate and distinct defense, alleged' that plaintiff Was employed by some other party, to defendant unknown, to obtain defendant’s consént to the lease of the premises, and that in connection with said transaction plain-' tiff specially waived all claim to comihissions under the contract alleged in the complaint, With the pleadings in this situation, defendant moved the court for an order compelling plaintiff to give a bill of particulars stating the street and number of the place where and the date and month when the alleged agreement was entered into; whether the said agreement was oral or in writing, and if in writing, a copy of the same, the name of the alleged tenant and the nature of plaintiff’s services, stating in separate items the number of days during which such services were rendered, on which plaintiff bases his claim for reasonable value. Defendant likewise moved the court for an order directing plaintiff to reply to the alleged new matter. The motion was denied in all particulars. Subsequently plaintiff voluntarily consented to give a bill-of particulars as to all the matters requested in the motion, with the exception of the number of days, etc., on which he was engaged in procuring the lessee, and the order was modified in this particular. The defendant appeals from the modified order.

Passing over any technical consideration of the regularity of the defendant’s proceedings, it may be said that there is no ground for the request for a bill of particulars as to the amount of time used by the plaintiff. The complaint is not based upon the fair value of the services, but upon a specific contract for one per cent of the aggregate amount of the rentals to be received, and the question of how much time plaintiff expended has nothing to do with the case.

On the question of defendant’s right to a reply, we are clearly of opinion that the order appealed from is right. It is only where the defendant sets up new matter by way of avoidance that the court is given the discretionary power tó order a reply (Code Civ. Proc. § 516), and “avoidance in pleading is defined to be. the introduction of new or special matter, which, admitting the premises of the opposite party, avoids or repels his conclusions.” (3 Am. & Eng. Ency. of Law [2d ed.], 523.) In Mahaiwe Bank v. Douglass (31 Conn. 177) the court say: “ ‘ Matter ■' of avoidance,’ says Mr. Gould in his learned and accurate treatise on Pleading, chap. 2, section 42, is new matter which admits the declaration to be true, but shows nevertheless, either that the defendant was never liable to the recovery claimed against him, or that he has been discharged from his original liability, by something supervenient.’ ” The so-called new matter of the answer of defendant is such as might have been introduced under the general denial; it seeks to show a state of facts Contrary to the allegations of the complaint,, and it is not, therefore, new matter by way of avoidance, and the court very properly refused to grant defendant’s motion.'.

The orders appealed from should be affirmed, with ten dollars costs and disbursements.

Hirschberg, P. J.j Jenks, Thomas and Carr, JJ., concurred.

Orders affirmed, with ten dollars costs and disbursements.  