Berkowitz v. Mitenthal

In this action to recover for wages.and commissions, the plaintiff, by summons and his unverified bill of items, claimed a sum certain as his due, and for the full amount judgment was rendered in his favor. He testified that by his contract with the defendants he was to receive commissions only on such goods as went out in response to his orders, and that he could not tell whether all the items included in his bill had been shipped or not. Furthermore, the amount of his sales, the basis of commissions’ computation, was, as appears by his cross-examination, very materially less than the sum claimed in his bill, and for which he recovered. The judgment should be reversed.

Freedman, P. J., concurs; Leventritt, J., concurs in result.

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