
    Francis J. Nekarda, Respondent, v. Mendel Presberger, Appellant.
    First Department,
    January 10, 1908.
    Pleading — broker’s action for commissions — failure to allege con- ■ dition precedent — effect of fiduciary relation between broker and purchaser.
    The complaint of a broker, suing for a balance of commissions, which alleges that the balance was payable out of a sum to bé paid the defendant on the closing of title, should be dismissed for failure to allege as a condition precedent to the liability of the defendant that he had received the final payment. An allegation that the sum “became due” on a given' date is. not equivalent to an allegation of the happening of the condition precedent.
    The question as to the sufficiency of such complaint is raised by objections to the admission of evidence of final payment and a final motion to dismiss upon that - specific ground, although there was no motion to dismiss at the opening of the trial. .
    When the broker was an attorney at law, and the purchaser produced was his . own client who purchased the property for the benefit of a corporation of which the broker was a director, the plaintiff bore a relation of trust and confidence both to the nominal and real purchaser, and is. not entitled to recover on his contract with' the seller unless it be shown that it was made with the full knowledge and consent- of the purchaser. ' •
    
      Appeal by the defendant, Mendel Presberger, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of May, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Milton S. Hoffman, for the appellant.
    
      Ira B. Wheeler, for the respondent.
   Scott, J.:

The defendant appeals from a judgment in favor' of the plaintiff. The defendant held a contract for the purchase from the Carmen estate of a tract of land near Valley Stream on Long Island. He desired to sell the land and authorized plaintiff to find a purchaser. Plaintiff did find and produce a man named Zamek who agreed to buy the property for the sum of $90,500, of which he was to pay $1,000 in cash on the execution of the contract; $14,385 in cash, which was to be deposited with a title company within four days after the signing of the contract, to be held by that company until it should be ready to approve the title, which was to be on June 18, 1906, or not more than five days thereafter, and then to be paid to defendant, and $29,615- in cash to be paid on the delivery of the deed, the balance of the purchase price to be secured by mortgages. -

A contract embodying these terms was entered into between Zamek and the defendant. Upon the same day plaintiff and defendant entered into a contract which referred to the above-described contract, and recited the fact that plaintiff had performed certain services for the defendant in and about the sale of the premises, and otherwise whereby defendant had become indebted to plaintiff in the sum of $14,000,'which defendant agreed to pay as follows: $7,385 in cash out of the $14,385 to be deposited with the title company and thereafter paid to the defendant, and the remaining sum of $6,615 “ out of ” the sum of $29,915 to be paid to defendant on the closing of the title. It is for ■ this second installment that the plaintiff now sues. The first objection to the judgment urged by defendant raises a question of pleading. Under the contract between plaintiff and defendant the installment now sued for was to be paid out of ” the last cash payment to defendant, and, of course, it would not become due unless and until defendant received the final payment, which thus became a condition precedent to any liability on the part of defendant to plaintiff. The complaint does not allege that defendant ever received the final payment, and the defendant now insists, as he did in the court below, that by reason of this omission the complaint failed to state a cause of action. The objection is a narrow one and is extremely technical, since the evidence in the case showed that the defendant had in fact received his final payment before this action was commenced. I think, however, that the objection was well taken, and that the insertion in the complaint of an allegation that the sum “became due” on a given ’ date was not equivalent to the happening of the condition precedent. (Tooker v. Arnoux, 76 N. Y. 397.) Nor does it appear that the defect in pleading was cured by anything that took place on the trial. The defendant did not, it is true, move to dismiss the complaint at the opening of the trial, but he did ’persistently object to the admission of any evidence that the final payment had been made to defendant, and at the close of the plaintiff’s case moved to dismiss the complaint upon the specific ground that it was defective in the particular now pointed out. There is a more serious objection however, to the plaintiff’s recovery which goes to the very .root of his claim. . At the time he negotiated the contract of sale from defendant to Zamek, he was an attorney of this court, and Zatiiek was one of his clients. Zamek was also the president of a corporation known as the Home Alliance Realty Company, of which the plaintiff Was a director. It appears that the contract of purchase although made by Zamek was really made. on behalf of the ■ Home Alliance Realty Company, and it is certain that the deed of the property was made to that, company. Whether the contract was made with Zamek, for whom "he was attorney, or for . the benefit'of the realty company of which he was a director, plaintiff bore to the purchaser a relation of trust " and confidence which renders such a contract as he now seeks to enforce illegal and unenforcible, unless it was made with the full knowledge and consent of the purchaser, of which there is no evidence in the case. A similar contract came before this court in Goodell v. Hurlbut (5 App. Div. 77) wherein the question is thus stated and answered in the negative: Whether an independent contract made between the plaintiff and a third party with whom the plaintiff is negotiating on behalf of his principal, whereby upon the execution of such contract plaintiff is individually to receive a sum of money from such third party, is a contract which the courts will enforce in an action between the agent individually and such third party ? ” We have recently had occasion to restate and apply this-rule which is sustained by ample authority (Auerbach v. Curie, 119 App. Div. 175). This defense was properly pleaded and the defendant sought, but unsuccessfully, to avail himself of it upon the trial. These errors require a reversal of the judgment and render unnecessary a scrutiny of the evidence presented upon the defense of payment.

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

Patterson, P. J., McLaughlin, Houghton and Lambert, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  