Majority
p. 493(61 Misc. Rep. 314.) FREUDENBERG v. COOPER. (Supreme Court, Appellate Term. December 16, 1908.) Argued before GIEGERICH, HENDRICK, and FORD, JJ.
Headnote
Principal and Agent (§ 78[1] )—Mutual Liabilities—Advances.An action will lie for advances made to a salesman, in the absence of a specific agreement as to their payment,- after the termination of his employment.
[Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 78.*]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Moritz Freudenberg against 'Charles Cooper. From a judgment for defendant, plaintiff appealed.
Reversed, and new trial ordered.
p. 494
Kauffman & Herzberg, for appellant.
Jackson, Hollander & Frank, for respondent.
The judgment of the trial court, based on the authority of Schlesinger v. Burland, 43 Misc. Rep. 306 , 85 N. Y. Supp. 350 , was erroneous. That case is authority for the proposition that during the term of the salesman’s employment no suit will lie for advances made, because the salesman may make up for such advances by the earning of commissions at any time before the termination of the employment. In this case the employment was terminated, and the case of Schlesinger v. Burland- does not apply.
Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.