#### Bernard Levay, Appellant, *v.*Morris Goldwasser, Herman Goldwasser and Harry Goldwasser, Copartners Doing Business Under the Firm Name and Style of M. Goldwasser & Sons, Respondents.

(Supreme Court, Appellate Term,

February, 1912.)

Contracts — Parties and persons by whom or against whom enforcible — Validity of contracts — Actions on contracts — Sufficiency " of evidence as to amount of compensation due.

Pleading — Matters relating to pleadings generally — Motion to dismiss complaint.

Where payments to a salesman under a drawing account of a certain sum per week are to be deducted from his commissions of a certain per cent, of the total amount of the sales made by him, the" contract will not be construed as one for commissions only and make him a debtor for an excess of weekly payments over commissions earned.

Where the salesman, who was employed for a period of eight months sues to recover on the drawing account from the time of his discharge at the end of the fifth month though he had earned no commission, it was error to dismiss the complaint at the close of plaintiff’s case as he might have earned during the ensuing three months sufficient commissions to make up any deficiency between them and his weekly drawings.

Appeal by plaintiff from a judgment -of the Municipal Court of the city of Hew York, borough of Manhattan, seventh district, dismissing the complaint at the close of the plaintiff’s case.

Morris & Samuel Meyers, for appellant.

Max Greenberger, for respondents.

.Hotchkiss, J.

The plaintiff was employed by the defendants as a salesman,' under a contract by which he was to receive *“*a sum equal to 7% 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 *462in. ¡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, 191Í, 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, 191Í, 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, ás we must assume was the case in the absence of proof to the contrary, the case cannot be distinguished from Durante v. Raimon, 136 App.. Div. 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. Rep. 566; Northwestern Mutual Insurance Co. v. Mooney, 108 N. Y. 118. The fact that, so far as appears, plaintiff had earned' nó 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 tó abide the event.

Seabxtry and Gerakd, JJ., concur.

Judgment reversed and new trial ordered, with costs to Appellant'to' abide event.