Amos Parrish & Co. v. Kriegel — 28 Misc. 2d 501

Majority

p. 501

Amos Parrish & Co., Inc., Respondent, v. Max E. Kriegel, Appellant.

Supreme Court, Appellate Term, First Department,

July 7, 1960.

Norman J. Lowey for appellant. Arthur L. Gould for respondent.

The notation on the check that it is an advance against commissions to be earned does not necessarily make the advance a loan, despite the added words “ to be adjusted every month”. Nor was the asserted agreement for a flat salary during the training period inconsistent with the commission arrangement. Hence there were triable issues both on the plaintiff’s cause of action and the counterclaim.

The judgment and order should be reversed, with $10 costs, and motion denied.

Concur—Steuer, J. P., Hofstadter and Aurelio, JJ.

Judgment and order reversed, etc.