Opinion
December 14, 1942.
In an action for broker's commission the court directed a verdict in favor of plaintiff because the defendant, in her answer, admitted the material allegations of the complaint. Technically this is so. It appears, however, from the affirmative defense pleaded in the answer, that the defendant did not intend to admit that the whole commission was to be paid when the plaintiff procured a purchaser, but that the parties agreed that $1,000 was to be paid when the sale was consummated, and the balance of the commission was to be paid in installments, to be agreed upon at the time the $1,000 was paid. In the interest of justice the judgment is reversed on the law and the facts, without costs, and a new trial granted, with leave to defendant to apply at Special Term for permission to amend her answer upon payment of costs to date, and upon condition that the judgment remain of record as security for any judgment that plaintiff may recover. Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ., concur.