
    Alfred W. Durante, Appellant, v. Albert Raimon and Others, Doing Business under the Firm Name and Style of “Raimon,” Respondents.
    First Department,
    January 21, 1910.
    Master and servant — contract of employment construed.— probf of damage. .
    A contract of employment providing that the employee’s earnings are to be (based on four-per cent, of his -sales, discounts and bad' debts deducted, and allowing a drawing account of sixty dollars per week commissions in excess, entitles the employee to. at least sixty dollars a week. .. ' :
    A complaint for the breach of such contract of employment should' not be dismissed for failure to prove damages, for proof of the amount the employer had agreed absolutelyto pay per week was prima facie proof of- damage.
    Appeal by the' plaintiff, Alfred ,W. Durante, from an order of the Appellate Term of- the Supreme Court, entered in the office of the clerk of the county of ¡New York-on the -5th day of March, 1909, affirming a judgment of the Oity Court óf the -city ¡of ¡New York in favor of the defendants, entered i-n the .office .of the ¡clerk of said court on the 11th day of November, 1908, and also affirming an order of the said City Court denying the plaintiff’s motion for a new trial, and also (as stated in the notice of appeal) from an order of said City Court entered on the 24th day of May, 1909, and the judgment entered thereon the 20th day of May, 1909.
    
      Louis B. BrodsTcy, for the appellant.
    
      Terence J. McManus, for the' respondents.
   Scott, J.:

The plaintiff appeals from a determination of the Appellate-Term affirming a judgment of the City Court which dismissed the complaint. The action is by a salesman against his employer for damages for a wrongful discharge. Plaintiff was employed under a written contract for a term, of eighteen months from May 1,1907, to October 31, 1908. He was discharged in February, 1908. His complaint was dismissed because in the opinion of the trial court he had failed to prove any damages or any facts upon which a verdict for damages could be based. He did prove his contract of employment, which contained the following clause as to his compensation : “ Tour earnings to be based on four per cent (4%) on your net sales, discounts and bad debts deducted, allowing you a drawing of sixty dollars per week and commission in excess, if any, to be paid you at the expiration of the present agreement.” Plaintiff also gave evidence of his efforts to obtain other employment; what he obtained and how much he earned. It is clear that the dismissal of the complaint resulted from a misconception of the nature of the compensation agreed to be paid plaintiff. "Under his contract he was entitled to be paid sixty dollars per week in any event. His compensation might amount to more if his sales were large, but not to less, even if his sales did not come up to his employer’s expectation. The case is not to be distinguished in principle from Gifford v. Waters (67 N. Y. 80). The respondents indeed make but a halfhearted attempt to uphold the ruling below, insisting that upon plaintiff’s own evidence he showed justification for liis dischárge. We should hesitate to go so far as to hold this as a matter of law, for that is a matter which should ordinarily be left to the jury. In any event, however, the plaintiff/' his complaint having been dismissed, is entitled to the most favorable inferences .of which the evidence is capable. The sole ground upon which the complaint was dismissed was. that he had failed to-.make proof of damage. He showed damage prima facie by- showing the amount the defendants had absolutely agreed to pay him per week. ■ The dismissal was, therefore, erroneous. The determination of the Appellate, Term and the judgment of the City Court are, therefore, reversed and a new trial granted, with costs to the appellant 'in. this court and the courts below to abide the event.

Ingraham,. P.-J., Lahghlín, Clarke and Miller, JJ., concurred.

Determination and judgment reversed and new trial ordered, with costs to appellant in this, and' in the courts below to abide event.  