
    William Sam and Jacob Levine, Respondents, v. The Mohawk Clothing Company, Inc., Appellant.
    First Department,
    March 20, 1914.
    Practice — motion to strike out answer as frivolous denied — action for breach of contract of employment — denial of execution of contract.
    Where, in an action for the breach of a written contract of employment, the defendant denies that it ever executed the contract with the plaintiffs, and alleges that, if its name was signed to any paper purporting to be such a contract it was without authority and was not the act of the defendant, a direct issue is presented and the answer should not be stricken out as frivolous.
    Appeal by the defendant, Mohawk Clothing Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of January, 1914, striking out defendant’s answer as frivolous.
    
      William Dewey Loucks of counsel [Loucks & Alexander, attorneys], for the appellant.
    
      Arthur Rosenberg, for the respondents.
   Per Curiam:

The complaint alleges that the plaintiffs are copartners, and that the defendant is a domestic corporation. The cause of action set forth is a breach of a written contract of employment by which defendant employed the plaintiffs for three years as selling agents, with privilege of renewal of two years, agreeing to pay five per cent commission on all orders, to advance $200 per month for a drawing account, and to pay office expenses not exceeding $600 per year.

For their first cause of action plaintiffs allege that they entered upon the performance of said contract on May 1, 1913, and were discharged August 7, 1913, and that no part of their office expenses were paid except $30, and that by reason of the premises they have been damaged in the sum of $25,150.

For a second cause of- action, that under and by the terms of said agreement the plaintiffs became entitled to receive the sum of $200 in advance for. the month of July and the further sum of $200 for the month of August, of which no part has been paid. Wherefore they demand judgment for $25,500. The alleged agreement is attached to the complaint and is signed, The Mohawlc Clothing Co., By James F. Hooker, Pres., William Sam, Jacob Levine.”

The answer to the first cause of action admits the allegation set forth in the 1st paragraph of the complaint, that is, that the defendant is a corporation. Second. This answering defendant has no knowledge or information sufficient to form a belief as to any of the other allegations in said amended complaint, and, therefore, denies the same.

As to the second cause of action- it admits the allegation of the 1st paragraph of the complaint. Second. This answering defendant has no knowledge or information sufficient to form a belief as to any of the other allegations in said amended complaint contained, and, therefore, denies the same, except this answering defendant admits that no part of any alleged claim has ever been paid.

For a further and separate defense to each cause of action set forth in the amended complaint, this answering defendant denies that it ever executed any agreement of any kind, name or nature with the plaintiffs in this action, and if the name of this answering defendant was signed by anybody to any paper purporting to be such agreement, it was signed without authority of the board of directors of said defendant, and was not the act of this answering defendant.

We think this answer should not have been stricken out as frivolous. The defendant flatly denies that it ever executed any agreement with the plaintiffs, and if its name was signed to any paper purporting to be such agreement it was signed without authority and was not the act of the defendant. This raises a direct issue and puts the plaintiffs to their proof.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present—Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  