
    BRAFMAN v. KOHN et al.
    (Supreme Court, Appellate Term.
    June 30, 1908.)
    Principal and Agent—Actions for Commissions—Evidence—Sufficienot.
    In an action by an agent for commissions for making certain alleged sales, evidence examined, and held insufficient to show that the sales for which commissions were claimed were made by; plaintiff.
    Appeal from Municipal Court, Borough of Manhattan, Fourth District.
    Action by Aaron Brafman against Harry D. Kohn and another for commissions for selling goods. From a judgment for plaintiff, defendants appeal.
    Reversed, and new trial ordered.
    Argued before GILDERSEEEVE, P. J., and MacLEAN and SEA-BURY, JJ.
    Fleischman & Fox, for appellants.
    Jellenik & Stern, for respondent.
   PER CURIAM.

The plaintiff was employed by the defendants to sell goods for them upon commission. The trial justice awarded judgment for the plaintiff, allowing him to recover commissions on sales made to Parker, Fogarty & Co., of Pittsburg, Pa., and to Hermann & Hess, of Wichita, Kan.

The evidence does not justify a recovery by the plaintiff of commissions for sales made to these two customers of the defendant. Although the evidence shows that the plaintiff had dealings with Parker, Fogarty & Co., it does not show that the plaintiff sold the bill of goods to them upon which he now seeks to recover a commission. The plain* tiff was only entitled to commissions upon the goods which he sold. Upon the trial he was asked by his counsel whether he sold the goods to Parker, Fogarty & Co., and he answered: “I did not. They bought them in the office.” The evidence conclusively established that the goods bought by Parker, Fogarty & Co. were sold to them by one of the defendants, and not by the plaintiff.

The plaintiff failed, also, to prove his right to recover commissions for goods sold to Hermann & Hess, of Wichita, Kan. These sales were made outside of the territory assigned to the plaintiff. The plaintiff testified that his contract was so modified that he was to have credit for sales made, at Wichita, Kan., to Hermann & Hess; but there is no evidence in the case to show that the plaintiff sold the goods to Hermann & Hess for which he now seeks to recover a commission. The evidence of the plaintiff, in reference to his contract as to sales to Hermann & Hess, and also as to what sales he made, is so vague and indefinite as to be insufficient to sustain the recovery awarded him by the court below.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.  