
    (38 Misc. Rep. 786.)
    SOULER v. McDOWELL GARMENT MACH. CO.
    (Supreme Court, Appellate Term.
    June, 1902.)
    1. Contract op Employment — Advancements.
    . Under a contract of employment by which the employer agrees to make a weekly allowance of $8.50 for expenses, and to pay the employs $10 each week, to be advanced on account of commissions due and to grow due to the employé, the employe, having- earned no commissions, cannot, after termination of the employment, recover the $10 per week for the time it continued; this being only on account of commissions.
    Appeal from municipal court, borough of Manhattan, Eleventh district.
    Action by Ella R. Souler against the McDowell Garment Machine Company. From a judgment for plaintiff, defendant appeals.
    Reversed.
    Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.
    Jones, Dodd & Steinbrinck, for appellant.
    Rosalie Loew, for respondent.
   MacLEAN, J.

Instead of a plain and concise statement of the facts, as required (Code Civ. Proc. § 481), the pleader has put a misrepresentation into her complaint, boldly alleging that, besides an allowance of $8.50 weekly on account of expenses and disbursements, the defendant agreed “to pay to the plaintiff the sum of $10 each week.” She has also annexed to and made a part of her complaint an inaccurate and misleading copy of the agreement. In the agreement itself, introduced by the pleader and plaintiff upon the trial, the provision runs, “will also pay to the party of the second part ten dollars each week, to be advanced on account of commissions due and to grow due to the party of the second part”, i. e., unless the parties inserted in their writing words to be disregarded as meaningless, the payments were to be made provisionally in anticipation of adjustment upon accounting, whereat they might be set off, in whole or in part, or exceeded altogether, by earnings, if any, of commissions. The plaintiff failed to earn any commissions. She received advances the first two weeks. Herein she claims for all the weeks remaining to the date of the termination of the agreement, and she has recovered judgment for the full amount. This is erroneous. Whether she might have recovered for the advances from week to week, pending the existence of the agreement, and have been compelled to refund upon the termination of the relations, is not material. The relation has terminated, leaving the plaintiff with two weeks’ advances to which she is not entitled. The judgment should be reversed.

Judgment reversed and new trial ordered, with costs to appellant to abide event. All concur. •  