Opinion
October 22, 1926.
Appeal from Supreme Court of Nassau County.
Milton Pinkus [ Thomas J. Cuff with him on the brief], for the appellant.
Harvey J. George, for the respondents.
Order denying defendant's motion for judgment on the ground that the complaint fails to state facts sufficient to constitute a cause of action or, in the alternative, for an order directing plaintiffs to separately state and number the alleged causes of action, affirmed, with ten dollars costs and disbursements, on the opinion of Mr. Justice FABER at Special Term.
KELLY, P.J., JAYCOX, MANNING, YOUNG and LAZANSKY, JJ., concur.
The following is the opinion of the court below:
Motion by defendant Pons for judgment dismissing the complaint on the ground that it does not state facts sufficient to constitute a cause of action against him, or, in the alternative, for an order directing the plaintiffs to separately state and number the alleged cause of action against the defendant Pons. The action is to recover brokers' commissions on the sale of real estate. The complaint alleges, in substance, that the plaintiffs are licensed real estate brokers; that defendant corporation owned certain real estate at Hempstead, and that the defendant Pons, representing himself to be the duly authorized agent of the corporation, listed with the plaintiffs as brokers the said real estate for sale and authorized and directed the plaintiffs to procure a purchaser; that the plaintiffs procured such a purchaser upon the terms authorized by Pons, and that the defendant corporation refused to sell and repudiated the authority of the defendant Pons to contract in its name or to employ plaintiffs as brokers. It then alleges the damage sustained by plaintiffs. The defendant Pons contends that the plaintiffs have mistaken their remedy and argues that the action against Pons should be in tort for deceit or upon breach of implied warranty of authority. He further contends that the complaint is framed upon contract and does not state a cause of action either for breach of implied warranty of agency or for deceit. There is no merit in either of these contentions. In the case of Jamison v. Lamborn ( 207 App. Div. 375) a somewhat similar question was presented. In that case it was held that in an action by a seller to recover damages for breach of a contract for the sale of goods the seller may join both the alleged agent of the buyer and the buyer, where the goods are rejected by the buyer on the ground that the agent had no authority to act for it, since section 213 of the Civil Practice Act specifically provides that where the plaintiff is in doubt as to the person from whom he is entitled to redress he may join two or more defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between the parties. It was also held in that case that the complaint was sufficient, inasmuch as enough facts were pleaded to show that the plaintiff was entitled to damages from one or the other of the defendants, and it was not necessary for the plaintiffs to plead specifically that the agent did or did not have authority to represent the buyer, but it was sufficient to plead that the agent represented that he had authority and that the principal thereafter repudiated the same. It seems to me that the complaint is sufficient, and the motion for judgment should be denied, with ten dollars costs.