Sec. 326. General Statement

In suing for broker's commissions, the broker has the option either to state the facts constituting the cause of action or, if he has performed his part, according to their legal effect. (Sec.329.)

If he pleads the facts constituting his cause of action, it is essential to set forth every material fact which forms a part of the cause of action. (Sec. 329-333.)

If the broker alleges performance, evidence excusing performance is held by some authorities not admissible. (Sec.334.)

Where the payment of commission is dependent on some special agreement, the happening of the condition precedent should be alleged. (Sec. 335.)

Abandonment by the broker, termination of his employment, and bad faith on the part of the broker may all be considered matters of defense. (Sec. 336.)

Although an act is done through an agent, it should be alleged as done by the principal, leaving the method of doing it to the proof. (Sec.337.)

Sec. 327. Scope Of Chapter

The time and space necessarily required for a satisfactory treatment of the subject of pleading is so great that the present chapter can but give a general idea of pleading in brokers' cases. The discussion of the subject is, as a whole, based on the so-called "reformed procedure," though here and there an authority has been drawn from a state where the common law form of pleading still exists.

The essentials of pleading are the same under most of the codes of the various states in which code pleading is the practice - with the possible exception of Louisiana. Reference will therefore be made to but a single code, and as New York was the first state to adopt the reformed procedure,1 and its decisions have been cited so freely in other states, the law of that state has been chosen, and the citations, as a rule, are of New York decisions.

Sec. 328. Complaint For Broker's Commissions

"There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished."2 The New York Court of Appeals in Sadler v. City of New York, 185 N. Y. 414 (1906), said: "All that a plaintiff has to do in any case is to set forth in his complaint a clear, concise, and unequivocal statement of the facts constituting his cause of action, and a demand for the judgment to which he supposes himself entitled."

But let not this statement disarm the practitioner. It has the air of converting the art of pleading into a delightful pastime. Yet pleading is a technical and difficult art. The various codes were intended to simplify pleading, but, notwithstanding this, we must frequently look into the law as it existed long before the time of these enactments in order to ascertain the meaning of the codes. Often the impression is produced on the practitioner's mind that the codes have not made things so simple after all.

1 N. Y. Const, of 1846.

2 N. Y. Code Civ. Pro., Sec. 3339.