Opinion
February, 1912.
Morris Samuel Meyers, for appellant.
Max Greenberger, for respondents.
The plaintiff was employed by the defendants as a salesman, under a contract by which he was to receive "a sum equal to 7 ½ per cent. on the total amount of sales made by him," it being further agreed that plaintiff should "receive a drawing account of $25 per week" while in New York city, and sixty dollars per week while traveling elsewhere, such payments to be deducted from his commissions. The term of employment was from February 28, 1911, to November 1, 1911. Plaintiff worked until August 5, 1911, when he was discharged. He had been paid $1,005.67 on his drawing account for the period prior to his discharge. Plaintiff showed that, from that date until November 1, 1911, his drawing account at the rate of twenty-five dollars per week would have been $254.33, and rested. The complaint was dismissed because the plaintiff had not proved what commission he had earned or would have earned had he remained in defendants' service.
This was error. If the plaintiff was improperly discharged, as we must assume was the case in the absence of proof to the contrary, the case cannot be distinguished from Durante v. Raimon, 136 A.D. 448. The respondents argue that the contract gave plaintiff a right to commissions alone and no salary; but, to sustain the decision below, it would be necessary to hold not only that the contract gave plaintiff the right to commissions, but also that the appellant became respondents' debtor to the extent that the sum drawn each week may have exceeded the commissions earned. The contract is not susceptible of such construction. Hollender v. Friedenberg, 60 Misc. 566; Northwestern Mutual Insurance Co. v. Mooney, 108 N.Y. 118. The fact that, so far as appears, plaintiff had earned no commissions before his discharge affords no basis for dismissing the complaint, inasmuch as he might have earned in the ensuing weeks commissions sufficient to make up any deficiency theretofore resulting between his earned commissions and the amount of his weekly drawings.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
SEABURY and GERARD, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.