90 N.Y.S. 589 | N.Y. App. Div. | 1904
The complaint in this action, to which the defendant’s demurrer has been sustained, is certainly confusing; it apparently sets forth two contracts in reference to the same matter, claiming performance under both, and yet, under the one which appears to have been executed in particular, the plaintiff fails to show the facts necessary to entitle him to recover. Paragraph 1 of the complaint alleges the employment of Samuel Gross by the defendant as her broker to sell certain premises known as Nos. 28 and 30 West One Hundred and Thirty-first street, in the city of New York. The 2d paragraph alleges that Gross “ rendered services to the defendant, at her request, as broker, in the sale of said premises, for which work, labor and services defendant agreed to pay said Samuel Gross the sum of $798.00.” The 3d paragraph then alleges that defendant and Gross, on or about the 8th day of September, 1903, entered into a written agreement in reference to the sale of this same property. This agreement recites that “ It is hereby agreed between Clementine M. Silverman and Samuel Gross that in consideration of Samuel Gross, for procuring contract to be made and signed by his sister, Ettie Gross, for the purchase by her of property Nos.
It appears, therefore, that the services of Samuel Gross, plaintiff’s assignor, were performed, not under the general contract of employment, but under the written contract, which required a sale to Ettie Gross, and the brokerage in this case was not. to become payable unless there was an actual passage of title, except in the case of default on the part of the defendant. In other words, the contract under which Gross performed his services required that ^ the title to the premises should pass, unless the consummation of the transaction was defeated by the conduct of the defendant, which is the condition which the law would supply if the contract had been silent upon that point. Default means anything wrongful; some omission to do that which ought to have been done by one of the parties (9 Am. & Eng. Ency. of Law [2d ed.], 168), and a mere allegation that “ because of the default of the defendant said premises were not conveyed ” does not state the' necessary facts to show to the court that the defendant did omit to do anything that she was called upon to do. There is no allegation that Ettie Gross was ready, willing and able to perform her part of the contract at the time fixed in the contract; no allegation that the defendant failed in the performance of any of the conditions named in the contract, or of any other act which the circumstances required of her. The pleader’s conclusion that she defaulted is not the statement of a fact which is admitted by the demurrer (Talcott v. City of Buffalo, 125 N. Y. 280, 284; Bogardus v. New York Life Ins. Co., 101 id.
The judgment should be affirmed, with costs.
All concurred.
Interlocutory judgment affirmed, with costs.