
    Henry Warshow, Respondent, v. British Importing and Jobbing Co., Limited, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Trial — accounting — action to recover moneys—-when exclusion of evidence is error.
    Where upon an -accounting between plain-tiff and defendant it was agreed that a certain sum shown to be due plaintiff should be paid “ subject to pro rata share of any losses on realization of assets as per balance sheet,” it is for the jury to say, in an action to recover said sum, what deduction should be made by reason of losses incurred on the realization of assets shown on the balance sheet, and the exclusion of evidence of such losses over defendant’s objection and exception is error; and where in addition the jury were instructed that they might deduct the actual loss sustained in the collection of notes or open accounts, provided such loss was by actual failure and that such loss could only be shown by the exhibits in evidence, a judgment in favor of plaintiff entered on the verdict will be reversed.
    
      Appeal by defendant from a judgment of the City Court of the city of New York, in favor of plaintiff, entered upon the verdict of a jury.
    Marcuson Brothers (A. S. Marcuson and Samuel J. Rawak, of counsel), for appellant.
    Henry Kuntz (Abraham P. Wilkes, of counsel), for respondent.
   Bijur, J.

Plaintiff, who had been employed by defendant under a contract whereby he was to receive about one-third of the profits and pay one-third of the losses, accounting to be had December 31, 1912, claimed that upon such an accounting some $4,434, was shown to be due him of which $3,500 was paid, leaving $934 due. It was shown that when the accounting was had the parties agreed that this $934 should be paid plaintiff “ subject to pro rata share of any losses on realization of assets as per balance sheet”—“final settlement of which shall be made June 1st, 1913.”

In leaving to the jury various questions which are not material to this appeal, the court instructed them that they may deduct the “ actual loss sustained in the collection of the notes or open accounts provided such loss is by actual failure.” He also charged, in response to the request of plaintiff’s counsel: “Those losses can only be exhibited by the exhibits in evidence.”

Whether the error be regarded as contained in this charge or in rulings excluding evidence offered by defendant as to losses on accounts other than those exhibited by documentary evidence, is not material as both these erroneous rulings were made and were excepted to by defendant. The learned court also ex-eluded proof of failure of two customers whose accounts were included in the inventory but who did not give notes until after June 1, 1913. I do not appreciate the significance of the date when they gave the. notes. The question that should have been left to the "jury was what deduction should be made from the amount prima facie due the plaintiff by reason of losses incurred on the realization of assets shown on the balance sheet. As evidence as to such losses was improperly excluded over defendant’s objection and exception, and as the jury was also, in addition, improperly instructed in that regard,'the judgment must be reversed and a new trial granted,' with costs to appellant to abide the event.

Seabury and Page, JJ., concur.

. Judgment reversed and new trial granted, with costs to appellant to abide event.  