
    Charlotte Springer, Respondent, v. Henry J. Duveen and Others, Composing the Firm of Duveen Brothers, Appellants.
    
      Pleading—broker's commissions—sale of tapestries—attempt to hold purchaser for commissions of broker.
    
    Appeal from two orders of the Supreme Court, entered in the New York county clerk’s office on the 6th day of October, 1913, one granting a motion and one denying a motion for judgment on the pleadings.
   Scott, J.:

The pleadings in the case consist of a second amended complaint and a demurrer, the result of the orders appealed from being to overrule the demurrer and uphold the sufficiency of the complaint. The latter pleading, as remarked by the justice at Special Term, is “unnecessarily discursive,” being in effect an expansion by immaterial allegations of a former complaint which had been held defective on demurrer. In brief, the plaintiff alleges that she was authorized by the King of Spain to procure a purchaser for certain tapestries, being promised a commission if she succeeded. ' She strove to interest a possible purchaser, by whom she was referred to defendants, who, as it was said, would examine and appraise the articles. She saw defendants, and gave them such information and introductions as were necessary to enable them to gain access to the tapestries. She says that it was agreed that in ease the defendants should purchase the said tapestries, either for themselves or for a customer, “either directly or through any other person or persons,” they would notify her as to the circumstances of the sale, and would take no action in the premises which would in any way prejudice her right to obtain a commission. She complains that defendants thereafter purchased the tapestries “through some person or persons unknown to this plaintiff,” but this they clearly had the right to do under their agreement with plaintiff as alleged by her. Without attempting to quote from or paraphrase this very verbose complaint, it is sufficient to say that plaintiff fails to allege any wrongful act or omission on the part of defendants which would appear to stand in the way of collecting her commission from the King of Spain, nor is it alleged that he has ever refused to pay her a commission. She may not recover as for money had and received, for it is not alleged that defendants acted as her agent in effecting the purchase, or that they had agreed to purchase only through her, or had agreed to pay her any part of the profit or commission, if any, that they realized upon the transaction. All they did was to purchase the tapestries, and this, by her own allegation, was precisely what it was contemplated they would do. We are unable to spell out of the complaint any cause of action. The orders appealed from must be reversed, with ten dollars costs and disbursements as to each. Defendants’ motion for judgment must be granted, with ten dollars costs, and plaintiff’s motion denied, with ten dollars costs, with leave to plaintiff, upon payment of the aforesaid costs, to serve an amended complaint within twenty days. Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred. Orders reversed, with ten dollars costs and disbursements as to each; defendants’ motion for judgment granted, with ten dollars costs, and plaintiff’s motion denied, with ten dollars costs, with leave to plaintiff to serve amended complaint on payment of aforesaid costs.  