Drake v. Pierce Butler Radiator Corp. , 108 N.Y.S.2d 707 ( 1951 )

Memorandum: The judgment should be modified by reducing the award of $11,075.75 made by the Official Referee to the sum of $5,228.89. The evidence clearly establishes that on all sales of boilers made outside of plaintiff’s territory for installation therein, plaintiff’s commission was limited to 70% of the discount of 20% allowed by defendant to its agents. We feel that the Referee erred in allowing commissions in excess of 70% on such sales. The over-allowance amounts to $802.86. We also reach the conclusion that the Referee erred in allowing plaintiff $4,384 for extra services performed on boiler installations allegedly due to manufacturing defects in said boilers and for allowing $660 for Clayton valve changes. The testimony supporting the claims for such services is admittedly predicated upon a conservative guess. Testimony of such a character fails to justify the allowances made. All concur. (Appeal from a judgment for plaintiff in an action under a contract of hiring.) Present — Taylor, P. J., McCurn, Vaughan, Kimball and Wheeler, JJ. [See post, p. 844.]