represent the receive two hundred thousand dollars in salary and a minimum of eight hundred thousand dollars additionally at the same time he was promised orally that he would be see a commission compensation told that he would receive an additional amount of compensation and it was understood yes ten ten to twelve percent of the profit and loss and point of fact he had his coat trader earn lehman fifty five million dollars that year so there was to get ten to twelve percent of that amount leaman lehman had gone and they just had a bad last  even if the facts are the way you said that somebody said to him well we were going to give you this bomb is it your position that they would still be obligated to give him the bonus even if the numbers came out differently by the  year yes they promised him a bonus yeah yes because and this is this is the problem here that they've has become frache and of the term bonus with the turn commission and clearly if it were a bonus which is basically something that comes out of the assets of the earnings of a layman a layman had discretion not to give it to him but if there was a commission regardless of the results the perfect and a commission ways and wages earned by the employee was the services are rendered and the trustee does not dispute that the commission wages were not paid by by  nine that toad owed eight hundred thousand dollars but there's no evidence that this pay but necessarily was a pay but in and satisfaction of the lehman obligation as opposed to the barclay independent obligation there are to understand so you're not arguing that they owe him a discretionary bones you are hearing that somehow there is a separate promise with regard that obligation to do work obligation to pay for the bonus obligation to pay something that's different than where pursuant to that aggression and discretionary written loans policy obligation to satisfy the written contract bonus and we're saying that in addition to that written contract at the time of hire lehman promised mr judkins a separate compensation that really was commission based and this is jerkins cannot state as a matter or rob a cause of action for that commission payment because that payment was in that reduced to writing and as a matter of law that is not correct under the new york lab law section one ninety one one zero which does not require a commission wage to be in writing as opposed to a bonus wage which must be anybody but it was not only in his contract that says that he's entitled to a commission on top of his salary bonus no there's nothing in the written contract which says that but this this promise was made to mr jackson's orally at the same time of hire and for that that was that was his his calculation and as to the and there is evidence as well that barclays did not consider the pavement they made to mr  yes you know your argument is that that was in compensation that was a sign that bonuses barclays as opposed to payment two thousand and eight bonus yes you are and that was a point that yes yes i'm not sure i should have to say anything else to that point but that's the point that that just chapman made that she thought it was incredible that he would get that late that dark of the pay him that much for four months she missing in that well she's missing there was a sign up  evidence that that was a sign a bonus the evidence seems to be before the judge was that he responded to the e mails that said look if you want to be transferred employee let us know and we would see you would take you on as an employee where is there some evidence that there were some other negotiations with regard to how who's going to be compensated or that he was going to be compensated any differently than h and in two thousand and signed a separation agreement and that separation agreement barclays stated that we have paid you you know barclays bonus specifically and also specifically stated that that this is not that you are not point good morning and your honour's may please the court let's start with the eight hundred thousand dollars the bonus that was paid by barclays in this case it's a it's a straightforward even a more straightforward application than the previous case i would say of the law of delegation because here you don't have that you don't have that two thousand and seven issue with the additional money here this is there's no question there's no dispute that mr judkins had a written agreement with l b i for an eight hundred thousand dollars bonus there's no  e that upon the asset purchase agreement taking effect when barclays made the offer and via e mail he accepted it he went immediately to barclays he then has an agreement with barclays that also pays him eight hundred thousand dollars it's initially split between cash equity but ultimately the records not disputed that he was paid that amount in cash he was paid the eight hundred thousand dollars he falls within the definition of a transferred employee and therefore there's no question he falls within the scope of the delegation of the asset purchase agreement so under the l delegation under the hedrick tenth circuit case under the restatement of contracts this is clearly an instance where a owes c one hundred dollars asked b to pay see one hundred dollars if he pays c the hundred dollars that has the same effect as that  discharges as obligation so that's what we have with respect to the eight hundred thousand dollars bonus guaranteed bonus with respect to any additional amount i don't believe that this commission based argument was actually raised below certainly it's true that all of the both lower courts treated this as a request for a discretionary bonus that's the that's the language the bankruptcy court and the district court use there's there's no dispute in the record that bonus policy states disk that bonuses to be you only get a bonus if you have it in writing that was that was that's clearly in the bonus document and mr judge can to myself acknowledge that he understood that anything over and above the eight hundred thousand dollars was not bonus is governed by the bonus plan and the bonus plan says it had to be in writing and mr judkins understood that there's no question he's not entitled to any amount over and above the eight hundred thousand dollars and that and that same argument takes care of any argument under the labor law as well because in order to be entitled to any wages under the labor law you have to have a contractual right to them so flowing from the fact that there was no contractual right to anything over and above the eight hundred thousand dollars that disposes of the labor law a claim as well and the cases that make that clear cited in our brief the last the last point that i would make any questions of course that your honors have is that there's this issue of this other document that was signed after mr judkins separation from barclays and in that agreement first when it says that he acknowledges that he was paid his bonus and in handwriting it has barclays sort of interlinear did with and so it's so it says barclays bonus it's not i don't think there's any record evidence as to what that actually meant but even if it means barclay bonus i don't think that's inconsistent with the fact that he was given he was paid the bonus by barclays the issue is just that pursuant to the law of delegation that satisfied l b i's bonus obligation there is also written in handwriting that nothing in this agreement will waive any claim he has against  know this agreement was signed later after he'd already made this claim against l b i but again we'd submit that's irrelevant because the trustees not relying on his separation agreement for having waived any claim he had against l b i what what satisfies the claim that he had  a few points mr patrick mr fitzpatrick is correct in that we do not use the term commission wage in our argument but we do use the term wage and we didn't quite we didn't quite commission wage versus a bonus wage but the argument was made and the other point is as to what mr jenkins understood again correctly he thought that that the amount what it was was the additional compensation was discretionary but he didn't know the law so what he thought to believe is not is not is not relevant amount to what he believed he was entitled to he did not know his legal rights and asked to that third document i happened to be the attorney that negotiate that document i was there and we were concerned with this with this very thing happening that that some another mr j say that thank you thank you thank you thank you thank you both will reserve decision the case of united states versus griffen is taken out submission and the case is hayes versus smith and wes