Guttentag v. Bache Realty Co. , 141 N.Y.S. 477 ( 1913 )

GUY, J.

Plaintiff sues to recover damages for wrongful discharge, under, a contract with defendant whereby he was employed for one year, as a sales manager, at the rate of 15 per cent, commission, with a drawing account of $35 a week, to be charged against commissions earned. The defense was that the discharge was justified because of .plaintiff’s misconduct. Defendant also counterclaimed for money loaned and advanced at plaintiff’s request to pay plaintiff’s subagents, and a separate counterclaim for conversion.

The finding of the jury that plaintiff was wrongfully discharged is fully sustained by the evidence. The court held that the drawing account was a weekly salary of $35 a week, and that, if plaintiff was wrongfully discharged, he was entitled to recover said sum of $35 per week for the unexpired term of his contract, less $175 earned by him during that time at other employment.

Defendant sought to prove under its counterclaim that defendant loaned to plaintiff sums aggregating $943 to pay plaintiff’s subagents, who were in plaintiff’s employ; but this evidence was excluded, and defendant excepted. This evidence was admissible, as tending to establish defendant’s counterclaim, and the exclusion of such evidence constituted reversible error.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.