Kauders v. Gorki — 8 Misc. 2d 948

Majority

p. 948

William G. Kauders, Respondent, v. Morris Gorki et al., Individually and as Copartners Doing Business under the Name of Goody Novelty Co., Appellants.

Supreme Court, Appellate Term, First Department,

February 7, 1957.

Arthur Just Hartley and Sidney Fluhe for appellants.

Herman W. Feder for respondent.

The opposing contentions of the parties created issues of fact which should have been presented to the jury for determination under an appropriate charge. If, as plaintiff indicates, the instruction to find for plaintiff on his commissions on sales was a directed verdict it was error for the court to so direct since plaintiff did not make the request (Billig v. Don Allen Midtown Chevrolet, 110 N. Y. S. 2d 162 ). Moreover the burden of proving damages by competent evidence is upon plaintiff and the jury should have been instructed accordingly. The verdict of the jury was defective in that it failed to assess the amount of damages (Civ. Prac. Act, § 460).

The judgment should be reversed and a new trial ordered, with $30 costs to appellants.

Hecht, Aurelio and Tilzer, JJ., concur.

Judgment reversed, etc.