When this court previously sustained the complaint in this action it did not hold that the agreement recited in the complaint was either legal or illegal. All we decided was that “ this action should await trial to develop all the facts and circumstances surrounding the making of the agreement in order to determine whether or not it is illegal” (285 App. Div. 1124). Since the agreement was not pleaded in haec verba, but in terms of ultimate facts, its manner of pleading admitted of the possibility that upon trial it might be proven illegal.
In his answer defendant has unequivocally denied making the alleged agreement. Two vital issues may therefore be *333presented at the trial. The first is whether the parties in fact entered into the agreement as alleged in the complaint, which is denied in the answer. Second, if plaintiff establishes such an agreement the issue of its illegality will then have to be determined. But there is authority for the proposition that in order to assert such illegality upon the trial defendant must plead it. The dilemma in which defendant finds himself is that in his answer proper he explicitly denies making the very agreement which, as pleaded by plaintiff, he contends is illegal. If he pleads the ultimate facts of an agreement in such manner as to meet plaintiff’s specifications, defendant may be making admissions that will help plaintiff prove the very contract he denies making (Talbot v. Laubheim, 188 N. Y. 421, 425).
A party who, in raising the issue of illegality of a contract, relies on allegations confined to his own pleadings, should plead facts and not conclusions. This is sound and fundamental pleading practice. But defendant here is relying on the facts pleaded by plaintiff himself. He denies that the agreement as claimed by plaintiff was ever made. If it is found that such an agreement was in fact made, and only in such a contingency, he then asserts that it is illegal and unenforcible. This is a species of pleading in the alternative.
However, the defense in dispute actually pleads sufficient facts to satisfy the most meticulous stickler for formalism. It alleges in part, in paragraph 5, that “ The promise of the defendant as alleged in the complaint and the agreement as alleged in the complaint, and upon which plaintiff sues, and upon which plaintiff seeks recovery are unenforceable, are prohibited by and contravene the statutory law and public policy ” (italics supplied). It is clear, therefore, that the allegations of fact set forth in the complaint have been incorporated by reference into the defense.
The order appealed from should be reversed and the motion denied.
Bbeitel, Frank and Bergan, JJ., concur in Per Curiam opinion; Botein, J., dissents and votes to reverse in opinion, in which Peck, P. J., concurs.
Order affirmed, with $20 costs and disbursements to the respondent.