101 N.Y.S. 790 | N.Y. App. Term. | 1906
This is an appeal by the defendants from a judgment of the Municipal Court in favor of the pJaiutiff
The plaintiff entered upon his duties under this agreement, but earned no commissions. He was ultimately discharged by the defendants after two weeks’ service. At the time of his discharge the defendants had paid him $80 of the $320 advanced commissions to be paid. Plaintiff then brought this action to recover the balance of $240 for the remaining six weeks, basing his claim upon his alleged wrongful discharge by the defendants. Judgment for this amount was rendered in favor of the plaintiff. The defendants, among other defenses, alleged that the plaintiff had not the legal capacity to perform the contract sued upon, in that he had not obtained a certificate to act as an agent from the Superintendent of Insurance, as required by section 91 of the Insurance Law. The contract was dated June 6, 1904; the plaintiff got his certificate from the Insurance Department August 26, 1904. Under section 91 of the Insurance Law, the plaintiff was prohibited from carrying out the contract. This fact alone was sufficient to defeat his recovery. Having reached this conclusion on the ground stated, it is unnecessary to consider the other ground of error assigned by the appellants.
The defendants set up a counterclaim to recover the eighty dollars paid to the plaintiff. The evidence shows that the defendants knew of the plaintiff’s statutory inability to perform the contract with them at the time they paid him the money. In disbursing this money they were paying him for
Judgment reversed, with costs, and judgment directed for the defendants, dismissing the complaint on the merits.
Gildebsleeve and Fitzgebald, JJ., concur.
Judgment reversed, with costs,, and judgment directed for the defendants, dismissing the complaint on the merits.