Berkowitz v. Mitenthal — 62 N.Y.S. 484

Majority

p. 484

BERKOWITZ v. MITENTHAL et al.

(Supreme Court, Appellate Term.

February 8, 1900.)

Headnote

Work and Labor—Amount op Recovery.

Where plaintiff, by Ms summons and unverified bill of particulars, claimed a certain sum for wages and commissions, but testified that he was to receive commissions only on such goods as were shipped, and that he could not tell whether all the Items in his bill had been shipped or not, and that his sales were less than the sum claimed in his bill, it was reversible error to render judgment for the whole amount claimed.

Appeal from municipal court, borough of Manhattan, Fourth district.

Action by Max Berkowitz against Max Mitenthal and others. From a judgment for plaintiff, defendants appeal.

Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

Shafer & Levin, for appellants.

In this action to recover for wages and commissions, the plaintiff, by summons and his unverified bill of items, claimed a sum certain as Ms due, and for the full amount judgment was rendered in his favor. He testified that, by his contract with the defendants, he was to receive commissions only on such goods as went out in response to Ms erders, and that he could not tell whether all the items included in Ms bill had been shipped or not. Furthermore, the amount of his sales, the basis of commissions’ computation, was, as appears by his cross-examination, very materially less than the sum claimed in his bill, and for wMch he recovered. The judgment should be reversed.

Judgment reversed, and a new trial ordered, with costs to the appellants to abide the event.

FREEDMAN, P. J., concurs. LEVENTRITT, J., in result