Stanley v. Leary — 240 N.Y. 659

Majority

p. 659

Thomas M. Stanley, Appellant, v. Daniel J. Leary et al., Copartners under the Firm Name of Leary & Co., Respondents.

(Argued May 8, 1925;

decided June 2, 1925.)

Headnote

Contract — master and servant — action for services — when proper 1o deduct from, gross receipts sum paid as excess profits tax in computing compensation of profit-sharing employee.

Stanley v. Leary, 208 App. Div. 714 , affirmed.

Appeal from a judgment, entered February 2, 1924, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The plaintiff, a profit-sharing employee, brought this action against his employers for an accounting of an alleged unpaid balance of compensation for services rendered in the year 1917, claiming the same to be due because the defendants, in computing

p. 660

the amount of his compensation, included as a deduction from their gross receipts a sum paid by them to the United States as excess profits tax.

Anson Burlingame Cole and George R. Holahan, Jr., for appellant.

Siegfried F. Hartman for respondents.

Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.