#### John Reis Company, Respondent, *v.*Mary Elizabeth Post, as Executrix, etc., of Donald McNeil, Deceased, Appellant.

Second Department,

May 25, 1914.

Principal and agent — action for broker’s commissions — pleading — complaint — failure to allege non-payment.

A complaint in an action for broker’s commissions failing to allege nonpayment, does not contain the “plain and concise statement of the facts constituting each cause of action ” required by subdivision 2 of section 481 of the Code of Civil Procedure, where the other averments thereof are not equivalent to an allegation of non-payment.

Appeal by the defendant, Mary Elizabeth Post, as executrix, etc., 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 5th day of March, 1914, denying defendant’s motion for judgment on the pleadings.

The action was brought to recover broker’s commissions for negotiating an exchange of property.

*Ernst, Lowenstein & Cane,*for the appellant.

*Henry M. Dater [Jay S. Jones*and *Edward J. Fanning*with him on the brief], for the respondent.

Rich, J.:

The appeal is based upon the contention that the complaint is fatally defective in that it does not allege non-payment of the commissions (which is the essence of the alleged cause of action), and does not, therefore, contain the “plain and concise statement of the facts constituting each cause of action ” that is required by the provisions of section 481, subdivision *2,*of the Code of Civil Procedure. The learned court at Special Term held that the averments of subdivision 4 of the complaint (liberally construed with a view to substantial justice, as directed by section 519 of the Code) were “equivalent to an allegation of a breach of the contract by defendant’s testator to pay commissions, ” and that such averments, taken in connection with the allegation of subdivision 8 of the complaint that defendant rejected the claim filed by plaintiff, are “equiv *464alent to an allegation of non-payment, both by defendants and their testator.”

The rule controlling the disposition of the question presented is stated in *Dickinson*v. *Tysen*(125 App. Div. 735, 740), which was an action to recover broker’s commissions, as follows: “ The Code of Civil Procedure, section 481, provides that a complaint must contain a plain and concise statement of the facts constituting the cause of action." Under this provision whatever facts are essential to be proved to entitle the plaintiff to recover upon the trial must be set out in the complaint. Upon a contract for the payment of money non-payment is a fact which constitutes the breach of the contract and is the essence of the cause of action, and being such, within the provision of the Code, that fact must be alleged in the complaint. It is suggested that inasmuch as payment is always an affirmative defense which must be pleaded in order to be available, it necessarily follows that non-payment need not be alleged. This does not follow. The reason why non-payment must be pleaded is clearly set forth in the opinion in *Lent*v. *New York & Massachusetts R. Co.*(130 N. Y. 504).” The defendant’s demurrer was sustained, although the inference of non-payment was stronger upon the facts alleged than upon those alleged in the complaint in the case at bar. In the *Lent*case referred to the complaint alleged an award to the plaintiff for real estate taken tiy the defendant railroad company by condemnation proceedings, and an order confirming the report of the commissioners and directing the payment of such award, an appeal therefrom and affirmance, followed by a prayer for judgment for the amount of the award. To this complaint the defendant demurred, upon the ground, among others, that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer upon this ground, holding that no presumption of payment could be indulged in; that there was no allegation in the complaint that the defendant had failed or omitted to pay the award and no allegation of indebtedness, without which no cause of action was stated. That case was cited and adopted in *Posner*v. *Rosenberg, No. 2*(149 App. Div. 272, 277).

Subdivision 4 of the complaint alleges that the defendant *465refused to make the exchange of property which plaintiff had arranged, or “comply with the terms of the memoranda, aforesaid, although requested so to do by the plaintiff, and, although the owners of said premises * * * were ready, able and willing to make said exchange. ” The memoranda referred to states the terms of a proposed and authorized exchange of property “with the further understanding that the commission to you on my property will be at the rate of One and a Half *(1Y.%)*per cent, on the purchase or sale price.” There is nothing in the memoranda providing for the payment of commission, so that the alleged failure to comply “with the terms of the memoranda, aforesaid,” is not an allegation of, or equivalent to an allegation of, non-payment of the commission the plaintiff seeks to recover.

The other allegation upon which the learned Special Term rested his conclusion that non-payment was sufficiently alleged, is contained in the 8th subdivision of the complaint and is that the plaintiff served “a notice of the within described claim” upon the executrix and that she unreasonably rejected the same. There is no claim alleged or described in the complaint to which the reference “ within described claim ” applies, and the allegation is not the equivalent of an averment of nonpayment. Plaintiff’s claim, although rejected, may have been paid, after such rejection. There is nowhere in the complaint an allegation that defendant or her testator was or is indebted to plaintiff, or that the alleged earned commission of $1,500 had not been fully paid, without which, under the authorities cited, no cause of action is stated.

The order must be reversed, with ten dollars costs and disbursements, and judgment directed for the defendant on the pleadings, with costs.

Present—Jenks, P. J., Burr, Rich, Stapleton and Putnam, JJ.

Order reversed, with ten dollars costs and disbursements, and judgment unanimously directed for defendant on the pleadings, with costs.