
    Hulbert T. E. Beardsley, Respondent and Appellant, v. American Bonding Company of Baltimore, Appellant and Respondent.
    
      Principal and agent — contract — commissions — action to recover commissions alleged to have been earned as agents of defendant.
    
    
      Beardsley v. American Bonding Co. of Baltimore, 200 App. Div. 452, modified.
    (Argued January 15, 1923;
    decided February 27, 1923.)
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 4, 1922, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict and upon the report of a referee. The action was brought by the plaintiff on behalf of himself and the assignee of his former partner to recover certain commissions alleged to be due upon business written by them as agents of the defendant during a period of four years, the points in controversy being the claim on behalf of the plaintiff that the contract provided for payment of the commission on all outstanding and unpaid premiums at the time of the termination of the agency, and also the payment of a commission upon all premiums paid in renewal of bonds written during the continuance of the agency contract. By stipulation of the' parties, the questions of law and fact arising under the first two claims were sent to a jury for trial, with the agreement that if the jury found the contract to be as claimed by the plaintiff, there should be a referee appointed to take and state the account.
    
      John Ewen for plaintiff, respondent and appellant.
    
      Charles Capron Marsh, George W. Field and Eli J. Blair for defendant, appellant and respondent.
   Per Curiam.

We think the defendant has been improperly credited with payments made before September 7, 1909, to sub-brokers employed by plaintiff’s firm, and also for the firm’s office expenses.

The plaintiff’s recovery should, therefore, be increased by adding thereto the sum of $1,120.14.

As so modified, the judgment should be affirmed, without costs to either party as against the other.

Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur.

Judgment accordingly.  