
    William Cohen, Appellant, v. Valvona Marchiony Co., Inc., Respondent.
   Judgment reversed on the law and the facts, and a new trial granted before the same referee, with costs to appellant to abide the event. The record shows that a contract of employment of the plaintiff by, the defendant was made, and that plaintiff continued in the employment of defendant until some time prior to September 30, 1917; that plaintiff was employed as a traveling salesman for the sale of defendant’s products in certain territory designated by defendant; that the compensation to be paid by defendant to plaintiff was a sum equivalent to seven per centum of the selling prices on all orders obtained by plaintiff for defendant, and actually shipped by it; and that defendant agreed to pay plaintiff the sum of thirty dollars a week as an advance or drawing account, such sums so advanced to plaintiff to be deducted from the amount payable to him by defendant as commissions. The dismissal of the complaint because plaintiff at one place in the record said that he relied on the Nachman letter as the sole evidence of the contract, was error. A statement should be made by the referee, from the books of defendant in evidence, and from the testimony of witnesses, showing what sum, if any, is due to the plaintiff. Plaintiff’s Exhibit 4 purports to be a statement furnished by defendant for plaintiff’s account with defendant. If these figures are conceded to be correct, it should be an easy matter to compute the amount. They appear in the record without any additions or any computation whatsoever. Kelly, P. J., Jaycox, Kelby, Young and Kapper, JJ., concur.  