(dissenting). Although, arguendo, plaintiff’s papers may lack artistry, they meet the burden imposed by rule 113 and state a cause of action against defendant. The moving affidavit incorporates by reference an allegation of defendant’s answer that the sole reason for the failure to consummate the contract of sale was his inability to deliver possession on the specified date. Thereupon it devolved upon defendant “ to assemble and reveal his proofs in order to show that the matters set up in his answer were real and were capable of being established upon trial. * * * This he has totally failed to do. Mere general averments will not suffice.” (Dodwell & Co. v. Silverman, 234 App. Div. 362, 363.) The rule itself requires “ evidentiary facts.”
The written agreements involved are similar to many passing current in modern real estate transactions. They may not be said to be patently ambiguous. With them in the record we find the classic pattern of a valid claim for broker’s commissions in an instance where the completion of sale failed by reason of the principal’s default. Defendant, affirming his own negligence in signing the agreements without reading them, seeks, in effect, to vary their terms by parol. That might be accomplished under proper circumstances. However, if we adhere to the purpose of the rule and its prescribed procedure, we must hold that his allegations and averments are stated in such general and conclusory terms and are so lacking in evidentiary facts that they do not show his defense to be real or capable of being established upon trial.
Except for the generalized claim of incorrect advice as to his ability to obtain possession from his tenant, defendant’s affidavit meets the natural question as to what he did to that end during the period of four and one-half months in these words, “ That various clauses in the lease * * * were conflicting and deponent desires a trial of this action * * *. That there were notices served on behalf of deponent on the tenants and there were notices served by the tenants upon deponent and the proposed purchaser which deponent feels constitutes valid and admissible evidence along with testimony in support thereof.” In matters of this sort proof is called for in order that the court may exercise its function of drawing conclusions rather than a long bow of speculation.
*276The order should be reversed and plaintiff’s motion for judgment granted, with costs.
Foster, P. J., Bergan, Coon and Halpern, JJ., concur in Per Curiam opinion; Imrie, J., dissents, in a memorandum.
Order affirmed, with $10 costs. [See post, p. 762.]