
    Margaretha Behrens, Respondent, v. Sarah S. S. Sturges and Adele Sturges Dodd, Appellants, Impleaded with Sadie Trask Sturges, Defendant.
    First Department,
    November 8, 1907.
    ■Pleading — action to establish equitable lien.
    A complaint alleging that the plaintiff was employed as a broker under an'agreement-whereby he was to receive as commissions a percentage of profits on the resale of lands by his principal; that the^principal died and tile defendants became seized of the property under his will, does not state facts entitling the plaintiff to an equitable lien, but merely shows a claim against the principal’s estate for the percentage of the profits arising when the devisees should sell the lands. -
    A demand for an equitable lien cannot be founded upon allegations inconsistent with the right thereto.
    Atpeal by the defendants, Sarah S. S. Stnrges and another, from so much of an order of -the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New. York on the 7'tli day of October, 1907, as denies their motion to cancel a notice óf the pendency of .the above-entitled action,
    
      
      Norman Wilmer Chandler and Harold Swain, for the appellants.
    
      Robert L. Turk, for the respondent.
   Ingraham, J.:

The complaint in this action alleges that the plaintiff was employed by one Trask as his confidential real estate broker under an agreement, whereby the plaintiff was to receive as compensation for his services as such real estate broker ten per cent of the profits arising from the increase in value, if any, of all real property purchased by plaintiff as such real estate broker for said Trask whenever the said Trask should sell the.same,” that plaintiff as such broker purchased for Trask in 1893 certain real property described in the complaint; that Trask died oh the lltli of January, 1897, leaving a last will and testament which was duly admitted to probate, and that the defendants took the real property of Trask under his. will, andaré now seized and .in possession thereof, and in which plaintiff was entitled to ten per cent of the profits. The judgment demanded is that plaintiff liaye an equitable lien upon the property to the extent of. ten per cent of the profits or increase in value of said property; that in the event of a sale by the defendants of the said property, an accounting be had, and that after the sale the defendants be required to pay to the plaintiff such sum of money as shall be ascertained to be due to her, and for other relief.

It is clear that upon this allegation of the complaint there was no equitable lien, but all that plaintiff had was a claim against Trask’s» estate for ten per cent of the profits arising from the increase in value of the real estate purchased by the plaintiff as broker for Trask whenever the said Trask should sell, dispose of or convey the said property purchased by the plaintiff. The allegations in this complaint are entirely different from those in Lindheim & Co. v. Central Nat. Realty & Const. Co. (111 App. Div. 275), which was an action where a sale of the property and division of the proceeds was sought. There is no such demand for judgment in this case. The only demand that could possibly affect the property is that it be adjudged that the plaintiff had an equitable lien upon the property,. but that is entirely inconsistent with the allegations of the complaint. The case of Brox v. Riker (56 App. Div. 388) is in point, where it was said : “ Where there ere no allegations in the complaint which would bring the action within the Class of those 'which affect the title to real property, a mere demand for a. judgment which is entirely foreign to the caiise of action alleged would not justify the plaintiff in filing the. notice.”

The case of Beman v. Todd (124 N. Y. 114) was an action to recover a sum of money that had been wrongfully invested by the defendant in pieces of real estate; a case which gave to the plaintiff, if the facts could be proved, an interest in the .real property. In the present case the allegation was that the plaintiff was' entitled to receive as compensation for his services an amount which was to be fixed by reference to the profits of "a sale of the real property when realized ; but it gave the plaintiff no greater interest in the real property than if the amount of commissions was fixed by agreement absolutely, and not dependent upon the amount of profit realized.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Patteeson, P. J., Clabke, Scott and Lambebt, JJ., concurred.

Order reversed, with ten dollars'costs and disbursements, and motion granted, with ten dollars Costs.  