
    Isidore Buchsbaum, Appellant, v. Nussbacker, Friedman & Goodman, Inc., Respondent.
    Supreme Court, Appellate Term, Second Department,
    January 15, 1943.
    
      
      Max Zucker for appellant.
    
      Joseph H. Schindler for respondent.
   Per Curiam.

Judgment unanimously reversed upon the law, and new trial granted with thirty dollars costs to plaintiff to abide the event.

In the absence of any agreement by plaintiff, express or implied, to pay back any excess of payments on the drawing account over commissions earned, defendant is not entitled to recover such excess from the plaintiff. (Pease Piano Co. v. Taylor, 197 App. Div. 468, affd., 232 N. Y. 504; Carter v. Bradlee, 245 App. Div. 49, 52.) It-was therefore error to grant judgment dismissing* the complaint on the merits and in favor of defendant on its counterclaim. No opinion.

Present — Smith, McCooey and Steinbrink, JJ.  