Hirsch v. Mendelson , 243 A.D. 705 ( 1935 )

Action by plaintiff, a former employee of the defendants, to recover commissions on merchandise sold by the defendants, after the termination of plaintiff’s employment, to customers obtained by the plaintiff during the term of his employment. Plaintiff previously sued in the City Court to recover for commissions earned during the period of his employment over and above the amount he had been paid. The judgment of the City Court was for the defendants. Plaintiff was an employee at will under an oral contract. The defendants moved, under rule 106, for judgment dismissing the complaint on the ground that it does not state facts sufficient to constitute a cause of action, and, under rule 107 of the Rules of Civil Practice, that there is an existing final judgment and decree of a court of competent jurisdiction, rendered oh the merits, determining the same cause of action between the parties, and on the further ground that the contract is unenforcible under the Statute of Frauds. The Special Term granted the defendants’ motion and judgment was rendered thereon. Order and judgment reversed on the law, with ten dollars costs and disbursements, and defendants’ motion to dismiss the complaint denied, with ten dollars costs, with leave to answer within ten days from the entry of the order herein. In our opinion, the plaintiff may maintain this action to recover on the alleged oral contract for commissions claimed to have been earned by him by reason of reorders subsequent to August 19, 1932, the date of the commencement of the prior action in the City Court. Plaintiff cannot recover, in the present action, commissions claimed to have been earned prior to the commencement of said prior action. The Statute of Frauds is not a bar to this action. Lazansky, P. J., Hagarty, Seudder, Tompkins and Davis, JJ., concur.