
    George V. Morton, Appellant, v. Isabella B. Petit, Respondent.
    Second Department,
    June 4, 1909.
    Pleading — action to recover commissions — notice of acceptance.
    A complaint in an action. to recover commissions for procuring a loan, which alleges that the plaintiff procured one S. “ to accept said application,” is sufficient, and it is not necessary to allege the evidence by which the acceptance is to be proved.
    Rich and Woodward, JJ., dissented with opinion.
    Appeal by the plaintiff, George Y. Morton, from an interlocutory judgment of the County Court of Queens county in favor of the defendant, entered in the office of the clerk of said county on the 24th day of December, 1908, upon the decision of the court sustaining the defendant’s demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.
    
      Robert W. Bernard, for the appellant.
    
      Henry A. Sayer, for the respondent.
   Gaynor, J.:

The complaint is that the defendant employed the plaintiff “ to procure within four days an acceptance of a certain application made by defendant for a loan of $650 ”, and that within the said time the plaintiff procured one George W. Short to accept said application ”. The contention is that this is insufficient for lack .of an aliegation that the defendant was notified by the plaintiff of such acceptance, and the court below so held. ' The complaint is not required to allege the evidence by which the acceptance is to be proved, but only the conclusion of fact that the application was accepted. There could be no acceptance excepting by notice in some way to the defendant, but it does not follow that such notice has to be alleged in- the complaint. The method of acceptance is not a matter of pleading but -of evidence. It is the office of a -pleading to allege the ultimate facts to be established, and not the evidence or facts to establish them. The cases cited to Uphold the decision below are not cases of pleading at all, but of evidence.

The judgthent. should be reversed.

Rich, J., read for affirmance, with whom Woodward, J., concurred.

Burr, J.

(concurring):

I think that the construction of the complaint adopted by the court below was toó narrow and technical. Undoubtedly to maintain the action it will be necessary for the plaintiff to prove, not only that he found a person able,, ready and willing to make the loan, but that the fact was communicated to .the defendant. I think, however, that all this is included in the word “ accept.” “To accept ” means “ to assent to.” (Webster’s International Dictionary, title “Accept;” Century Dictionary, Idem.) sAn assent .implies' communication of the mental operation, not the concealment of it. A person does not accept an office-when he forms the determination in his own mind to enter upon the discharge of its duties* but when he communicates that determination to the appointing power. That the word “ accept ” was só employed in this pleading is manifest. The complaint alleges the employment of the plaintiff to procure, within four, days, an “ acceptance ” of defendant’s application for a loan. It would hardly be contended that the word “acceptance” meant procuring someone who formed' the determination in his mind that he would make the. loan ; it goes further than that. So the subsequent allegation that he did procure one George W. Short to “accept.” the application carries with it-the same meaning. If upon the trial plaintiff cannot prove that Short’s determination was communicated to the -defendant, then he has not proved an acceptanee of the loan. For this reason I concur with Mr. Justice Gaykor, and think the judgment should be reversed.

Jems, J., concurred.

Rich, J.

(dissenting):

I dissent. The complaint alleges that the defendant employed the plaintiff to procure, within four days, an acceptance of her application for a loan of $650, agreeing to pay him, if successful, a commission of $150; that within the time limitéd the “ plaintiff procured one George W. Short to accept said application, and the said George W. Short was a person ready, willing and able to make such loan for the time and upon the terms and security hereinbefore alleged in paragraph second; ” that no part of such commission had been paid, although demanded. ' The demurrer is based upon the ground that there is no allegation that the plaintiff ever communicated to or notified the defendant that he had procured a person ready, able and willing to consummate the loan. The defendant was entitled to be advised of this fact, and until she was soinformed and given the opportunity to consummate the loan, the plaintiff was not entitled to commissions. (Gerding v. Haskin, 141 N. Y. 514.) I think the case was properly disposed of at Special Term.

Woodwakd, J., concurred.

Interlocutory judgment of the County Court of Queens county reversed, with costs, and demurrer overruled, with costs.  