Fitzsimons v. Drought

45 N.Y.S. 44 | N.Y. App. Div. | 1897

Patterson, J. :

It is obvious, on the face of the complaint in this action, that the plaintiffs are not entitled to equitable' relief. They have no lien, and no right to a lien, on the real estate, and cannot reach it to enforce against it a mere claim for brokers’ fees. The only real question now before the court is, whether the plaintiffs are entitled to recover upon a legal cause of action under the averments of the complaint. Manifestly they are not as against the defendant Walsh, with whom they never stood in contract relations. It is urged, however, that enough appears to charge the defendant Drought with liability for damages for the breach of the contract to sell the real estate, and thereby have a sum ascertained and fixed upon which the plaintiffs would be entitled to a commission for .services rendered by them to Drought in the transaction mentioned in the complaint. That a complaint may properly present -the facts of a ■case in a double aspect, so that the plaintiff would he entitled either to legal or equitable relief, is well settled (Bradley v. Aldrich, 40 N. Y. 512; Hale v. Omaha Nat. Bank, 49 id. 626 ; Sternberger v. McGovern, 56 id. 12; Margraf v. Muir, 57 id. 159; Wheelock v. Lee, 74 id. 500); but, looking at the averments of this complaint, it conclusively appears, that it was framed for equitable relief alone. Its object was to have Drought’s conveyance to Walsh declared null and void; to have a lien fastened upon the premises'; to have such premises sold and the proceeds applied first to the payment of commissions due the plaintiffs, and then the balance paid into court. A personal claim for .a money demand is not suggested; on the contrary, the allegation of .the- complaint is that the plaintiffs “ cannot bring any action to recover their commissions in a court of law.” Confessedly they did not intend to sue at law for such commissions, and, although .they may be mistaken in their view of their rights, and may have a legal cause of action against Drought, they have .not so set forth the facts as to enable them, to recover either on their original or modified ¡agreement, independently of the circumstances which they conceived authorized them, to sue for purely equitable relief. ' .

The whole scheme of the complaint is to enforce in equity, by a ■ resort to land, the title to which is in a stranger to the transaction, a broker’s contract for commissions, and it cannot be turned into a mere legal action for brokers’ fees against the party liable to the brokers.

The judgment must be affirmed, with costs.

Yak Bbunt, P. J., Rumsey, Williams and Paekee, JJ., concurred.

• Judgment affirmed, with costs.