
    Francis H. Greaney, Respondent, v. The Troy Wagon Works Company, Appellant.
    
      Greaney v. Troy Wagon Works Co., 181 App Div. 945, affirmed.
    (Argued March 8, 1920;
    decided April 13, 1920.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 7, 1918, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The plaintiff sued the defendant, an Ohio corporation, to recover commissions alleged to be due him as compensation for his services under an agreement by which he was employed as the manager of the defendant’s business in New York city at a salary of $2,500 per year, and as further compensation the sum of five per cent on the gross business of defendant’s New York office during plaintiff’s employment as manager, after deducting therefrom the volume of business necessary to take care of the fixed expense of the New York office, which volume “ it was then and there agreed between the parties should be ten times the ¿mount of the fixed expense of defendant’s New York office.” The contract was terminated on September 9, 1915, and the plaintiff alleged upon information and belief that the gross business of defendant’s New York office for that year was the sum of $285,000; that during said period the fixed expense of the New York office was $7,500; that the volume of business necessrry to take care of said fixed expense was $75,000. Plaintiff claimed that there was due to him five per cent upon $210,000, being the amount of the gross receipts of the business less $75,000 alleged to be necessary to take care of the fixed expense, and demanded judgment for $10,500. The answer was a general denial with an affirmative defense of payment.
    
      George Edwin Joseph and Henry C. Quinby for appellant.
    
      George Zabriskie and William E. Sims for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Collin, Cardozo, Pound, Crane and Andrews, JJ.  