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Schnabel v. American Educational Alliance

140 N.Y.S. 369 Court Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ. Decision date 1913-03-07 English

Delivered by BIJUR, J.

Contents

Majority

p. 369
(79 Misc. Rep. 624.)
SCHNABEL v. AMERICAN EDUCATIONAL ALLIANCE.
(Supreme Court, Appellate Term, First Department.
March 7, 1913.)

Headnote

1. Master and Servant (§ 70[1] ) — Compensation — Contract Construed —
“Drawing Account Per Week Against Commission.”
A contract of employment giving the employé a “drawing account of $50 per week against commission” at a fixed rate is an agreement to pay that amount absolutely and not on condition that orders be secured.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 82-86; Dec. Dig. § 70.*]
2. Trial (§ 40*)—Reading Depositions.
It was error to exclude so-called cross-examination of plaintiff in a deposition, where defendant refused, and plaintiff’s counsel offered, to read the answers.
[Ed. Note.—For other cases, see Trial, Cent. Dig. § 99; Dec. Dig. § 40.*]
Appeal.from Municipal Court, Borough of Manhattan, Fourth District.
Action by E. Carl Schnabel against the American Educational Alliance. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.
Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ.
p. 370
Edward K. Sumerwell, of New York City, for appellant.
"Thomas P. McKenna, of New York City, for respondent.

[1] This judgment seems to have been rendered on the theory that a contract of employment which gave the plaintiff a “drawing account of $50 per week against commission at a fixed rate, etc.,” was not an agreement to pay $'50 per week absolutely, but only conditioned on .the securing of orders. In this the learned court was in error. Schlesinger v. Burland, 42 Misc. Rep. 206 , 85 N. Y. Supp. 350 .

[2] The exclusion of the so-called cross-examination of the plaintiff in a deposition, because the defendant declined to read the answers and plaintiff’s counsel thereupon offered to read them, also constituted reversible error. Kalkhoff v. Russian Church, 67 Misc. Rep. 107 , 121 N. Y. Supp. 713 .

Judgment reversed, and new trial ordered, with "costs to appellant to abide the event. All concur.

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