124 N.Y.S. 533 | N.Y. App. Div. | 1910
The judgment should be affirmed, with costs.
The action was brought to recover for services under a written contract, whereby the plaintiff was to act as the sales agent of the defendant in New York and New England States. The provision as .to plaintiff’s compensation was as follows: “ For your services you are to receive One hundred and twenty-five dollars ($125) per month and two and one-half per cent (2$%) commission on all accepted shipments up 'to Fifty thousand dollars ($50,000); above Fifty thousand dollars ($50,000) your commission is to 'be Five per cent (5%). Against the above we are to send a check for Fifty dollars ($50) each week to Mrs. I. Lobsitz, 1616 South State St., Syracuse, N. Y. * * * We are also to pay you. traveling expenses at the rate of about Six dollars ($6) pér day while you are on the road.” Under this contract and the renewal thereof the plaintiff continued to work from December 15;-19.05, to September 7, 1907. The defendant sent the check for fifty dollars every week until June 1,
In North- Western Mut. Life Ins. Co. v. Mooney (108 N. Y. 119) where the agreement provided for the payment for services by commissions on the business done by the agent, and that for the first six months the company would advance to him $200 per month, which amount was to be expended in advancing the interests of the company and was to remain a first lien upon the business and renewal interest secured to the agent under his contract, until repaid with interest at seven per cent, the court held that no recovery back c any part of the $200 could be had from the agent; that it was chargeable against his commissions but not against him personally so as to render the sureties upon his bond liable therefor.
In Hollender v. Friedenberg (60 Misc. Rep. 566) the agent was to be paid by commissions and had a drawing account of sixty dollars per week, to be deducted from the commissions earned, and it was held that there was no obligation to pay back any part of the sixty dollars, except out of the commissions. The agent was not personally liable if the commissions fell short of the moneys advanced.
In Wolfsheimer v. Frankel (130 App. Div. 853) the agent was to be paid by commissions and $350 per month was advanced besides
In Durante v. Raimon (136 App. Div. 448) the agent was to be paid by commissions and was allowed to draw sixty dollars per week, the balance of commissions over and above that amount, if any, to be paid at the end of the term, and it was held there was a right to the sixty dollars weekly payment and no obligation to pay back any part of it.
These cases are not entirely like the one we are here considering, but the principle involved is practically the same in all, the right to receive the weekly or monthly payment during the term and no personal obligation to pay back any part of it. That principle is applicable here, and entitled the plaintiff to recover the amount unpaid of the fifty dollars per week until the contract ended, which was September 6, 1907, and the defendant could not set off any deficiency in commissions to equal the amount so paid over.
All concurred.'
Judgment affirmed, with costs.