
    Heinrich Samuels, Louis Samuels, Fred Samuels and Albert Samuels, Respondents, v. Henry Bloom, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1915.)
    Contracts — provisions of contract of employment — when employer in absence of agreement express or implied cannot recover excess of advances over commissions earned.
    Where a contract of employment provides for advances to the employee, which advances are to be charged to and deducted from the commissions agreed to be paid as the same may accrue, the employer cannot, in the absence of an agreement either express or implied to repay any excess of advances over commissions earned, recover from the employee such excess.
    Appeal by defendant from a judgment of the City Court of the city of New York, entered on verdict directed in favor of. plaintiffs and dismissing defendant’s counterclaim; also from two orders, one denying defendant’s motion for a new trial, the other denying motion to amend judgment by striking out the words “ on the merits ” after the provision for the dismissal of the counterclaim.
    Arthur Hutter, for appellant.
    'Otto A. Samuels (Ralph H. Blum, of counsel), for respondents.
   Guy, J.

The complaint alleges the execution of a contract by the parties under which the plaintiffs hired the defendant as their traveling salesman; that his commissions under the agreement amount to $1,450.47; that during the term of the contract the plaintiffs loaned and advanced to the defendant divers sums of money and sold and delivered to him certain goods, wares and merchandise, said loans and the agreed prices on said sales aggregating $2,440.51, which sum the defendant promised to repay to the plaintiffs; and they demanded judgment for $990.04, being the excess of the alleged loans and sales over the commissions.

On the trial the plaintiffs gave no evidence of the alleged sales, nor of any express promise by the defendant to repay the alleged loans. They claim to have proved a cause of action against the defendant by simply putting the contract in evidence and show= ing how much money he drew during the contract period, and deducting from that sum the commission to which he was entitled under the agreement, the balance being the amount for which the court directed a verdict in their favor.

The agreement provides for the payment to the salesman of seven and one-half per cent on the net amount of commissions received on sales in his territory, also for a commission of two per cent on contract jobs, and then follow the clauses: “ The parties of the first part agree to loan and advance to the party of the second part, $75.00 per week, which amounts shall be charged against and deducted from his commissions. The parties of the-first part need not make any further advances when the account of the party of the second part has been overdrawn.”

The respondents contend that the use of the word “loan” requires the construction that the moneys drawn by their employee were loaned to him, and the money thus drawn being in excess of the commissions there is an implied promise for their repayment. But the language of the agreement is not simply that the employers were to “loan” seventy-five dollars per week to the employee, but that they agreed to “loan and advance ” him that amount, which sums are to be charged against and deducted from his commissions; and the employers need not make “ any further advances ”— not “ any further loans ”—when the employee’s account has been “ overdrawn.” The intention of the parties is thus evident that moneys paid to defendant under the contract should be treated as advances against his commissions.

This construction requires the application of the doctrine that where a contract of employment provides for advances to the employee, which advances are to be charged to and deducted from the commissions agreed to be paid to him as the same may accrue, the employer cannot, in the absence of either an express or implied agreement or promise to repay any excess of advances over the commissions earned, recover from the employee such excess. North-Western Mutual Life Ins. Co. v. Mooney, 108 N. Y. 118; Wolfsheimer v. Frankel, 130 App. Div. 853; Auerbach, Inc., v. Ramer, 80 Misc. Rep. 645; Schlesinqer v. Burland, 42 id. 206.

Judgment reversed, with costs, and complaint dismissed, with costs; appeals from orders dismissed.

Bijur and Page, JJ., concur.

Judgment reversed, with costs; appeals from orders dismissed.  