140 N.Y.S. 3 | N.Y. App. Div. | 1913
The plaintiff brings this action to recover a commission alleged to have been earned in the selling of certain real estate for the defendant. The complaint alleges the employment, and that its representative procured a purchaser ready, willing and able to make the purchase upon the terms fixed by the defendant, and that such contract was actually entered into between the defendant and the proposed purchaser, and that by the terms of such contract the defendant recognized, the plaintiff’s representative as the procuring cause of the sale and agreed to pay the sum of two and one-half per cent upon the purchase price of $45,000, upon terms fixed by the said defendant, “ upon passing of title as agreed.” The complaint fails, however, to allege that the title to said premises ever passed, or that it failed to pass by reason of any fault on the part of the defendant, and we are clearly of the opinion that under the authority of Larson v. Burroughs (131 App. Div. 877) the learned court properly sustained the defendant’s demurrer to the complaint and permitted an amendment thereto.
We apprehend, however, that the learned court at Special Term did not intend, by its order, to limit the right of the plaintiff in pleading over to the particular allegations suggested. A party has a right to plead his cause of action, what
Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.
Order modified in accordance with opinion, and as so modified affirmed, with ten dollars costs and disbursements to the respondent.