
    Warren C. Browne, Respondent, v. Empire Type Setting Machine Company, Appellant.
    
      ‘Counterclaim,,, in an action by an employee for the recovery of commissions on sales and for a wrongful discharge — when it is insufficient as a denial of a wrongful discharge —facts justifying the discharge must be stated — construction 'of a doubtful pleading.
    
    The complaint in an action alleged that the plaintiff was employed by the defendant as a sales agent under an agreement which was annexed to the complaint, by which the defendant was to pay the plaintiff a commission on all-sales made by him and advance him a weekly stipend ; that an accounting was to he had ■every six months, when the difference between the commissions earned and the advances was to he paid over to the party entitled thereto;. that the defendant wrongfully discharged- the plaintiff from its employ; that certain machines had been sold through the plaintiff’s instrumentality, and that the commissions earned by the plaintiff amounted to $815 more than the advances received by him, for which amount, together with other sums, he demanded judgment.
    The answer denied that the defendant had wrongfully discharged the plaintiff, . and, as a counterclaim to the plaintiff’s cause of action, alleged that up to September 18, 1897, it had advanced the plaintiff $775, and that “ on or about said day the relations Of the parties under the said contract terminated; that the plaintiff had made no sales of the defendant’s machines and was entitled to no commissions, and that by reason of the matters and things above set forth he was indebted to the defendant on the .said day in the sum of seven hundred and seventy-five dollars, no part of which has been paid, although payment thereof has been duly demanded.”
    
      Held, .that the counterclaim did not state facts sufficient to constitute a cause of action;
    That the denial of the wrongful discharge was not,equivalent in legal effect to ,a good allegation of justifiable dismissal, as such a plea, whether negative or affirmative in form, must allege the facts relied upon as justifying the dismissal,
    In matters of substance a. pleading of doubtful meaning must he construed most strongly against the pleader.
    ■ Appeal by the defendant, the- Empire Type Setting Machine Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk. of the county of Kings on the oth day of May, 1899, upon the decision of th'e court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to the counterclaim contained in the amended answer.
    
      
      Hammond Odell, for the appellant.
    
      Joseph Center Wight, for the respondent.
   Willard Bartlett, J.:

The complaint sets out an agreement between the parties for the employment of the plaintiff by the defendant as a salesman to make sales of its machines for a period of one year from December 31, 1896, unless the contract should be sooner terminated as therein provided. By this agreement the defendant undertook to pay the plaintiff as his compensation a- commission of ten per cent on all machines sold to customers obtained by him or his agents. The defendant also agreed to advance twenty-five dollars.a week to the plaintiff—such advance to be considered a part of his commissions, and not as an independent salary. It was further stipulated that the accounts of the parties should be settled once in six months, when the sum of the weekly payments should be deducted from the sum of the commissions earned by the plaintiff, and the balance, if any, should be paid to him. If the sum of the weekly advances should be found to exceed the sum of his commissions, then the defendant was to have the option either to require the difference to be repaid to it by the plaintiff or to carry the deficit over to the next half year, or to consider the contract at an end.

The complaint alleges that the plaintiff has performed all the conditions of the agreement on his part except in those respects in which performance was waived or prevented by the defendant; that in the year 1897 eight typesetting machines of the defendant' were sold through the instrumentality of the plaintiff to customers obtained by him; that in September, 1897, the defendant refused any longer to make advances to the plaintiff on account-of his commissions ; that on or about October 1, 1897, the defendant wrongfully discharged the plaintiff from its employment, and that the commissions earned by the plaintiff amount to $815 more than he has received from the defendant. Some other breaches of the agreement are alleged in the complaint, increasing the amount for which the plaintiff demands judgment.

The amended answer denies all the material allegations of the complaint except those relating to the incorporation of the defendant and the execution of the contract of employment. Among the paragraphs of the complaint expressly denied is that which contains the allegation that the defendant wrongfully discharged the plaintiff from its employment.

The second part of the answer contains the counterclaim, the sufficiency of which is questioned upon the present appeal. After repeating the denials already mentioned, it refers, to the agreement annexed to the complaint, restates some - of the provisions of that agreement, alleges that pursuant to the terms thereof the defendant advanced to the plaintiff $25 a week up to September 16, 1897 — the aggregate of such advances amounting to $775 — and proceeds as follows: This defendant alleges that on or about said day the relations of the parties under the said contract terminated; that the plaintiff had made no sales of the defendant’s machines and was entitled to no commissions, and that by reason of the ■ matters and things above set forth he was indebted to the defendant on the said day in the sum of seven hundred and seventy-five dollars, no part of which has been paid,. although payment thereof has been duly demanded.”

I agree with the court at Special Term in the view that this counterclaim does not state facts sufficient to constitute a cause of action.

The appeal book shows that there was a counterclaim in the original answer, to which the plaintiff successfully interposed a demurrer on the same ground. In that counterclaim, however, the defendant did not repeat the denials set forth in the previous part of its answer as it does in the. present counterclaim. Mr. Justice Dickey held ■ that the counterclaim could not be helped out by independent denials in the answer, to which no reference was made in the counterclaim itself. For the purposes of that demurrer, therefore, there -was nó denial of the wrongful discharge of the plaintiff alleged in the complaint ; hence he deemed the counterclaim in its original form insufficient. The question now before us is whether it has been made good in its amended form, now that it includes a denial of the alleged wrongful discharge.

■It is essential to the sufficiency of a counterclaim that it should set out facts sufficient to' constitute a cause of action in favor of the defendant and against the plaintiff, or a person whom he represents. (Code Civ. Proc. § 501.) To ascertain whether matter set up as a counterclaim complies with this requirement we must, therefore,, consider that portion of the answer standing by itself and inquire whether or not it would be good as a complaint in a separate action 'by the defendant against the plaintiff or a person represented by the plaintiff. Viewed in this manner, I am at a loss to perceive how the mere denial in this counterclaim of the plaintiff’s allegation, that, the defendant wrongfully discharged him, can be regarded as the-statement of a fact going to make up a cause of action in behalf of' the defendant against the plaintiff. Its effect'is rather to avoid an admission which might be fatal to an otherwise valid counterclaim. The incorporation of that denial in the counterclaim adds no morete the counterclaim than would be accomplished by the insertion therein of an express averment to the effect that the defendant did not wrongfully discharge the plaintiff from its employment. Considering this averment incorporated, we should then have a counterclaim in substance as follows: The parties entered into the agreement, a copy of which is annexed to the complaint; under that agreement the defendant advanced to the plaintiff $25 a week up to September 16, 1897, making $775 in all; that the relations of the parties under the contract then terminated; that the defendant did not wrongfully discharge the plaintiff; that the plaintiff had made no sales of the defendant’s machines, and that by reason of the foregoing matters he was indebted to the defendant on September 16, 1897, in the sum of $775, no part of which has been paid,, although payment thereof has been demanded.

In thus attempting to state the substance of the counterclaim I have omitted the averment that the plaintiff was entitled to no commissions, as that is purely a conclusion of law.

A denial by a master that he has wrongfully discharged his servant, or an allegation by a master that he has not wrongfully discharged his servant, is not equivalent in legal effect to a good allegation of justifiable dismissal. Such a plea, whether negative or affirmative in form, must allege the facts which are relied upon as-justifying the act of the master in discharging the servant. “ The law will not assume that a servant has been derelict in duty from the fact that his employer discharged him, but upon proof under proper allegations that he was discharged while engaged in the performance of the contract- and before his'.term-.of service had expired, the burden is cast upon the., employer óf pr'óving,. and lienee of alleging, facts in justification-;-of the dismissal,” (Linton v. The Unexcelled Fireworks, Co., 124 N.Y. 533.) ' In the present case it is to be observed that the fact of the .plaintiff’s dismissal from the employment of the defendant as alleged in the complaint is not' denied-—'it is only.the wrongful dismissal.

If then we take as true all the averments'of 'the counterclaim, do "they suffice to show that the defendant is; entitled -td'-recover- from the.plaintiff the- $775 paid-to him on account of-his commissions?' ,1 think not. The.statement that the relations of 'the parties under -the contract terminated" oil Sejatember-lfij 1897, -does not indicate iii what manner they came to an end. If it means that the contract was rescinded, then the defendant had no claim to the repayment of-its advances unless such;'repayment was provided for expressly-or -by implication in the agreement of rescission. (McCreery v. Day, 119 N. Y. 1.) The learned counsel for the defendant interprets.'the -averment, that the relations of the parties, under the contract terminated, to. mean- that" the defendant' relinquished its claim to 'the plaintiff’s services for the balance of the year and that the plaintiff .gave up. his - claim to compensation for the same period; but the trouble with his pleading is that it does not say anything of the bind. In matters of substance it is still the rule that a pleading of •doubtful, meaning must be construed most strongly against the pleader. (Clark v. Dillon, 97 N. Y. 370.) It seems to me that -the application of this rule is fatal to the counterclaim; nor js there -any harshness in thus applying it. If the defendant lias a good -cause of action against the plaintiff,, arising, out of the facts sug.gested in the brief of counsel but not yet embodied in the answer, ■there cannot be any serious difficulty in placing it before the court fin proper form. ' - ‘

The interlocutory, judgment should be affirmed, with costs, andwi-th leave to amend .upon the usual terms.

All concurred.

• Interlocutory judgment sustaining demurrer to' counterclaim •affirmed,, with costs, with leave to defendant to amend the •counterclaim upon payment of the Costs of the demurrer and of 'this appeal.  