Strunski v. Geiger

Fitzgerald, J.

The complaint alleges that, at their special instance and request, plaintiff performed work, labor and services for the defendants of"the reasonable value of $560. The answer is a general denial. The work, labor and services shown upon the trial consisted of the procuring of a purchaser ready, able and willing to buy the defendants’ real estate on terms desired by and satisfactory to them. At the close of plaintiff’s case the learned court 'below dismissed the complaint upon the ground that the written authorization required to be procured by section 640d of the Penal Code by persons offering real property for sale in cities of the first or second class had not been shown. This ruling cannot be upheld. It would undoubtedly have availed if it had been pleaded, or if proof that it had been procured was essential to the establishment of plaintiff’s cause of action. Cox v. Hawke, 49 Misc. Rep. 106, decided by this court, is directly in point. The action at bar is upon a parol contract. Ho illegality appears upon the face of the complaint, nor does any necessarily appear from the evidence which plaintiff is obliged to introduce in order to sustain his complaint; it may not, therefore, be taken advantage of under a general denial. The illegality of the contract, if pleaded, would have raised an issuable fact; but, upon the record, the dismissal of the complaint was against the authorities.

Gildeesleeve and Davis, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.