#### Alfred A. Hevia, Respondent, *v.*William E. Wheelock, Appellant.

Second Department,

May 29, 1914.

Principal and agent — action by real estate broker for commissions — pleading — complaint — special damages — demurrer.

The 1st paragraph of a complaint in an action by a real estate broker alleged that defendant agreed to pay him $2,000 for negotiating an exchange of lands. In the 2d paragraph he alleged that he brought to defendant one H., who entered into a contract in writing with defendant for an exchange of the lands. In the 4th paragraph he alleged a refusal on the part of the defendant to pay the commissions and asked for the recovery thereof. In the 3d paragraph he alleged that defendant broke his contract with H., and in separate subdivisions of paragraph 4 alleged (a) that at the special instance and request of defendant and said H. he employed the Title Insurance Company of Hew York to examine the title of the property to be exchanged and that the “value of the service so rendered by said Title Insurance Company of Hew York is $3,500;” (b) that said H. employed him to obtain a loan on the property for which she agreed to pay $2,400; that he arranged for said loan, but that owing to defendant’s refusal to convey “ such loan was not and could not be obtained, whereby plaintiff was prevented from earning and receiving the sum of $2,400 aforesaid;” (c) that at the time of the making of the written agreement aforesaid it was, with the knowledge and consent of defendant, agreed between plaintiff and H. that she should pay for pi aintiff’s services in bringing about the exchange a commission of $4,500, but that by the refusal of defendant to convey, plaintiff has been prevented from receiving the same. For these various sums, in addition to the sum of $2,000, plaintiff demanded judgment.

Held, that the complaint alleged a good cause of action for commissions in effecting the exchange of the properties;

That subdivisions a, b and c of paragraph 4 are not allegations of special damage resulting from the breach of defendant’s contract with plaintiff, but constitute separate causes of action;

That demurrers to the causes of action attempted to be stated in subdivisions a, b and c of paragraph 4 should be sustained;

That the demurrer to the entire complaint upon the ground that causes of action upon contract have been improperly united with causes of action arising upon tort was not well taken. "

Appeal by the defendant, William E.'Wheelock, from an order of the Supreme Court, made at the Kings County Special Term-and entered in the office of the clerk of the county of Kings on the 4th day of December, 1913.

*760
      *George A. Strong,*for the appellant.

*William G. Cooke,*for the respondent.

Burr, J.:

Defendant appeals from an order overruling his demurrer and granting plaintiff’s motion for judgment on the pleadings. In the first paragraph of the complaint plaintiff alleges that he was regularly engaged in business in the city of New York as a real estate broker, and that on or about July 1, 1912, defendant employed him to negotiate and if possible bring about the exchange of a certain parcel of land, situated in the borough of Manhattan, belonging to him, for other real property situated in said borough, for which services he agreed to pay a commission of one per cent of the value of the land, which commission was afterwards fixed at $2,000. In the second paragraph of said complaint he alleges that on July 17, 1912, he brought to defendant a person acceptable to him, to wit, one Gertrude Horowitz, with whom defendant entered into a contract in writing for an exchange of properties. In the fourth paragraph thereof he alleges a refusal on the part of defendant to pay the sum agreed to be paid for commissions, and part of the relief demanded is for the recovery of said sum of $2,000. These allegations, if true, state a complete cause of action for the recovery of commissions. *(Alt*v. *Doscher,*102 App. Div. 344; affd. on opinion below, 186 N. Y. 566.) In addition to the allegations above referred to the complaint further alleges, in a paragraph thereof designated *third,*in substance that said defendant broke his contract with Gertrude Horowitz, and in separate subdivisions of a paragraph designated in the complaint as *fourth,*(a) that on J uly 17, 1912, at the special instance and request of defendant and said Horowitz, he employed the Title Insurance Company of New York, upon his credit and responsibility, to examine the title of the property so to be exchanged, and that the “value of the service so rendered by said Title Insurance Company of New York, is $3,500; ” (b) that said Horowitz employed plaintiff-to obtain a loan on the property to be conveyed by defendant to her, for which she agreed to pay him $2,400; that he did fully arrange and provide for said loan,-but that owing to *761defendant’s refusal to convey his said property to Horowitz “such loan was not and could not be obtained, whereby plaintiff was prevented from earning and receiving the sum of $2,400 aforesaid;” (c) that at the time of the making of the written agreement aforesaid, it was, with the knowledge and consent of defendant, agreed between plaintiff and said Gertrude Horowitz that she should pay to plaintiff for plaintiff’s services in bringing about the said exchange a commission amounting to $4,500 upon the consummation of such exchange, but that by the aforesaid default and refusal of defendant, plaintiff has been deprived of and prevented from receiving the same. For these various sums, to wit, $3,500, $2,400 and $4,500, plaintiff also demands judgment in addition to the sum of $2,000 claimed to be due for negotiating the exchange between defendant and said Horowitz.

Contending that the various subdivisions hereinbefore designated as a, b and c constitute separate and distinct causes of action from that first hereinbefore set forth, defendant as to these causes of action demurs upon the ground; *first,*that as to each of them the complaint does not state facts sufficient to constitute a cause of action, and *second,*that as to each of them there is a defect of parties in that the contracts therein referred to, if any, were joint contracts, to which said Gertrude Horowitz was a party, and that she has not been made a party defendant in this action. Finally, defendant demurs to the entire complaint upon the ground that causes of action have been improperly united in said complaint, to wit, a supposed cause of action upon contract for services hi effecting an exchange of said properties, and a supposed cause of action on contract for services in the employment of the Title Insurance Company, with supposed causes of action in tort for causing to' plaintiff his loss of commissions for procuring a loan to said Gertrude Horowitz and for causing plaintiff his loss of commissions from her for his services in bringing'about an exchange of her property with defendant.

Respondent contends that the complaint sets up but a single cause: of action, and that the allegations contained in those subdivisions of paragraph fourth, hereinbefore referred to as á, b and ó, áre but allégátióhs of special damage resulting from, the *762breach of defendant’s contract with plaintiff. This presents the first question for determination. As we have before pointed out, the cause of action for commissions for services as a real estate broker in effecting an exchange of properties was fully and completely set forth in the first, second and so much of the fourth paragraphs of the complaint as alleges non-payment. None of the other allegations contained therein was necessary or material to such cause of action. If the complaint effectively sets up any other cause of action, it is based either upon a separate and independent contract of employment, as in the case of the alleged employment of the title company, or upon'a separate and independent breach of a contract other than the contract of plaintiff’s employment by defendant, to wit, his agreement with Gertrude Horowitz for an exchange of properties or a duty of defendant in connection with the latter contract. These necessarily constitute separate causes of action. The fact that plaintiff has not separately stated them does not preclude us from so considering them, if in truth they are such, nor does the fact that he may have insufficiently stated some of them answer just and proper criticism thereon. *(Hevia*v. *Wheelock,*155 App. Div. 387; *O’Connor*v. *Virginia P. & P. Co.,*184 N. Y. 46; *People v. Equitable Life Assurance Society,*124 App. Div. 714, 727; *Todaro*v. *Somerville Realty Co.,*138 id. 1.) Viewed, then, as a separate cause of action, the demurrer was well taken to that portion of the complaint relating to an alleged cause of action in connection with the employment of the title company to examine the title to the properties in question, *first,*for defect of parties because it alleges a joint contract of employment by defendant and Gertrude Horowitz, and *second,*because there is no allegation that the title company, although employed, ever rendered any service whatever. It is true that after alleging that the contract was entered into “at the special instance and request of the defendant and the said Gertrude Horowitz,” the pleader adds that he relied “upon the defendant’s promise to^pay therefor.” But if the contract was a joint contract, the fact that by reason of defendant’s greater financial responsibility, or for any other reason, plaintiff relied to a greater degree upon bis obligation than upon that of his co-contractor, could not *763change the nature of the contract from a joint to a several or from a joint to a joint and several one. Again, plaintiff does not seek to recover any damages which the title company might be able to recover from him for breach of the contract of employment by him, but for the value of services which apparently have never been rendered. As to the claim arising upon subdivision b of paragraph fourth above referred to, it is sufficient to say that if this rests upon this contract, it is not the contract of defendant. Plaintiff alleges that Gertrude Horowitz employed him to procure a loan for her, and that he did procure the same for her. Within the authorities hereinbefore cited that would entitle him to recover from her the contract price of his services. The additional allegation that by defendant’s refusal to carry out his contract for exchange with Gertrude Horowitz plaintiff was prevented from earning and receiving the sum of $2,400 agreed to be paid is not only a conclusion of law but an erroneous conclusion. The fact that these allegations are coupled with a further allegation that defendant agreed with said Gertrude Horowitz that she “should be able to obtain a loan on the property of the defendant to be conveyed to her ” in connection with the allegation of defendant’s breach of his contract for exchange may perhaps give Gertrude Horowitz in connection with her cause of action for such breach, the damages which she had to pay to plaintiff for the breach of her contract with him respecting such loan provided that contract was made with defendant’s knowledge and consent. But plaintiff can derive no benefit therefrom, for he was not a party to such contract, nor is Horowitz’ obligation to him in any manner affected by defendant’s breach thereof. In like manner the allegations contained in subdivision c of paragraph fourth are insufficient, for there is no connection between defendant’s refusal to carry out his contract with Gertrude Horowitz and her refusal to pay plaintiff the commissions which he was entitled to recover from her in bringing about such exchange. If such commissions were only to be paid upon the consummation of such exchange, then such commissions never became due from her. If they did become due when the contract for exchange was executed, defendant’s breach of that contract with Gertrude Horowitz would not absolve her from obligation to plaintiff.

*764We think, therefore, that the separate demurrers to the causes of action attempted to be. stated in the paragraphs of the complaint hereinbefore designated as subdivisions a, b and c of paragraph fourth were well taken and should be sustained and judgment directed for defendant thereon.

We think, however, that the third ground of demurrer, which goes to the entire complaint for the reason that causes of action arising upon contract have been united with causes of action arising upon tort, is not well taken. There is no allegation that defendant induced Gertrude Horowitz to break either of the contracts which she made with plaintiff. Without determining whether, even in such case, defendant would be guilty of actionable wrong, for the purposes of this action it is sufficient to say that defendant’s breach of his contract with her may have been the occasion, but it was not the cause of the breach of either of the contracts which she entered into with plaintiff. In considering such a demurrer we are limited to a consideration of the particular defect and objection specifically pointed out. (Code Civ. Proc. § 490.) As a demurrer to the entire complaint upon this ground is not well taken as to the first separate cause of the action, to wit, that for the recovery of $2,00.0 for commissions in procuring a contract for the exchange of properties, there is no sufficient ground of demurrer, and to that extent plaintiff is entitled to relief upon his motion.

The order appealed from should be modified in accordance with this opinion and as modified affirmed, without costs, but with leave to defendant, within twenty days after entry of this order, to apply to this court at a Special Term thereof, to withdraw the demurrer specified in the third ground thereof, and for leave to answer the complaint as to the first cause of action stated therein, upon such terms as may be just.

Jenks, P. J., Care, Stapleton and Putnam, JJ., concurred.

Order modified in accordance with opinion of Burr, J., and as modified affirmed, without costs, but with leave to defendant, within twenty days after entry of the order herein, to apply to this court at a Special Term thereof, to withdraw the demurrer specified in thé third ground thereof, and for leave to answer the complaint as to the first cause of action stated therein, upon such terms as may be just.