Kaempfer v. Polskin — 156 N.Y.S. 1100

Majority

p. 1100

KAEMPFER v. POLSKIN et al.

(Supreme Court, Appellate Term, First Department.

January 31, 1916.)

Headnote

Appeal and Error <©=1140—Determination—Remittitur.

Where, in an action for commissions claimed by a salesman, the court submitted and the jury awarded recovery on claims upon which the salesman did not demand recovery, judgment will be reversed and the cause remanded, unless plaintiff consent to a remittitur of such amounts.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. <S=1140.]

<©^jFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from City Court of New York, Trial Term.

Action by Adolph Kaempfer against Hyman Polskin, Jacob Polskin, and Hyman Polskin, Jr., copartners trading as H. Polskin & Sons. From a judgment for plaintiff, and an order denying new trial, defendants appeal. Modified and affirmed, on condition that plaintiff consent to remittitur, and, in case of failure, reversed and remanded.

Argued January term, 1916, before GUY, P. J., and BIJUR and GA VEGAN, JJ.

Myron Yochelson, of New York City (Alex B. Greenberg, of New York City, of counsel), for appellants.

Maurice L. Shaine, of New York City (Edward C. Weinrib and Leonard F. Fish, both of New York City, of counsel), for respondent.

Plaintiff sues for commissions alleged to have been earned by him as salesman under a written agreement beginning September 18, 1914. He disclaimed recovery upon orders from customers given prior to that time.

Although the learned trial judge below, over the objection of defendant, submitted to the jury the question whether plaintiff had earned commissions on two orders, known as the Sears-Roebuck and Smythc orders, the evidence is conclusive that these orders were given to and received by the defendant prior to the plaintiffs employment under the written agreement mentioned.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event, unless within five days after the entry and notice thereof of this order in the City Court the plaintiff will stipulate to reduce the judgment to the sum of $965.20, with costs in the court below, in which event the judgment, as so modified, will be affirmed, without costs in this court.