Goldberg v. Kratzenstein

28 Misc. 771, 59 N.Y.S. 1104

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1899
• Status: Published

Opinion

Leventritt, J.

The parties to this action entered into a written agreement by which the plaintiff was employed as defendants’ salesman for the period of one year ending April 2, 1899, at a commission of five per cent on all sales effected by him. He was entitled to draw thirty dollars weekly, which was to be charged against his commissions, and at the end of the year an accounting was to be had of his aggregate earnings and weekly drafts. This action was brought to recover a weekly installment which the defendants refused to pay. They justify their refusal on the ground that the plaintiff having been permitted to draw more than thirty dollars a week in the past had agreed that the regular weekly payments should not be resumed until the excess had been extinguished. The fact of the excess was not questioned, but the plaintiff denied this subsequent agreement, and claimed that under the conditions of the original contract he was entitled to draw thirty dollars weekly, irrespective of the total amount advanced to him.

The issue between the parties was thus reduced to a simple one of fact. There is evidence sufficient to support the conclusion that the new agreement was made; and as it is very clear that no injustice has been done in the disposition of the case, the judgment should not be disturbed.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to the respondents.