Hyperlawhypertext legal database Glassberg v. Mark 130 N.Y.S. 238

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Glassberg v. Mark

130 N.Y.S. 238 Court N.Y. App. Term Decision date 1911-06-29 English

Delivered by GUY, J.

Contents

Majority

p. 238
GLASSBERG v. MARK.
(Supreme Court, Appellate Term.
June 29, 1911.)

Headnote

Master and Servant (§ 70[1] )—Compensation—Amount.
Under an agreement to pay a commission for the sale of goods, half the commission to be paid on the receipt of an order and the other half on receipt of check from customer, where a part of a bill of goods sold was returned, commissions should be computed only on the balance.
[Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. §§ 82-86; Dec. Dig. § 70.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by Anna Glassberg against Harry Mark. From a judgment for plaintiff, defendant appeals.
Modified and affirmed.
Argued before SEABURY, GUY, and BIJUR, JJ.
Louis Levene, for appellant.
Otto A. Samuels, for respondent.

Plaintiff sued for work, labor, and services, and it was conceded that the defendant employed the plaintiff as a saleswoman of boy’s clothing and agreed to pay her 3 per cent, commission on goods sold to the jobbing trade and 5 per cent, on goods sold to the retail trade. After a trial the court gave judgment in favor of plaintiff for the sum of $57.06.

It is evident from a reading of the record that the court omitted to give the defendant credit for the sum of $20, concededly paid to the plaintiff by the defendant. The plaintiff, as one item of her claim, sold to one Ansorge a bill of goods amounting to $233.48. Of these goods $117.30 in amount were returned. By the terms of the agreement between the parties:

“Half the commissions shall be paid on receipt of. any order, and the other half on receipt of check from the customer to whom the goods were sold.”

The commissions, therefore, to which plaintiff was entitled, should have been computed upon only $116.15 worth of goods, and the amount allowed plaintiff on this sale should have been but $5.80, instead of $11.25, allowed by the court.

Judgment modified, by reducing the same to the sum of $31.26 and appropriate costs in the court below, and, as modified, affirmed, without costs of this appeal to either party. All concur.