
    First Department,
    March, 1918.
    Guy L. Nelson, Respondent, v. M. Morgenthau, Jr., Co., Inc., Appellant.
    
      Master and servant — wrongful discharge — counterclaim for moneys due.
    
    Appeal from an order of the Appellate Term bearing date the 7th day of June, 1917, affirming a judgment of the Municipal Court.
   Scott, J.:

On the question whether or not the plaintiff’s discharge was

justified the trial court found, on conflicting evidence, in favor of the plaintiff. Although we might be disposed to find differently if the question was an original one here, we cannot say that the finding was so clearly against the evidence as to require «a reversal on that ground. Both the Municipal Court and the Appellate Term, however, appear to have overlooked the counterclaim. The contract between the parties provided that at the end of the term of employment an adjustment should be had and that plaintiff should pay any balance then due to defendant. That there was a balance so due is not disputed. On October 14, 1916, plaintiff himself stated in writing that the amount he then owed was $625.13, and there is no evidence that any commissions became due to him after that date which would serve to reduce that balance. He, therefore, owed that amount on January 1, 1917. He has been awarded $275 as damages for his discharge. The most he can claim is that this sum should be deducted from the amount admittedly owing to defendant, leaving due the sum to the latter $250.13 for which it is entitled to judgment. The determination of the Appellate Term and the judgment of the Municipal Court are, therefore, reversed and judgment directed in favor of the defendant upon its counterclaim for $250.13, with interest from January 1, 1917, and with costs in all courts. Clarke, P. J., Dowling, Page and Davis, JJ., concurred. Determination and judgment reversed and judgment ordered for defendant as stated in opinion, with costs in all courts.  