
    Harry Thorp, Respondent, v. Emil Heyman, Appellant.
    (Supreme Court, Appellate Term,
    April, 1896.)
    Pleading — Amendment.
    It is.not error to refuse to allow an amendment if it is immaterial, unnecessary, or will- not accomplish the purpose for which, it is intended.
    Appeal by defendant from judgment of the Sixth Judicial District Court.
    H. J. Hindes, for appellant.
    Henry J. Goldsmith, for respondent.
   McAdam, J.

The action is by the plaintiff "on his own behalf- and as assignee of one Riser for commissions claimed to have been earned by them as canvassing agents while in the employ of the defendant.

The defendant is the owner of a- studio, in which photographs are taken and frames sold. His specialty is enlarging pictures, his plan being to employ agents to go through the country and solicit orders, agreeing that if persons will supply their photographs the defendant will enlarge them free of cost, provided, that when each picture is ready the customer buys a frame at an expense of at least $3.95.

The,- agreement "with the plaintiff and his assignor was that ■they should have seventy-five cents on all orders that were good, and 20 per cent, of seventy-five cents for those that were not good. It was,, therefore, expected .that many of the orders would not be profitable,- but they were nevertheless to be paid -for as-stated. ' - ,

The. plaintiff procured forty-eight orders,: and bis assignor forty-seven, making in all ninety-five. The defendant proved'that. 1 twenty-eight of - these orders were -bad; and there was reason to believe that some were what the witnesses described as. “ fake ” ' or fraudulent orders, but there was no satisfactory proof upon this subject. Figuring on the proper basis, there was due to- the 'plaintiff and his assignor' just about the' airióuñt- fbr -which the justice directed a recovery. Mr. Helséy, the manager of, the -defendant’s portrait "department, furnished, "the plaintiff and Ms assignor with slips which tend, to corroborate the- plaintiff’s evidence as to the balance due; and taken as a whole the judgment' is fully sustained by the evidence presented. . >

■ .Upon employing-the plaintiff and his assignor the defendant gave them each' $25. They claimed this-was a bonus tó secure their services.' - Such was no doubt the ■ fact, and the -justice evi- - dently so. found. The defendant ■ undertook to amend-his answer by setting up ■ a counterclaim, in' the -hope of recovering back or obtaining credit for the $50, and' the justice refused. to allow the amendment. Assuming, as we do, that the justice might properly have granted the application (Code, § 2944; Consol. Act of 1882, § 13.47), his refusal to do so-was not error.

An amendment may be- refused' if it be immaterial, unnecessary .-or. will not accomplish-the purpose for which it jg intended. 1 Ency. of PI. & Pr. 523.

The case was .decided upon conflicting evidence.. The justice having seen the witnesses and. observed their manner of testifying was best qualified to determine the questions of- credibility and weight, of evidence; -and the judgment rendered by him must be affirmed, with costs.

Daly; P. Ji, ánd Bischoit, J., concur.

Judgment affirmed, with costs.  