December 3, 1926.
Appeal from Supreme Court of Westchester County.
Albert M. Lee and Julian D. Rosenberg [ Henry Woog with them on the brief], for the appellants.
Max L. Schallek, for the respondent.
We think the complaint fails to allege that plaintiff performed the service which he alleges he was employed by defendant Korn to perform, viz., to procure a purchaser for Korn's premises. The allegation that he "interested" the parties who subsequently purchased the premises, in said premises, is not an allegation that he was the procuring cause of the sale, but is consistent with a sale through some other broker, plaintiff's services being merely to expedite or further the transaction. No cause of action for broker's commissions is alleged against the defendant Marx. In fact plaintiff, for some reason, alleges that defendant Marx assisted him, plaintiff, in the services which he alleges he performed.
The cause of action based upon conspiracy and fraud on the part of defendants to deprive plaintiff of his commissions is entirely separate from the cause of action for commissions, and should in any event be separately stated. But again, no cause of action for fraud or conspiracy is alleged. Plaintiff says that defendant Korn, who employed him, has paid the commissions to defendant Marx, knowing that plaintiff was entitled to such commissions, and that Marx received the money with like knowledge. But there is no allegation that plaintiff has been damaged in any way by such payment; there is no allegation that defendant Korn is insolvent or unable to pay his debts. If he has paid commissions to the wrong broker, the plaintiff's right to recover commissions is not affected in any way by such payment.
The orders denying defendants' motions for judgment on the pleadings upon the ground that the complaint fails to state a cause of action against the defendants, or, in the alternative, to compel a separate statement of the causes of action alleged in the complaint, should be reversed upon the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
JAYCOX, YOUNG, KAPPER and LAZANSKY, JJ., concur.
Orders denying defendants' motion for judgment on the pleadings on the ground that the complaint fails to state a cause of action against defendants, or, in the alternative, to compel a separate statement of the causes of action alleged in the complaint, reversed upon the law, with ten dollars costs and disbursements, and motions to dismiss the complaint granted, with ten dollars costs, with leave to plaintiff to plead over within twenty days from the entry of the order herein upon payment of costs. Settle order on notice.