149 N.Y.S. 943 | N.Y. App. Term. | 1914
The action was brought to recover the sum of $101.75 for alleged commissions earned by the plaintiff in the selling of a machine or instrument, called the ‘ ‘ Calculagraph. ’ ’ The plaintiff entered the employ of the defendant under a written contract,
The court erred in the admission of plaintiff’s exhibit 4, which was a letter containing an unverified declaration of a third party, and as such it was not binding upon the defendant. Rothchild v. Schwarz, 28 Misc. Rep. 521; O’Brien v. Gallagher, 26 id. 838. On a new trial it is possible that the plaintiff may be able to show that he procured two of the four orders prior to the termination of the contract, as alleged in his complaint.
The judgment, therefore, is reversed, a new trial ordered, costs to the appellant to abide the event.
Seabury and Bijur, JJ., concur.
Judgment reversed, new trial ordered, costs to appellant to abide event.