Opinion
December 1, 1947.
Order denying motion of appellant for judgment on the pleadings in favor of the defendant and against the plaintiff, reversed on the law, with $10 costs and disbursements, and the motion granted, with $10 costs. In an action to recover a balance of commissions alleged to be due for sales under a contract not to be performed within one year from the making thereof, the only written contract of employment shown by the pleadings is one made by appellant's sales agent, which agent did not have authority to bind appellant upon such a contract. Upon this motion the bill of particulars must be read in conjunction with the complaint. (Personal Property Law, § 31; Kleiman v. Kupfer Co., 176 App. Div. 253, 254-255; Sturtevant Co. v. Fireproof Film Co., 216 N.Y. 199, 204; May Metropolitan Corp. v. May Oil Burner Corp., 290 N.Y. 260, 266; Packs v. Greenlee, 258 App. Div. 137, 138.) Hagarty, Acting P.J., Carswell, Johnston, Adel and Sneed, JJ., concur.