Lewis De Groff & Son v. Ragona , 157 N.Y.S. 1052 ( 1916 )

WEEKS, J.

Plaintiff has recovered a judgment against the defendant for the sum of $305, besides costs, arising out of the following circumstances :

One Azara had entered the employment of the plaintiff as a salesman. His term commenced on September 20, 1913 and he continued in plaintiff’s employ until some time in February, 1915. On October 15, 1914, the defendant herein entered into an agreement in writing with the plaintiff that:

“Said salesman [Azara] will on Ms part well,' promptly, and faithfully account for and pay and deliver to Lewis De Groff & Son all moneys, collections, and goods which shall come into the control and possession of said salesman.”

Claiming that Azara had collected and failed to account for $305, the plaintiff brought this action upon said instrument. Upon demand a bill of particulars was furnished, containing an itemized statement of moneys collected by Azara from customers of plaintiff which he had failed to turn over, but nothing appeared therein showing when such collections were made. It was stipulated upon the record that the defendant was not liable under his agreement of indemnity with plaintiff for collections made prior to October 15, 1914, and although it was stipulated by the respective attorneys that Azara had collected from plaintiff’s customers said sum of $305 and had failed to turn it over to plaintiff, “for the reason, as he claims, that the plaintiff owes him for overcharges and deductions in a sum far in excess of said amount,” although the defendant made no effort to sustain such claim, it was nowhere shown how much of said amount was collected after defendant became the surety of Azara. This was an essential part of the plaintiff’s affirmative proof, and for a failure in this respect there must be a new trial.

Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.