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Tausig v. Drucker

88 N.Y.S. 391 Court N.Y. App. Term Decision date 1904-05-19 English

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p. 391
TAUSIG et al. v. DRUCKER.
(Supreme Court, Appellate Term.
May 19, 1904.)

Headnote

1. Agency— Commissions—Advancements—Complaint—Sufficiency.
A complaint stating that, pursuant to a contract by plaintiffs to advance defendant $15 a week on account of commissions to be earned by him, and a further sum for traveling expenses, plaintiffs had made advancements exceeding the commissions earned, by a certain sum, but not showing how much was advanced on account of commissions, and how much for traveling expenses, does not state a cause of action.
Appeal from City Court of New York, Special Term.
Action by Edward Tausig and others against -Henry M. Drucker. From a judgment for defendant, plaintiffs appeal. Affirmed.
Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.
Powell & Cady, for appellants.
M. S. & I. S. Isaacs, for respondent.

We are of the opinion that the complaint does not state a cause of action, and therefore the judgment appealed from is affirmed, with costs.

It is alleged in the complaint, among other things, that the plaintiffs were to make advancements to the defendant, on account of the commis

p. 392
sions to be earned by him, to the extent of $15 per week, “and a further sum for traveling expenses,” and that the advancements exceed the commissions earned by the sum of $499.99. It nowhere appears how much was advanced on account of the sum of $15 per week, or what sum was advanced for traveling expenses. The whole $499 may have been advanced for traveling expenses. In Schlesinger v. Burland, 42 Misc. Rep. 206 , 85 N. Y. Supp. 350 , it was held that a contract of employment as a salesman at a certain commission, the employer to “advance” the salesman a certain sum monthly, “said advances to be charged and deducted from the c'ommissions * * * computed at the end of the period of employment,” did not create a pergonal liability on the part of the salesman to repay the advances in excess of commissions earned.

Judgment appealed from is affirmed, with costs, with leave to the appellant to amend the complaint and plead anew on payment of costs in the court below and in this court.

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