
    George L. Rees, Appellant, v. Marie Gair, Respondent.
    Second Department,
    April 28, 1911.
    Principal and agent—broker’s action for commissions—proof raising question as to employment — appeal — defenses — double commissions — evidence — conversation over telephone.,
    1 ¡ - Broker’s action for commissions. Evidence examined, and held, that it was error to nonsuit the plaintiff at the close of his evidence upon the ground that he had failed! to prove his employment by the defendant. ■■ The defendant in such aetiojo. cannot, for the first time upon appeal, take the defense that the plaintiff, his agent, received commissions from the other party. * I
    In such action it is error to exclude testimony of a witness who heard the • defendant converse over the telephone stating whether the defendant said anything about her business with the plaintiff, as the matter is . within the personal knowledge of the witness..
    Appeal by the plaintiff, George L. Rees, from a judgment of the Municipal .Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 21st day of November, 1910, dismissing the complaint. .
    
      J. Hampden Dougherty, for the appellant;
    
      Robert Wylie May, fdr the respondent.
   Rich, J.:

This appeal is from a judgment of the Municipal Court dismissing the complaint a!fc the close of plaintiff’s evidence, in an action brought to recovejr broker’s commissions on the exchange of real property, The dismissal was upon the ground that plaintiff had failed to prjove a cause of action in that he had not proven his employment [by the defendant.

There is sufficient evidence, of employment to require proof on the part of the defendant. The plaintiff testified that the defendant asked him what his commission on exchange of properties would be; he told her two per cent; she not only expressed po dissent, but said she had generally had to pay two and one-half per ceufg she asked plaintiff several times to keep Hr. Bobbins interested in her house, which he did; she told Bobbins in plaintiff’s presence, during the negotiations, that she had to give plaintiff $300 commissions, and after the transfer was effected she offered to pay him $125 for his services. It was not until after the contract had. been signed and the rights of the parties fixed that defendant expressed any intention of not paying commissions to plaintiff. While it appears that Bobbins, the other party to the exchange, had offered to give the plaintiff $150. commissions, it does not appear that he accepted or received it. Plaintiff testified that he told defendant of this offer. There is no defense of a double commission; such question was not raised on the trial. Defendant cannot be permitted to raise the question for the first time on appeal. (Duryee v. Lester, 75 N. Y. 442; Abel v. Disbrow, 15 App. Div. 536.)

I think the exception to the rulings of the court sustaining respondent’s objections to questions as to whether the witness heard certain conversations over the telephone; whether such á conversation took place, and whether in such conversation the defendant said anything about her business with plaintiff, present reversible error. The witness was asked as to her personal knowledge and what she heard, which was clearly com-, petent. The weight to be given her testimony in this respect is another.question.

The judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide the event.

■ Thomas, Carr and Woodward, JJ., concurred; Jenks, P. J., concurred upon the first ground stated in the opinion.

Judgment of the Municipal Court' reversed and new trial ordered, costs to abide the event.  