
    GOLDBERG, Appellant, v. KRATZENSTEIN et al., Respondents.
    (Supreme Court, Appellate Term.
    June 28, 1899.)
    Action by George W. Goldberg against Herman Kratzenstein and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Emanuel Townsend Goldberg, for appellant. Abraham Gruber, for respondents.
   _ LEVENTRITT, J.

The parties to this ac-_ tion entered into a written agreement, by which the plaintiff was employed as defendants’ salesman for the period of one year, ending April 2, 1899, at a commission of 5 per cent, on all sales effected by him. He was entitled to draw §30 weekly, which was to be charged against his commissions, and at the end of the year an accounting was to be had of his aggregate earnings and weekly drafts. This action was brought to recover a weekly installment which the defendants refused to pay. They justify their refusal on the ground that the plaintiff, having been permitted to draw more than $30 a week in the past, had agreed that the regular weekly payments should not be resumed until the excess had been extinguished. The fact of the excess was not questioned, but the plaintiff denied this subsequent agreement, and claimed that, under the conditions of the original contract, he was entitled to draw $30 weekly, irrespective of the total amount advanced to him. The issue between the parties was thus reduced to a simple one of fact. There is evidence sufficient to support the conclusion that the new agreement was made; and, as it is very clear that no injustice has been done in the disposition of the case, the judgment should not be disturbed. Judgment affirmed, with costs to the respondents. All concur.  