(182 N.Y.S.) NEWMAN v. PIERSON. (Supreme Court, Special Term, New York County. June 1, 1920.) 1. Brokers 60-Breach of agreement to buy from a seller to be procured by broker gives broker cause of action. Buyer's breach of his agreement with broker to buy stipulated amount of coal from a seller to be procured by broker, the seller to pay broker's commission, held to give broker a cause of action for damages. 2. Brokers 69-Buyer's refusal to buy from seller procured by broker entitles broker to reasonable value of services. Where defendant, who had agreed to buy a stated amount of coal from a seller, to be procured by plaintiff under contract providing that seller should pay the plaintiff's commission, refused to buy from seller procured by plaintiff who had agreed to pay plaintiff a stipulated commission, plaintiff's measure of damages was not the commission seller had agreed to pay him, but the reasonable value of his services. 3. Brokers 82 (1) —Complaint held defective in failing to allege value of services. Where defendant had agreed to buy coal from a seller to be procured by plaintiff under contract, providing that seller should pay plaintiff's commission, but refused to buy from seller procured by plaintiff, plaintiff's complaint, in action for damages, failing to allege the value of the services held defective. Action by Tracy F. Newman against "Thomas" G. R. Pierson (the name "Thomas" being fictitious, etc.). Defendant interposed a demurrer on the ground of the insufficiency of the complaint, and plaintiff moves for an order overruling demurrer. Motion denied, and demurrer sustained, with leave to plaintiff to amend. Shearman & Sterling, of New York City (Chauncey B. Garver, of New York City, of counsel), for the motion. R. Hunter McQuistion, of New York City, opposed. GIEGERICH, J. The plaintiff moves for an order overruling the defendant's demurrer interposed upon the ground of the insufficiency of the complaint. The complaint alleges that the plaintiff entered into a contract with the defendant by which it was agreed that- "If the plaintiff would introduce him to some one who was ready, willing, and able to sell to the defendant 10,000 to 12,000 tons of bituminous coal for shipment to Genoa, Italy, at the price of $32.75 per ton, the defendant would purchase from such person 10,000 to 12,000 tons of bituminous coal at that price; it being understood that the plaintiff should receive no commission from the defendant for bringing about such sale, but should receive his commission from the seller." It is further alleged that the plaintiff introduced the defendant to a purchaser who was ready, willing, and able to sell to the defendant the quantity of coal named at the price named for shipment to Genoa, which purchaser agreed to pay the plaintiff a commission on such sale of 75 cents per ton when the coal should be shipped and paid for but that the defendant refused to carry out his contract with the plaintiff and thereby prevented the plaintiff from earning his commission on such sale "to the plaintiff's damage in the sum of $9,000." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes [1] The first point on which the complaint is attacked is that the contract pleaded itself negatives the right of the plaintiff to maintain the action; the argument being that the defendant, according to the allegations of the complaint, in accepting the services of the plaintiff, stipulated that he should be under no obligation to the plaintiff. I do not think such a construction is a reasonable one to place upon the allegations of the complaint. It is distinctly alleged that the defendant agreed with the plaintiff to make the purchase. It is true that there is a further provision that if the defendant carried out his contract he should be under no obligation to the plaintiff, who would in that event procure his compensation from the purchaser. The theory of the complaint, however, is not one of performance of the contract, but breach thereof by the defendant, and the remedy sought is damages for such breach. [2] When it comes to the question of the measure of damages, however, I am unable to distinguish this case from Amory v. Washington Steamboat Co., Lim., 120 App. Div. 818, 105 N. Y. Supp. 999. In that case an agent was employed to sell certain steamboats, with an agreement to look only to the buyer for commissions, but with an express condition that the defendant was not to close the sale with any purchaser produced by the plaintiff except through the plaintiff. The defendant did, however, directly, and not through the plaintiff, sell the steamboats to a purchaser procured by the plaintiff. The Appellate Division of this department held that the result of such violation of the conditions was that the plaintiff became entitled to recover his commission from the defendant based upon a quantum meruit and that the fact that the plaintiff and the purchaser had agreed as to the amount of the commission would not entitle the plaintiff as a matter of law to the amount that he was to receive from the purchaser in case the sale had been carried through upon the terms proposed by the plaintiff. I cannot see any substantial difference between that case and the present one, and think it must be held that the plaintiff's damages here, too, are unliquidated, and that what he is entitled to recover is the value of his services, and not the amount agreed upon between him and the purchaser. [3] I am therefore of the opinion that the complaint is defective in failing to allege the value of the services. It would seem, without the citation of authorities, that such an allegation is essential. It is given as a part of a complaint in actions for work, labor, and services in forms of pleading of recognized authority (Abbott's Forms of Pleading, vol. 1, p. 169, form 177), and the Encyclopædia of Pleading and Practice (volume 22, p. 1369) states that such an allegation should be included in the complaint. In Macksoud v. Dildarian (Sup.) 93 N. Y. Supp. 382, it was held by the Appellate Term that a complaint for goods sold and delivered is insufficient against demurrer, if it contains no allegation either of value or of agreed price. The analogy between the two forms of action is manifestly very close. The conclusion I have reached on the point just discussed renders it unnecessary to consider the other objections urged against the complaint. The motion should therefore be denied, and an order (182 N.Y.S.) entered sustaining the demurrer, with $10 costs to the defendant, but with leave to the plaintiff to amend his complaint within 20 days after service of a copy of the order to be entered hereon, with notice of entry thereof, and upon payment of such costs. Settle order on notice. GREENBERG v. JEROME H. REMICK & CO. (Supreme Court, Appellate Division, First Department. May 28, 1920.) Courts 237 (2)-Right arbitrarily to terminate contract employing attorney of general interest entitling attorney to appeal. The question whether a client can arbitrarily terminate contract of employment of an attorney for a fixed period, not in reference to any particular litigation, is of such general interest that plaintiff attorney, demurrer to whose complaint setting up such question has been sustained, will be permitted on motion to appeal to the Court of Appeals; the question being certified. Action by Abner Greenberg against Jerome H. Remick & Co. On plaintiff's motion for leave to appeal to the Court of Appeals from order sustaining demurrer to the complaint. Motion granted, and question certified. Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, PAGE, and GREENBAUM, JJ. Abraham H. Sarasohn, of New York City, for the motion. PER CURIAM. In this action, plaintiff, an attorney at law, entered into an agreement with the defendant to perform legal services for the defendant for one year at a compensation of $5,200, payable $100 weekly. This contract was made on the 21st day of April, 1919. On the 27th day of September, 1919, the defendant discharged the plaintiff, having paid him at the rate of $100 a week for the full time, up to the time of his discharge. The action is brought by the attorney to recover the balance due for the year, to wit, $2,900. The demurrer is upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and that demurrer has been sustained. This court deemed that the question of law involved had been decided in this state by the cases of Degen v. Steinbrink, 188 App. Div. 622, 177 N. Y. Supp. 226; Johnson v. Ravitch, 113 App. Div. 810, 100 N. Y. Supp. 1123; Martin v. Camp, 219 N. Y. 170, 114 N. E. 46, L. R. A. 1917F, 402; Tenney v. Berger, 93 N. Y. 529, 45 Am. Rep. 263; Matter of Dunn, 205 N. Y. 402, 98 N. E. 914, Ann. Cas. 1913E, 536; Andrewes v. Haas, 214 N. Y. 255, 108 N.. E. 423, 3 A. L. R. 458. The plaintiff asks to be allowed to appeal to the Court of Appeals upon the ground that in none of the cases cited was the question involved as to the right of a client to arbitrarily terminate a contract where the employment was for a fixed period, and not in reference to any particular litigation. It is further urged that there For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes are many attorneys who are under annual retainers in similar cases, and that the question is of such general importance that the specific question arising should be determined by the Court of Appeals. We are of opinion that the question presented has such a general interest as to justify this application, and the motion should be granted, and the question certified, whether the complaint states facts sufficient to constitute a cause of action. (110 Misc. Rep. 598) COYNE v. TOWN OF GREENBURGH et al. (Supreme Court, Special Term, Westchester County. March, 1920.) 1. Limitation of actions 22 (2)—Six-year statute not applicable to contract presumptively under seal. A construction contract, reciting that the parties "do jointly and severally covenant and agree," and concluding, "the said party of the first part hath caused its corporate seal to be hereunto affixed and these presents to be signed by its president, * and the parties of the second and third parts have hereunto set their hands and seals," with the letters "[L. S.]" appearing after each signature, was presumptively a contract under seal, to which the defense of the six-year statute of limitations cannot prevail. 2. Equity 87 (1)—Six-year limitation is no defense to an action in equity. In an action on a contract between an avenue extension commission and a contractor, under Laws 1892, c. 493, for the extension of an avenue in the town of Greenburgh, the six-year statute of limitations is no defense, where the action is in equity. 3. Highways 113 (4)-Town, delivering bonds to avenue extension commissioners, was not liable to contractors. Under Laws 1892, c. 493, § 6, requiring avenue extension commissioners to ascertain cost of opening, constructing, and grading, and damages for lands taken, and that amount as "so ascertained" be paid by town by issuance of bonds, to be delivered to commissioners, a town, issuing bonds and delivering them to commissioners, thereby paid the amount "so ascertained," and was not liable to a contractor, where proceeds were to be applied by commissioners to pay contractors. 4. Highways ~113 (4) —Town not liable to contractor's assignee, who knew that commissioners had misapplied town bonds. Where extension commissioners for avenue in town of Greenburgh, acting under Laws 1892, c. 493, sold the town bonds at less than par, contrary to the statute, and on purchaser's insolvency failed to pay contractor, so that work stopped, an assignee of contractor's claims against commission, its members, and the town, in consideration of his financing the contractors, knowing of such sale, which had been participated in by original contractors, even if commission and its members were agents of town, could not hold it liable for damages from commissioners' unlawful acts, as the relation of respondeat superior does not exist between town and its officers. 5. Towns 45-Not liable for negligence or illegal acts of officers or agents, in absence of statute. A town cannot be made liable, either for the negligence or the illegal or unauthorized acts of its officers or agents, except in those cases where the statute expressly provides that it shall be so liable, or where such acts are subsequently ratified by it. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) 6. Towns 27-Avenue extension commissioners designated by statute were not officers of a town. Avenue extension commissioners, designated by Laws 1892, c. 493, for the extension of an avenue in the town of Greenburgh, in whose appointment and removal the town had no voice, and over whose acts it had no control, and who were not residents of the town; were not officers of the town, in view of Const. art. 10, § 2, providing that all town officers must be elected or appointed by the electors of the town or town authorities. 7. Towns 27-Persons temporarily designated by Legislature to perform local functions not local officers. While the Legislature, to effect some special object, may temporarily designate to other than local officers functions pertaining generally to the locality, the persons so designated do not become local officers. 8. Highways 95 (1)—Local authorities are mere agents of the state. In highway matters, the local authorities exercise a very limited authority, as they are mere agents of the state. 9. Towns 44-Have no common-law liability. There is no common-law liability on the part of towns, and whatever liability exists must be the result of some statutory duty or obligation or one arising under contract obligations, which a town has legal authority to enter into. 10. Towns 62—Unliquidated claim against town must be presented for audit. Before the representative of an assignee of amounts to become due on contract for an avenue extension in the town of Greenburgh, for which commissioners were designated under Laws 1892, c. 493, to contract and pay the contractor, can recover any deficiency against the town, due to the commissioners' unauthorized sale of the bonds for less than par to an insolvent buyer, he should allege and prove that he presented his claim to the town for audit, especially where the claim is an unliquidated one. 11. Towns 62-Demand is not liquidated, unless it appears how much is due. A demand is not liquidated, even if it appears that something is due, unless it appears how much is due. 12. Towns 62—Claim is not enforceable, unless acted on by town board of audit. A claim against a town cannot be sued on or enforced, until or unless it has been duly presented and acted on by the town board of audit. Suit by Francis T. Holder, in which, after his death, John H. Coyne, as sole surviving executor, was substitued as party plaintiff, against the Town of Greenburgh, William Edward Coffin, and John G. Peene and two others as avenue extension commissioners. Judgment for defendant Town of Greenburgh, and in favor of plaintiff against defendant commissioners. Caldwell & Masslich, of New York City (Chester B. Masslich and Charles C. Marshall, both of New York City, and Thomas F. Curran, of Yonkers, of counsel), for plaintiff. Frank D. Briggs, of Tarrytown (Joseph B. Thompson, of White Plains, of counsel), for defendant town of Greenburgh. John D. O'Connor, of Yonkers, for defendants Coyne, Tompkins, and Peene. SEEGER, J. This is an action in equity, which was commenced by Francis T. Holder, plaintiff's testator, in the year 1904. The plaintiff Coyne, his surviving executor, was subsequently substituted as For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |