Sec. 58. How Question Of Double Employment Is Raised

Where the principal desires to avail himself of the fact that the broker accepted or agreed to accept commissions from both sides, he must plead it as a defense.23 In Norman v. Reuther, 25 Misc. 161 (N. Y. 1898), (citing Chatfield v. Simonson, 92 N. Y. 209), it was said that while the owner did not plead affirmatively that the broker was acting for both sides, without the knowledge of both, proof of it may be made where the answer denies the performance of the services.24 But in Duryee v. Lester, 75 N. Y. 442 (1878), the Court of Appeals remarked that if one of the parties to a deal desires to avoid liability on the ground that the agent has agreed for commissions from both sides, it seems the better practice is to plead it and not to rely on a mere general denial.25

22 This case cited In Hartford Fire Ins. Co. v. McKenzie, 70 111. App. 624. 23 Bonwell v. Auld, 9 Misc. 65 (N. Y. 1894).

24 See also Brlerly v. Connelly, 31 Misc. (N. Y.) 268, to same effect, and Wolff v. Denbosky, 36 Misc. (N. T.) 643, where a general denial was held sufficient to raise the question.

25See 1 Chltty on Pl., 501.