
    Jacob Lutz, Resp’t, v. August Keiser et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Services—Commissions—Weight op evidence.
    In an action for commissions for selling defendants’ goods plaintiff testified that he first offered to work for a salary but that defendants preferred to have him work on commission. Defendant K. and his father testified that p’aintiff did not work on commission but for a salary,which had been paid. Another witness testified that he heard plaintiff offer to work for a salary, but that he did not hear all the conversation. Held, that plaintiff’s evidence was not negatived by this latter testimony; that a clear question of fact for the jury was presented and their verdict must be held final.
    Appeal by the defendants from a judgment upon a verdict of a jury in Erie county, entered on the 14th day of October, 1891, and from an order denying a motion for a new trial upon the minutes.
    
      Edward L. Jellinick, for app’lts; Eugene V. Chamberlain, for resp’t.
   Lewis, J.

The plaintiff’s testimony tended to show that he sold tobacco for the defendants for an agreed commission; that the defendants were to pay his travelling expenses; that there was a balance due him from the defendants on the 15th day of December, 1891, on account of said sales of $250.54, with interest from said date.

The defendant August Keiser and his father, Leopold Reiser, testified that the plaintiff did not work for the defendants upon commission, but that he worked upon an agreed salary of ten dollars a week and his travelling expenses.

If the plaintiff was only entitled to ten dollars a week, the defendants had fully paid him for his labor.

The testimony of the defendants’ witness, John W. Stykoff* that he heard the plaintiff offer to work for the defendants for ten dollars a week, does not negative the plaintiff's evidence, for he testified that he at first offered to work for that, but that the defendants did not accept the offer, but said they preferred to have him work on commission.

Stykoff testified that he did not hear all the conversation.

The evidence presented a clear question of fact to the jury; they credited the plaintiff, and their verdict must be held to be final.

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.  