Van Loan v. Horick , 2 A.D.2d 636 ( 1956 )

Appeal from an order of County Court, Albany County. Plaintiff sued defendant in the City Court of Albany for breach of contract to pay a broker’s commission of 5% on the sale of real property. Judgment of $755 was entered by default. The judgment having been docketed in the County Court, defendant moved that court to open the default. This motion was granted and the judgment vacated; but the ease was sent back to the City Court under certain limitations as to the inquiry to be pursued. It was remitted “ for the sole purpose of passing upon the agreement between plaintiff and defendant concerning commissions and the person responsible for the payment thereof”. This limitation seems to have been imposed because of the argument pursued by the attorney for appellant in the County Court to the effect that this was the only issue. On the new trial the City Court, required as it was to follow literally the limitation imposed on the scope of the inquiry by the order of remission from the County Court, carefully limited the issue to the nature of the -agreement between the parties. It found for the plaintiff and reinstated the original default judgment. We think that after the default had been vacated the preferred practice would be to have placed the parties in the position in which they were before default; and that a plenary trial should have been allowed in the City Court upon all the issues which either party sought to raise by appropriate pleading. Ordinarily these issues would be whether the defendant had agreed to pay plaintiff a commission and whether plaintiff had produced a buyer ready and able to meet the terms of sale at which the property had been listed. On those issues we express no view on the merits. We appreciate that the limitation imposed by the County Court followed the argument of the appellant there; but the result has been a disjointed trial and an unsatisfactory examination of the issues. Order reversed on the law and facts, and the action remitted to the City Court for a new trial, with costs to abide the event. Foster, P. J., Bergan, Coon, Zeller and Gibson, JJ., concur. [See post, p. 716.]