The complaint herein sets forth two causes of action; one to recover $1,000 for the stipulated drawing account for five weeks between August 1, 1931, and September 4, 1931; the other to recover $28,400 damages for wrongful discharge on September 1, 1931.
The defendant’s answer, in addition to a number of denials, consists of eight complete defenses, two partial defenses and four counterclaims.
The court at Special Term struck out paragraphs 16-19, 24-28, 34-42, inclusive. By striking out these paragraphs the court eliminated the third, fifth, sixth and seventh separate and corn-plate defenses and also the first and second counterclaims to both causes of action.
It is unnecessary to devote much time to the defenses for the reason that they are in effect a repetition of the denials of the allegations of the complaint. The facts set forth are clearly provable under such denials and in addition are provable under other defenses that have been set forth, and remain in the answer. Irrespective of the rule that under certain circumstances one may plead a matter in defense that is provable under a general denial, these defenses are so unnecessary they should be eliminated.
The two counterclaims alleged that the plaintiff had a contract under which he was to receive certain sums on a drawing account; that he did receive $7,700 on his drawing account; that he breached the contract and, therefore, should return the money. In one counterclaim the amount is stated as $7,700 and in the other counterclaim it is stated to be $7,000.
The question here for consideration is whether the counterclaims *355are properly pleaded. It is contended by the plaintiff, appellant, that the counterclaims should be stricken out; that they are not good in law. The defendant says that they have been properly pleaded and relies on Schwed v. Kennedy, Inc. (220 App. Div. 189), as authority for that proposition.
There are no allegations in the counterclaims to bring them within the rule that there must be an actual or implied promise to repay the commissions. The circumstances pleaded must be such as to show that there was an understanding or agreement that in case of a breach of the contract the commissions should be repaid. Facts have not been pleaded to show any such condition.
In North-Western Mutual Life Ins. Co. v. Mooney (108 N. Y. 118) the court held that such advances could not be recovered back as damages for breach of contract. The court said: “ In the first place there is no express agreement on the part of Mooney to pay back the money; there is no agreement that its advance shall create an indebtedness on his part; no word signifying that he is to be a borrower, nor that the plaintiff will lend to him any money.”
The sole fact that there has been a breach of contract does not give a right to recover advances that have been paid which are in the nature of minimum wages for work actually performed. Facts must be pleaded to show a right to the return of such payments made on a drawing account or as salary for work actually performed.
I am of the opinion that the counterclaims are bad and that the entire order should be affirmed.
Merrell, J., concurs.
Order so far as appealed from modified by denying motion to strike out the third and seventh defenses and the first and second counterclaims, and as so modified affirmed, with ten dollars costs- and disbursements to the appellant, with leave to defendant to serve an amended answer, within ten days from service of order, excluding the fifth and sixth defenses therefrom.