Herman v. Lecy — 72 N.Y.S. 1107

Majority

p. 1107

HERMAN, Respondent, v. LECY et al., Appellants.

(Supreme Court, Appellate Term.

June, 1901.)

Headnote

Action by William Herman against Samuel Lecy and others.

Levy & Unger, for appellants. E. A. Klein, for respondent.

The plaintiff’s claim was for $79.13, under an alleged agreement for 5 per cent, commissions upon a sale of merchandise under an alleged employment by the defendants. The plaintiff, if his testimony was believed in the court below, was entitled to a judgment for his whole claim. If the defendants’ contention was credited, they were entitled to judgment. The learned justice awarded judgment for plaintiff in the sum of $26.07. This award is in no way supported by the proofs. An arbitrary decision cannot be upheld on appeal, because there is no evidence to support it and it is wholly without the principle of secundum allegata et probata. Judgment reversed, and new trial ordered, with costs to abide event.