
    Wemple v. McManus.
    
      (Superior Court of New York City, General Term.
    
    May 4, 1891.)
    1. Defect of Parties—Waiver of Objection.
    In an action by a broker for commissions alleged to have been earned by plaintiff in procuring a loan for defendant, an objection that the commissions were to be paid to other persons jointly with plaintiff cannot be raised for the first time on the trial; Code Civil Proc. N. Y. § 499, providing that if an objection to a defect of parties is not taken by demurrer or answer, defendant will be deemed to have waived it.
    2. Pleading—Proof under General Denial—New Matter.
    Under a general denial, defendant may disprove anything that plaintiff alleges, or any fact that plaintiff must establish to show a cause of action, but he cannot prove a defense founded on new matter; Code Civil Proc. N. Y. § 500, providing that the answer must contain a general or specific denial of each material allegar tian of the complaint, or of any knowledge or information thereof sufficient to form a belief, or it must contain a statement of any new matter constituting a defense or counter-claim.
    Appeal from jury term.
    Action by Henry Y. Wemple against Patrick H. McManus to recover the sum of $900 for work, labor, and services alleged to have been performed by plaintiff as broker in the procuring of a loan on bond and mortgage for defendant, at his request, on property situated on the south side of Fourteenth street. Brom a judgment entered on a verdict directed in favor of the plaintiff for the sum demanded in the complaint, and from an order denying a motion for a new trial, defendant appeals. On denying the motion for a new trial, McAdam, J., filed the following opinion: “There is much confusion in the evidence, but no conflict. The facts are easily collated. The defendant ernployed the plaintiff to procure a builder’s loan of $180,000 on property in East Fourteenth street, and agreed to pay for procuring it $7,000, which was to cover brokerage, lawyer’s fees, searching title, and all other expenses. The plaintiff, acting under this employment, introduced the defendant to the Metropolitan Life Insurance Company, the officers of which were well acquainted with the plaintiff. A formal application, giving the details of the property and the contemplated buildings, was there prepared with great particularity, and subscribed by the defendant. The company officially approved of the application, and agreed to make the loan, of which the defendant had due notice. The insurance company, according to the uncontradicted evidence of its officers, was able, as well as willing, to make the loan. The broker’s duty ended there. He did all it was possible for him to do in the matter. He could do no more. The ultimate failure to consummate the transaction was owing to some subsequent disagreement between the company and the defendant as to the latter’s ability to comply with the terms of fils application, —a misunderstanding that in no way concerned the broker. The court, at the trial, offered to allow the defendant to show, in defense, that the insurance company failed to keep its part of the understanding according to the written application and acceptance, and finally offered to send the case to the jury on the question whether the company had offered full performance, on its part, of the written compact, with an ability to comply. The defendant failed to give the proof, and declined to go to the jury on the question. The offer by the defendant to prove that the plaintiff was to divide his brokerage with three other persons was abortive, for two reasons: (1) If the money was to be first received by the plaintiff and afterwards divided, the evidence offered would not have constituted a defense; for the plaintiff could not have made the necessary division until he received the money. He was entitled to it in his own right and as trustee for the others. (2) If the three other persons were, in the first instance, to receive the brokerage jointly with the plaintiff, the failure to plead the non-joinder of the other three was fatal to the offer. Barb, Parties, 308; 1 Wait, Pr. 119; Karelsen v. Fire Office, 45 Hun, 144; Iron Co. v. Hasbreeht, 48 Hun, 206. The defendant was also bound to plead payment if he intended to insist upon that as a defense. Such a defense must be specially pleaded, (McKyring v. Bull, 16 FT. Y. 297,) except in the one exceptional instance where the non-payment must be affirmatively proved to establish the plaintiff’s cause of action, (Knapp v. Roche, 94 FT. Y. 329,) and this case is not of that peculiar character. The subsequent attempted modifications of the contract made between the insurance company and the defendant were not provable, (1) because they did not affect the broker; and, (2) if they did, they were not specially pleaded. The general denial allowed by the Code permits a defendant to disprove anything the plaintiff alleges, or any fact the plaintiff must establish to show a cause of action, or to mitigate the damages, but not to prove a defense founded on new matter. Code, § 500, subd. 2; Morrell v. Insurance Co., 33 FT. Y. 429; Weaver v. Barden, 49 FT. Y". 286, Brennan v. Mayor, etc., 62 FT. Y. 365; Clifford v. Bam, 81 FT. Y. 52. The rulings at the trial were in accordance with these views, and are correct. The plaintiff did not seek to recover the contract price ($7,000) for his services, as this included expenses which were not made. He claimed and recovered the statutory rate allowed for such work, viz., one-half of one per cent., aggregating, with interest, $967.50. No point was raised at the trial as to the propriety of this course. In conclusion, it is only necessary to say that, as the defendant declined to go to the jury on the only question of fact in the case, the verdict in favor of the plaintiff was properly directed, and the motion for a new trial must be denied.” Code Civil Proe. FT. Y. §§ 488-500, is as follows: “Sec. 488. The defendant may demur to the complaint where one or more of the following objections thereto appear upon face thereof: * * * (5) That there is a misjoinder of parties plaintiff; (6) that there is a defect of parties, plaintiff or defendant.” “Sec. 498. Where any of the matters enumerated in section four hundred and eighty-eight of this act as grounds of demurrer do nut appear on the face of the complaint, the objection may be taken by answer. Sec. 499. If such an objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it, except the objection to the j urisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action. Sec. 500. The answer of the defendant must contain: (1) A general or specific denial of eacli material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief; (2) a statement of any matter constituting a defense or counter-claim, in ordinary'and concise language, without repetition.”
    Argued before Sedgwick and Freedman, JJ.
    
      Thomas I. L. McManus, for appellant. Staley Fiske, for respondent.
   Per Curiam.

The judgment and order are affirmed, with costs, upon the given on the of motion for a new trial.  