Dinkalspiel; J.
.The issues presented in this ease., which was transferred to this Court by the Supreme Court of the State, art* as made in the following statement of the Supreme Court:
"Plaintiff sued defendant, his employer, on a oon-trsot of employment, for the sum of $3598,99, being commissions on net profits of the business of his employer during r.*e year 1914. Defendant answefed denying all liability. There was judgment in favor of plaintifi for $974.93 with intereetj and defendett has appealed.
Before the trial or the oa.se, defendant applied to the Court for the appointment of an expert accountant to examine his books end make report thereon, which report was duly filed. Plaintiff did not take the witness stand on his own behalf; and, after having examined the expert as his witness, he submitted the oa.oe by announcing that he "offers in evldenoe the oontract of empxoyment; the report of the special auditor appointed by the oourt; and the articulations of plaintiff's petition; and rests". And the report showed the amount due plaintiff was $974.93. He did not offer any further eviaenoe; and the district oourt wa.s without authority to render a judgment for a sum in ex-oess of that amutmo.
Subsequently, plaintiff wt3 put on the witness stand and examin-id as if under cross-examination, and he willingly admitted that wha.t the expert had said about the books kept by him as defnndant's book-keeper we.e absolutely oorreot. And defendant, during the trial of the cause, said: ".I offer in evidence the report of iir. George St. Paul, as ohenged and emended by him, ¡.larch 36, 1918, Showing the amount of $974.93 as being the amount due plaintiff herein," And there we judgment as before Bta'ted for that emeunt in favor of pit intlff.
[639]*639lilis oase 'present voluminous statements from the testimony of the experts, George St. Paul and Guy V. W. Lyman, both of whom are expert aooountants and who testified in so far as the amount found by both Messrs. St. Paul s.nd Lyman, thrt same was oorreot, as the amount due ky plaintiff if anything under hiB contract with defendant, so mat to go over the testimony of these two witnesses would be useless end would tend to no goud purpose, sa.ve ana except as reaching the oonolusion, tnese gen-exhaustive tlemen reached as experts in e.n/gs&gxxxKSKX examination of the books of the defendant, and we shell not rurther allude to their testimony, but ascertain from the evidenoe of the other witnesses whether the amount claimed by plaintiff in this case found to be due by the experts named is or not oorreot.
it is contended by the defendant that in connection with the salaries paid his sons, Ben and Jacob Cusima.no, together with the salaries paid to others in the employ of defendant, there was or was not bonuses given by the defendant to his son and other employees, which if psid would detract from the amount due plaintiff in this os.se.
An examination of the wttnasxs witness James Cusimano shows th-’t he is one of the sons of the defendant tnd th>t in the report made to the Court by Mbs St. Psul hsxix there is b statement entitled "James Cusimeno $1800.00.
A. Will you state whct that w»s for? A. Yes, sir, that was .compensation to me for my services to the firm.
BY TEE COURT: Q. You mean th"t was ycur sel'-ry or wt s o. gratuity?
A. Ho, Salery.
Q. Your regular salary? A. Yes sir.
On croes examination.
Q. How were you paid this extra compensation of $1800.00 in cash or by check?. A. I w-s paid this in cash.
Q. At one one time' and in a lump sum? A. Ho sir, I w c paid that-that is, at one time I got-borrowed fifteen hundred dollars from my father when I me married,
Q. ííhen were you married? A. In March 1914.
Q. You borrowed Fifteen Hundred Doll' rs from yc-ur father?
A. Yes, sir.
[640]*6400, How did he give It to you by check or by oesh? A, Cash.
Q. Prom what bunks did he drew It? A. I don't know.
O. Vihet bank did he deposit in at that time? Whet date was thftj and before you cnswer that .yuestion, when were you married? A. Llaroh 19th, 1914.
0. And your father gave you fifteen hundred doliere in cash on whet day? A. A couple of days before getting msrried.
Q. You don't know from wh‘t bank he drew that money? A. Ho, air. He just gave me the cash.
0. Who w*"? the book-keeper • t that time for your father?
A. Hr. Hook.
0. Wh*t you do "With the fifteen hundred dollars your father g- ve you? A, Well X hod to buy furniture and different things vahen I got married,
Q,. How did you get the other three hundred dollars? A. The other three hundred dollars.
q. Yes? A, I didn't get no other, three hundred dollsrs?
Q. Vfnat v/? s your extra compensation for that year?
A. Oh, nineteen hundred, daitacst yes.
Q. Whet v/-s your compensation for that year? A, 'You mean all together.
q. Yet for the year you got married? A. Sineteen hundred dollars.
Q. Then, you got fifteen hundred dollars from your father as a- marriage present? 'A. Ho, he loaned me the fifteen hundred dollars.
Q. Did you ever pay it back to him? A. Yes sir.
Q.. WhenX A. He drew that against my compensation.
Q. He drew th=t against your account? A. Yes, sir.
0. How wksk when had that year's work begun for which you were to receive this extra eeJ compensation? A. The beginning of 1914.
end Q. At the beginning of 1914,flie gave yoxi fifteen hundred dollars in Í.I>. rch 1914? A. He loaned me that in 1914.
Q. Did you pey him b'-ck? A. He. drew three checks against my account, one in June, July and September.
o. How muoh were er-ch of these ohecks? A. Five hundred dollars.
[641]*641Q. How did you receive the other three hundred dollars from him? A, In oash.
Q. What was that for? A. Well, I needed it,
Q. When did you reoeive' it from him? A. I don't remember exactly when I got it from him.
Q. Well approximately what part of the year? A. I couldn't remember exactly.
Q. Do you know what you did with the three hundred doliere? a. Oh, I had to live, I had to buy clothes for myself and my wife.
Q. And you don't know at what particular time it was that you got it? A. I don't remember what time it was, no sir. This witnesses goes on to say that his father besides himself employed in the office, Hr. Hook, end Hr.
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Dinkalspiel; J.
.The issues presented in this ease., which was transferred to this Court by the Supreme Court of the State, art* as made in the following statement of the Supreme Court:
"Plaintiff sued defendant, his employer, on a oon-trsot of employment, for the sum of $3598,99, being commissions on net profits of the business of his employer during r.*e year 1914. Defendant answefed denying all liability. There was judgment in favor of plaintifi for $974.93 with intereetj and defendett has appealed.
Before the trial or the oa.se, defendant applied to the Court for the appointment of an expert accountant to examine his books end make report thereon, which report was duly filed. Plaintiff did not take the witness stand on his own behalf; and, after having examined the expert as his witness, he submitted the oa.oe by announcing that he "offers in evldenoe the oontract of empxoyment; the report of the special auditor appointed by the oourt; and the articulations of plaintiff's petition; and rests". And the report showed the amount due plaintiff was $974.93. He did not offer any further eviaenoe; and the district oourt wa.s without authority to render a judgment for a sum in ex-oess of that amutmo.
Subsequently, plaintiff wt3 put on the witness stand and examin-id as if under cross-examination, and he willingly admitted that wha.t the expert had said about the books kept by him as defnndant's book-keeper we.e absolutely oorreot. And defendant, during the trial of the cause, said: ".I offer in evidence the report of iir. George St. Paul, as ohenged and emended by him, ¡.larch 36, 1918, Showing the amount of $974.93 as being the amount due plaintiff herein," And there we judgment as before Bta'ted for that emeunt in favor of pit intlff.
[639]*639lilis oase 'present voluminous statements from the testimony of the experts, George St. Paul and Guy V. W. Lyman, both of whom are expert aooountants and who testified in so far as the amount found by both Messrs. St. Paul s.nd Lyman, thrt same was oorreot, as the amount due ky plaintiff if anything under hiB contract with defendant, so mat to go over the testimony of these two witnesses would be useless end would tend to no goud purpose, sa.ve ana except as reaching the oonolusion, tnese gen-exhaustive tlemen reached as experts in e.n/gs&gxxxKSKX examination of the books of the defendant, and we shell not rurther allude to their testimony, but ascertain from the evidenoe of the other witnesses whether the amount claimed by plaintiff in this case found to be due by the experts named is or not oorreot.
it is contended by the defendant that in connection with the salaries paid his sons, Ben and Jacob Cusima.no, together with the salaries paid to others in the employ of defendant, there was or was not bonuses given by the defendant to his son and other employees, which if psid would detract from the amount due plaintiff in this os.se.
An examination of the wttnasxs witness James Cusimano shows th-’t he is one of the sons of the defendant tnd th>t in the report made to the Court by Mbs St. Psul hsxix there is b statement entitled "James Cusimeno $1800.00.
A. Will you state whct that w»s for? A. Yes, sir, that was .compensation to me for my services to the firm.
BY TEE COURT: Q. You mean th"t was ycur sel'-ry or wt s o. gratuity?
A. Ho, Salery.
Q. Your regular salary? A. Yes sir.
On croes examination.
Q. How were you paid this extra compensation of $1800.00 in cash or by check?. A. I w-s paid this in cash.
Q. At one one time' and in a lump sum? A. Ho sir, I w c paid that-that is, at one time I got-borrowed fifteen hundred dollars from my father when I me married,
Q. ííhen were you married? A. In March 1914.
Q. You borrowed Fifteen Hundred Doll' rs from yc-ur father?
A. Yes, sir.
[640]*6400, How did he give It to you by check or by oesh? A, Cash.
Q. Prom what bunks did he drew It? A. I don't know.
O. Vihet bank did he deposit in at that time? Whet date was thftj and before you cnswer that .yuestion, when were you married? A. Llaroh 19th, 1914.
0. And your father gave you fifteen hundred doliere in cash on whet day? A. A couple of days before getting msrried.
Q. You don't know from wh‘t bank he drew that money? A. Ho, air. He just gave me the cash.
0. Who w*"? the book-keeper • t that time for your father?
A. Hr. Hook.
0. Wh*t you do "With the fifteen hundred dollars your father g- ve you? A, Well X hod to buy furniture and different things vahen I got married,
Q,. How did you get the other three hundred dollars? A. The other three hundred dollars.
q. Yes? A, I didn't get no other, three hundred dollsrs?
Q. Vfnat v/? s your extra compensation for that year?
A. Oh, nineteen hundred, daitacst yes.
Q. Whet v/-s your compensation for that year? A, 'You mean all together.
q. Yet for the year you got married? A. Sineteen hundred dollars.
Q. Then, you got fifteen hundred dollars from your father as a- marriage present? 'A. Ho, he loaned me the fifteen hundred dollars.
Q. Did you ever pay it back to him? A. Yes sir.
Q.. WhenX A. He drew that against my compensation.
Q. He drew th=t against your account? A. Yes, sir.
0. How wksk when had that year's work begun for which you were to receive this extra eeJ compensation? A. The beginning of 1914.
end Q. At the beginning of 1914,flie gave yoxi fifteen hundred dollars in Í.I>. rch 1914? A. He loaned me that in 1914.
Q. Did you pey him b'-ck? A. He. drew three checks against my account, one in June, July and September.
o. How muoh were er-ch of these ohecks? A. Five hundred dollars.
[641]*641Q. How did you receive the other three hundred dollars from him? A, In oash.
Q. What was that for? A. Well, I needed it,
Q. When did you reoeive' it from him? A. I don't remember exactly when I got it from him.
Q. Well approximately what part of the year? A. I couldn't remember exactly.
Q. Do you know what you did with the three hundred doliere? a. Oh, I had to live, I had to buy clothes for myself and my wife.
Q. And you don't know at what particular time it was that you got it? A. I don't remember what time it was, no sir. This witnesses goes on to say that his father besides himself employed in the office, Hr. Hook, end Hr. Filiberto, and that ecch one of these clerks besides getting solarles were receiving additional compensation, Mr. Filiberto, fifteen hundred dollars, he was getting eighteen hundred dollars and his brother twenty four hundred dollars; plaintiff, Hook received besides his salary of twenty five dollars a week, fifteen per cent of the profits; does not know the approximate amount that his father had Aggregated the figures would amount to.
Q. That's whe.t I want to get at, In other words, yxExfxkkxx your father gave you as a clerk twenty-five hundred dollars a year? A. Yes sir.
Q.'And he gave your brother twenty nine hundred dollars a year? A. Yes, sir.
Q. He gave Mr. Filiberto twenty five hundred dollars a year and he kept his bookkeeper at twenty-five dollars a week
A. And fifteen per oent of the profits.
Q. And you say he didn't think that would amount to anything?
A. I say, I think he didnlt' know what the profits would be. No one oould tell what the profits would be at the end of the year.
Q. How, how did you seoure your compensation for 1913 from your fatherj A. I am telling you.
[642]*642Q.. No, you' are not*
A, I am telling you, If he loaned me that compensation and then takes- I mean, If he loaned me the fifteen hundred dollars In March, 1914} then, instead of paying me my compensation of 1914, he kept that against what I owed him.
Q.' For 1914? A, No lop 1913.
Q. Then what were you paid for 1914? A. I only drew nine hundred dollars against my oredit for 1914.
Q. How did you receive the balance of that oredit? A, I didn't reoelve it, it is to my credit yet.
(J. It is still to your oredit? A. The hálanos of eighteen hundred dollars.
Q. How much of the balance? A. Nine hundred dollars.
Q. Thats for 1914? A. Yes.
Q. And how much was your compensation for 1915? A. I didn't get any, my salary was increased in 1915.
Q. To.howmuoh? A. Thirty Five Dollars.
Q. What did you get in 1916 in the shape of extra compensation?
A. Hone.
Q. What did you get in 1917? A, MonJE,
Q. Whet we.s your salary in 1917? A. Well, our place burned down in 1917.
Q. Whet was your salary in 1916? A. My salary was brought down to thirty doliere.
Q. Is the business still running nay? A. Yes sir.
Q. What is your salary now? A. Forty dollars.
It went up to forty dollars? A. Yes, sir.
Q. Hov,r much have you got to your oredit with Cusimano & Company?
A. I have nothing to my oredit.
Q. You have nothing, I thought you said you xii still have nine hundred dollars? A. Oh, -well -chats the old business, against my compensation you mean.
Q. How much is to your credit with Cusimano & Company?
A. Nine hundred dollars.
Q. And you have never drawn against that? A,. Not yet.
Q. Why not? A. Because I don't need the money*
[643]*643q, Then you heve gone along during the last three years on thirty five dollars a week, thirty dollars a week, and now forty doliera a week? A. Yes sir,
q. And the nine hundred dollars is still there untouohed by you?
A. Yes sir.
Ben Cusimano after giving his neme, stating that he is vb=s e, xsbsxs£:c&b£ son of defendant, that he worked at his place," worked ;.s foreman upstairs, and that he was thirty years old, •further testified:
q. Your neae appears in the report of Mr. St. Paul herein as being entitled, in addition to your weekly s-'lei-y, to compensator. in lump sum of $1800. Did you receive all.or any part of that $1800? A. I received all of it, and' not he.ving e. bank account, I turned it over to my father and took it as 1 wanted it.
Q. You actually received all of that eighteen hundred dollars??
A. Yes, sir.
q. How was that $1800 paid to you? A. All at once.
0,. In what way, by check or cash? A. By check.
Q. Wh"t did you do with the oheok? A. Turned it over to my father,
q. How did you get the oash then? A. Well 1 took it out as I wanted 'it in cash money, any time I needed it I asked him for it and he turned it over to me when I needed it.
q. Hot/ many times did he make payment to you of this $1800?
A. Well, one of five hundred dollars#
q. What did you do with the five hundred dollars. A. What did I do with it? q. Yes — don’t repeat my questions. What did you do with it? A. I spent it.
Q. How? A. Foolish,
q. What Send do. you cell foolish? Exnlein thst. A, Well, X spent the •first $500 foolish .and the rest I invested and lost,
q. In whrt did you invest it? A. I don’t remember whs-t X Invested the lost.
q. How did he pay you the $500? A. In oheok.
q. What did you do with that oheok, go to a bank and cash it?
A. Yes sir.
[644]*644Q. Vihat bank? A. The Commercial Germrnia Bank,
Q. You endorsed the check and presented it? A. Yes.
q, T/hat other sums did -you receive from your fsther?
A. A thoussnd dollars was the other cheok? q. How did you cash it? A. By check.
Q. You went to the benk xH&sscshEX and cashed it and ■ drew a thousand dollars? A. Yes.
Q. What did you do with the thousand dollars? A. What did X do with the thous-nd dollars? q. What did you do with it? jffiounsel for defendant interposed and this occurred.
Mr. Mkrinoni: What thousand dollars do you refer to?
By Hr. O'Connor: The thousand dollars he says his f-ther gave him/
By the Court!’
q. Can't yon answer the question? A. Yes.
q, Well answer, it and we will save time? A. Well, I loaned most of.it out.
Q. To whom? A. friends.
q. Heme the friends? A. One 'of them is Joe Iieonie of Hew York City.
q. Do you know his s,ddress? A. Ho, X haven't received a letter fn six months-.
q. How much of the thousand dollars did you loan to Joe Leonie of Hew York City, whose address you don't know? A. Five hundred dollars.
Q. Did he ever pay you back?.A. Ho.
Q. Did you get e. none from him on that? A. Ho.
q,. You just loaned it to him? A. Yes sir»
q. What did you do with the other five hundred dollars?
By the Court!
The v/itness is an intelligent witness. If you don't know-whet you did with it, say so.
Then asked by his counsel, Mr. Ms-rinoni:
Q. Are you married? A. Ho.
By the Court:
Q,. You can't answer th’-t question? Do you know wh-'t you did [645]*645with the othsr five hundred dollars?
A. (No answer).
Q. If you don11 remember,say so? A. I don't remember that.
Q, And you swear the additional compensation was §1800.00.
A. (noanswer)
Answer the question.
A. Mr. Marinoni made a mistake when he s''id §1800.
Q. How muoh was your additional compensation? A. Twenty-four hundred dollars.
Q. Then, you have accounted for eighteen hundred dollars. How did you receive the additional six hundred dollars? A. The same way.
Q. Ihst do you cell the same way, by check or cash? A. By oheok.
Q. What did you do with the additional six hundred dollars?
A. V/hy, I spent most of the money.
Q. In whst way? A. Buying things.
Rudolph J. Derbes, a witness says substantially that he was- first employed e.bout December 1913 by Mr. Cus imano; he is an expert aooountant and licensed public accountant.
Q. Did Mr. Cusimano give you any instructions in reference to any entries to be made in the accounts of 1913? A— Yes, sir.
Q. Now state whot Shat was?
A. Well, one particular instruction was either directly or through Mr. Hook, to make entries for two salaries, yearly salaries, ?.s far ss I oar. remember, '§1500 each for his two sons. Now, I knew s.t the time thr-t they h*'d drawn their weekly salary, and I got the impression th»t it was only put on the bouks in order to reduce the profits, to reduce the inoome tax.
Objection w-s made as to witness's Impressions and the objection was sustained.
Q. Now, st»te why you believed th"t; st-. te the facts.
A. Because the salaries having been drawn weekly and the profits appeering surprisingly large, they were, rs f-r as I can remember, reduced by tho~e tV' entries. Now, I di'-oussed th*t at the time, and T «• id: »lf you ..re £.cflmg to„_
[646]*646Q. You discussed it with whom? Á. Mr. Cusimeno and Hook.
Q. Did you disouss it With Mr. Cusimano himself? A. Yes.
Q..How, go ahead and state what you discussed.
A. I said: "If you are going to put those se lo ries on the boolcs, you have to pay them; you oan't put any fictitious .entries on the books"; and six months after I met Mr. Hook '¿nd asked him if they were paid- — ,.
Q, Do you' know .whether they were paid or not?
./A. tfel-1, subsequently, X don't know.
'Q. Did you"work for defendant in 1914? A. X worked in .about Maroir, I think.
Hi How whs there anything said then about bonuses?
A, Ho, at the time of making the entry I made that remark, that if they were put on the books, they would have to be paid.
Q. What was the character of the conversation that led to ■ that? What did Mr. Cusimano say to you? What did you say to' him? A. He transmitted the instructions to me to put it on the books/ I think, through Hr. H6ok, because he never would talk to me. But he was present, he would not speak 'to me beoause I was deaf.
£}. How, then state to the Court what was the object of the conversation, whet was the subjeot of the conversation. What were you all driving at? What were you trying to aooomplish?
A. I remarked: "Itf you are going to put salarles on the books, after salaries have been paid weekly, it appears to me as though it is not a-bona fide salary; you have got to pay them, and, if you want to put them on the books, you better p^y them".
Q. What did he say to that?
A. Well, Mr. Cusimano didn't answer, but he Just simply led me to believe it would be paid. Be made no answer to my statement at all.
Q. You were instructed to meke entries? A. Yes.
Q. Why were you instructed to make them? A. To oloee the books for the year 1913. The income tax was discussed at the time. [647]*647I don't remember whet we s said, but discussing the inoome tax and the closing of the hooks, I wee instructed to put two salaries on the hooks, which, I think, e-re $1500; I don't remember if it was íHtooi twelve or fifteen hundred, but something like that. X said "Thets oil right, so for os it goes, but you hove to pay them; I em going to put these salaries cn the.books, but, if I do, you hove to pay them; I don't w"nt any ftaitiax fiotitious entry"; and no ons"-er- was mode that I remember now to thst statement of mine.
Q. What X wanted to know from you at the time you were so instructed to make those entries, wh»t wee the dleou-sion?
A. The disoussion was to reduce the profits for the income.
Q, The discussion you sey wes to reduce the profits for the inoome tax? A. Yes, but now who brought the subject up, I can't sey positively, but Mr. Hook spoke about it and I spoke about it and Mr. Ouasims.no spoke about it and it seems as though that entry wc.s a result of th»t discussion. After stating the facts at the time, I have comp-le-ely forgot all about it. In other words, I didn't went to be putting en-gríes on the books th't would be fictitious, ?nd I so stated.
The testimony of the defendant, together with thst of the plaintiff would throw no further light upon this intricate subjeot. From the testimony of the two sons, employees of the defendant, together with str tenants of conversation had between plaintiff, defendant end Mr. D»rbes, we are convinced thst the bonuses or addition? 1 s,:l»ries sworn to by the defend'nt and his sons, giving credit to the testimony of these perties interest in this o.-se as far as it is possible sc to do, th-t if the amounts paid to the sons by the father were oorreot, it must h‘ ve been in the nature of f. gratuity or otherwise, and net es oempenss tion in siddition oc the sel'. ries received by them, snd therefore, we conclude SfcxX oennot be ohurged to che jileintiff in this cEse, in order to reiduce the .profits of the business •-■s shown by the kxjsüexíxíxxk experts in this a> se.
[648]*648Hia honor, the Judge of the lower Court h»d these witnesses ell before him end r-fter a orreful investigation of the whole matter ot issue, came to the conclusion th- t the amount ss fixed by the experts due .->1= intiff we s the correct sum. He w s in s. better
position to see from their actions^ their conduct, together with their testimony, to decide the issues : resented here, thf-n we are, end we conclude th^t all the circumstances surrounding this ca.se, th-'t hie decisions was correct.
For the reasons assigned, it is ordered, adjudged end decreed th»t the judgment of the Court t quo be and the seme is hereby affirmed at the cost of defendint in both .f-Courts.
-Judgment affirmed»