
    Isaac Lobsitz, Respondent, v. Leffler, Thiele & Company, Appellant.
    Fourth Department,
    July 12, 1910.
    Master and servant — contract of employment construed.
    Under a contract of employment entitling a sales agent to receive §125 a month' and certain commissions on goods sold and further providing that his employer is to send a check for §50 each week to the plaintiff's wife and to pay a certain sum per day for traveling expenses, the agent is entitled to at least §50 a week on account of his salary and commissions and is not limited to §125 per month plus such commissions as he may earn.
    Appeal by the defendant, Leffler, Thiele & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 20th day of October, 1909, upon the report of a leferee to hear, try and determine.
    
      C. A. Hitohcook, for the appellant.
    
      William Rubin, for the respondent.
   Williams, J.:

The judgment should be affirmed, with costs.

The action was brought to recover for services under a written contract, whereby the plaintiff was to act as the sales agent of the defendant in New York and New England States. The provision as .to plaintiff’s compensation was as follows: “ For your services you are to receive One hundred and twenty-five dollars ($125) per month and two and one-half per cent (2$%) commission on all accepted shipments up 'to Fifty thousand dollars ($50,000); above Fifty thousand dollars ($50,000) your commission is to 'be Five per cent (5%). Against the above we are to send a check for Fifty dollars ($50) each week to Mrs. I. Lobsitz, 1616 South State St., Syracuse, N. Y. * * * We are also to pay you. traveling expenses at the rate of about Six dollars ($6) pér day while you are on the road.” Under this contract and the renewal thereof the plaintiff continued to work from December 15;-19.05, to September 7, 1907. The defendant sent the check for fifty dollars every week until June 1, 1907, and then gave the notice of three months as required by the contract to terminate it. Concededly the plaintiff’s one hundred and twenty-five dollars per month and commissions did not amount to fifty dollars per week. Plaintiff seeks to recover the fifty dollars per week from June 1 to September 7, 1907, while the defendant seeks to recover back the amount it claims it has overpaid on the contract. The referee decided plaintiff was correct in his claim and awarded jndgmént accordingly. Ilis construction of the contract was that it in effect provided the defendant was to advance the fifty dollars per week and traveling expenses, without any provision for repayment of any part of it; tliat the word against meant towards, and the fifty dollars was to be paid for the purpose of meeting, offsetting and paying the salary and commissions already earned and without any intention that any part of it should be paid back or applied to future eaniings. In other words, the plaintiff was to be paid at least fifty dollars per week for his salary and commissions. I had some difficulty in agreeing to these conclusions, but after examining the cases referred to by the referee and by counsel, I think the referee was right.

In North- Western Mut. Life Ins. Co. v. Mooney (108 N. Y. 119) where the agreement provided for the payment for services by commissions on the business done by the agent, and that for the first six months the company would advance to him $200 per month, which amount was to be expended in advancing the interests of the company and was to remain a first lien upon the business and renewal interest secured to the agent under his contract, until repaid with interest at seven per cent, the court held that no recovery back c any part of the $200 could be had from the agent; that it was chargeable against his commissions but not against him personally so as to render the sureties upon his bond liable therefor.

In Hollender v. Friedenberg (60 Misc. Rep. 566) the agent was to be paid by commissions and had a drawing account of sixty dollars per week, to be deducted from the commissions earned, and it was held that there was no obligation to pay back any part of the sixty dollars, except out of the commissions. The agent was not personally liable if the commissions fell short of the moneys advanced.

In Wolfsheimer v. Frankel (130 App. Div. 853) the agent was to be paid by commissions and $350 per month was advanced besides his traveling expenses, all of which was to be charged to his commission account, and it ivas held that there was no personal liability by the agent to repay the moneys so advanced if the commissions should not equal the amounts so paid to him.

In Durante v. Raimon (136 App. Div. 448) the agent was to be paid by commissions and was allowed to draw sixty dollars per week, the balance of commissions over and above that amount, if any, to be paid at the end of the term, and it was held there was a right to the sixty dollars weekly payment and no obligation to pay back any part of it.

These cases are not entirely like the one we are here considering, but the principle involved is practically the same in all, the right to receive the weekly or monthly payment during the term and no personal obligation to pay back any part of it. That principle is applicable here, and entitled the plaintiff to recover the amount unpaid of the fifty dollars per week until the contract ended, which was September 6, 1907, and the defendant could not set off any deficiency in commissions to equal the amount so paid over.

All concurred.'

Judgment affirmed, with costs.  