Sulzbacher v. Duplex Electric Co.

150 N.Y.S. 695

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 24, 1914
• Status: Published

Opinion

BIJUR, J.

Plaintiff sued on two causes of action. On the second, being in reference to a special transaction, the jury found for defendant. It need not be discussed, and is not involved in this appeal. The first cause of action was based on a contract between plaintiff and defendant reading, so far as material, as follows:

“It is my understanding that I continue my services as heretofore with a drawing account of $25 per week on a basis of 15 per cent, commission on the selling price of all contracts, * * * with the understanding that while I am employed by the company I am to be advanced a drawing account of $25, with whatever traveling expenses may be incurred while I am out of the city.”

' Plaintiff contended that under this contract he was entitled to 15 per cent, commission and a salary of $25 per week. The contract seems to me to be plain, unequivocal, and unambiguous, to the effect that the $25 a week was to be a “drawing account” and an “advance.” Whether it was to be repaid by plaintiff absolutely, or only out of commissions earned, is a question that does not arise in this case. It certainly was not additional compensation. Even if we were in doubt on this subject, plaintiff’s repeated receipts, uninterruptedly and consistently reciting this amount as “salary,” would prove what his understanding in this respect was during the term of his employment; but, as I have indicated, the agreement requires no parol evidence' to assist in its construction.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.