Desmond v. Governale

James S. Brown, J. Motion by one of the defendants to dismiss the complaint and each of the two causes of action therein, pursuant to rule 106 of the Rules of Civil Practice, on the ground that they are insufficient on their face as a matter [603] of law. The first cause of action seeks to recover the reasonable value for work, labor and services in obtaining for defendant “ a sale, erection and lease of a warehouse site.” Defendant contends that this cause of action is insufficient in that it fails to allege that plaintiff is a licensed real estate broker. While it would be required of plaintiff that he be a licensed real estate broker to recover commissions for a sale or lease of real property, plaintiff may be able to prove under the allegations of the complaint that his services as to this cause of action consisted in obtaining a location or ‘ ‘ site ’ ’ for defendants, for which services no such license would be required. A complaint must be deemed sufficient “if it may be construed as charging a legal wrong for which the pleader is entitled to recover in any form and to any extent ” (Wohlers v. Martorella, 279 App. Div. 629). The first cause of action is therefore sufficient. In the second cause of action there is an allegation that the plaintiff is a licensed real estate broker who seeks recovery against defendants on the ground that the defendants entered into a conspiracy to defraud the plaintiff of commissions due him as a real estate broker in negotiating and consummating the sale and lease of the properties described in the first cause of action by the fraudulent sale and lease of said premises by the defendants, by reason of which plaintiff was deprived of commissions to which he was entitled. “ The essence of a conspiracy is a concert or combination to defraud or cause other injury actually resulting in damage” (Hijos Espuny, S. A. v. Calderon Co., 9 Misc 2d 983, 984; citing Borgos v. Price, 140 Misc. 287, 288; Place v. Minster, 65 N. Y. 89, 95). The second cause of action is also legally sufficient. The motion is in all respects denied. Submit order.