#### F. Stout Norman, Respondent, *v.*Loomis-Manning Filter Company, Appellant.

Second Department,

January 17, 1908.

Evidence — contract of employment by corporation — when admissible — proof of net profits — extracts from books — charge approved.

A written contract of employment made by tile president of a corporation in the name of the corporation, being one which it had the power to authorize him to make, or to ratify .after it was made, is admissible against the corporation in an action by the employee to recover salary and commissions, for the presumption is that the- president had power to make the contract, and the burden is on the corporation to show that it had not been authorized.

When after the introduction of such contract, the defendant gives no evidence, it is proper to charge that the written contract was the contract between the parties, there being nothing to rebut the presumption in its favor.

Evidence of salaries and other business expenses paid by the defendant is not admissible to arrive at the value of “net sales,” on which the plaintiff was entitled to commissions under his contract. Only discounts can be considered . in valuing net sales.

In such action extracts from the defendant’s books furnished to the plaintiff upon request are admissible to show the sales made by him.

Appeal by the defendant, the Loomis-Manning Filter Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of April, 1907, upon the .verdict of a jury, and also from an order, entered in said clerk’s office on the 23d day of April, 1907, denying the • defendant’s motion for a new trial made upon the minutes.

The action was to recover a balance for three years services as salesman for the defendant. The contract for the three years service was in .writing in the name of the defendant and the plaintiff, and signed by the president of the defendant. It provided for a stated salary and also for commissions on sales.

*Herbert H. Maass*[ *William Klein*with him on the brief], for the appellant.

*Joseph R.*Swan, for the respondent.

Gaynor, J.:

The exception of the defendant to the admission of the written contract of employment' in evidence was not good. Being made by *740the president in the name of the corporation, and one which the. corporation had the power to authorize him to make, or to ratify after he had made it, the presumption was that he had the power to make it, and the burden was on the corporation (the defendant) to show that it had not done so. That sufficed to admit it in evidence *(Patterson*v. *Robinson,*116 N. Y. 193; *Davies*v. *Harvey Steel Co.,*6 App. Div. *166; Nat. State Bank*v. *Vigo Co. Nat. Bank,*50 Am. St. Rep. 330; *Eureka Iron & Steel Works*v. *Bresnahan,*60 Mich. 332). The case of *Camacho*v. *Hamilton Bank Note & Eng. Co.*(2 App. Div. 369) did not have to do with a contract made by an officer but by an employe or agent of a corporation. Inasmuch as the defendant introduced no evidence, the charge of the learned trial judge that the written contract was the contract between the parties was not error. There was nothing to rebut the presumption in its favor. The contract was that the commission was to be on the “net sales”.. The offer to prove the salaries and other expenses of the business to arrive at the net sales was properly not entertained. Only the discounts were to be regarded in arriving at the net sales. The extracts from, the books to show the sales were properly received. They were furnished to the plaintiff at his request at the defendant’s office b'y the manager.

The judgment should be affirmed.

Present—Jenks, Hooker, G-aynor, Pioh and Miller, JJ.

Judgment and order unanimously affirmed, with costs.