The plaintiff appeals from a determination of the Appellate-Term affirming a judgment of the City Court which dismissed the complaint. The action is by a salesman against his employer for damages for a wrongful discharge. Plaintiff was employed under a written contract for a term, of eighteen months from May 1,1907, to October 31, 1908. He was discharged in February, 1908. His complaint was dismissed because in the opinion of the trial court he had failed to prove any damages or any facts upon which a verdict for damages could be based. He did prove his contract of employment, which contained the following clause as to his compensation : “ Tour earnings to be based on four per cent (4%) on your net sales, discounts and bad debts deducted, allowing you a drawing of sixty dollars per week and commission in excess, if any, to be paid you at the expiration of the present agreement.” Plaintiff also gave evidence of his efforts to obtain other employment; what he obtained and how much he earned. It is clear that the dismissal of the complaint resulted from a misconception of the nature of the compensation agreed to be paid plaintiff. "Under his contract he was entitled to be paid sixty dollars per week in any event. His compensation might amount to more if his sales were large, but not to less, even if his sales did not come up to his employer’s expectation. The case is not to be distinguished in principle from Gifford v. Waters (67 N. Y. 80). The respondents indeed make but a halfhearted attempt to uphold the ruling below, insisting that upon plaintiff’s own evidence he showed justification for liis dischárge. We should hesitate to go so far as to hold this as a matter of law, for that is a matter which should ordinarily be left to the jury. In *450any event, however, the plaintiff/' his complaint having been dismissed, is entitled to the most favorable inferences .of which the evidence is capable. The sole ground upon which the complaint was dismissed was. that he had failed to-.make proof of damage. He showed damage prima facie by- showing the amount the defendants had absolutely agreed to pay him per week. ■ The dismissal was, therefore, erroneous. The determination of the Appellate, Term and the judgment of the City Court are, therefore, reversed and a new trial granted, with costs to the appellant 'in. this court and the courts below to abide the event.
Ingraham,. P.-J., Lahghlín, Clarke and Miller, JJ., concurred.
Determination and judgment reversed and new trial ordered, with costs to appellant in this, and' in the courts below to abide event.