
    Alfred C. Marks and Louis A. Marks, Respondents, v. Martin N. O’Donnell, Appellant.
    (Supreme Court, Appellate Term,
    February, 1910.)
    Brokers — Compensation: • Fraud, illegality and waiver oí right — Fraud or misrepresentations and negligence — Secret employment or compensation by opposite party — Upon exchange of properties: Actions -r- Evidence — Admissibility.
    It is not a defense to an action by a broker for commissions for effecting an exchange of real estate that he received commissions from both sides.
    
      In an action by a broker to recover commissions from one of the parties to such a transaction, it is error to admit evidence on the part of the defendant that he did not know the other party was to pay commissions to the broker.
    Appeal by the defendant from an order of the Municipal Court of the city of Mew York, ninth district, borough of Manhattan, setting aside a verdict of a jury in favor of the defendant and ordering a new trial.
    Michael J. Sullivan (Louis O. Van Doren and J. Philip Van Kirk, of counsel), for appellant.
    Charles Weishaupt (S. M. Freedman, of counsel), for respondents.
   Dayton, J.

Action for broker’s commissions on exchange of real estate. Answer a general denial. Jury rendered a verdict for defendant. The court granted motion for new trial. Defendant appeals. The evidence clearly shows that Mr. Welch and defendant met through the introduction of plaintiffs; that all the substantial terms of a contract for the exchange were agreed upon and that such contract was drawn. Mr. Welch was ready to execute it, but defendant declined. Plaintiffs’ claim was sought to be defeated on the ground that they claimed commissions from both sides without defendant’s knowledge. Plaintiffs’ testimony showed that defendant knew of this. Defendant denied such knowledge; but, as plaintiffs were middlemen in the transaction, they were not bound to inform defendant of their employment by Mr. Welch. Knauss v. Krueger B. Co., 142 N. Y. 70. Indeed, it may be said that defendant might reasonably assume that, in an exchange of property, a broker receives commissions from both sides. In his elaborate memorandum the trial court comments upon his charge on this point as conflicting with the rule in Knauss V. Kreuger B. Co., supra. Where the broker receives commissions from the buyer as well as the seller in the purchase of a piece of real estate, without the knowledge of both parties, he cannot recover; but that is not the question here. Another ground stated by the trial judge was the commission of possible error in allowing defendant to show that he had no knowledge that Mr. Welch was to pay commissions, under a general denial, citing Duryee v. Lester, 75 N. Y. 442. In a measure this involves the former proposition; hut, if erroneous, it may have influenced the jury against plaintiffs.

The order granting the motion for a new trial should be affirmed, with costs.

Gtegerich and Lehman, JJ., concur in result.

Order affirmed, with costs.  