
    Pease Piano Company, Appellant, v. George N. Taylor, Respondent.
    
      Practice — motion by defendant for judgment on pleadings properly made at Special Term after appointment of referee but before notice of hearing — master and servant — when employer may not recover from employee the excess of a drawing account over commissions earned.
    
    
      Pease Piano Co. v. Taylor, 197 App. Div. 468, affirmed.
    (Argued October 5, 1921;
    decided October 25, 1921.)
    Appeal from a judgment, entered July 8, 1921, upon an order of the Appellate Division of the Supreme Court in the first judicial department which reversed an order of Special Term denying a motion by defendant for judgment on the pleadings and granted said motion. The motion was denied at Special Term on the ground that it should have been made before the- referee who had been appointed to hear and determine the issue. The Appellate Division held that no notice of a hearing before the referee having been served the motion was properly made at Special Term. The action was brought to recover from a salesman the difference between the amount paid him on a drawing account and the amount of commissions earned and credited to him on such account. The complaint does not allege an agreement to repay any excess of advances over commissions earned. The Appellate Division held that without an agreement express or implied to repay the excess of a drawing account over and above commissions earned, the employer cannot recover such excess from the employee.
    
      Bruce Ellison and William B. Ellison for appellant.
    
      John Ewen for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  