Memorandum Plaintiff by verified complaint sued defendant on an oral agreement of employment “ as foreman at a monthly salary of $450, plus 15% of his entire 1944 salary to be paid at the end of the calendar year 1944.” This was the theory of the case as submitted to the jury in a charge as to which there were no exceptions or requests. The verdict was for the plaintiff. We note the decision in Noyes v. Irving Trust Co. (250 App. Div. 274, 275, affd. 275 N. Y. 520) and of course give full recognition thereto. The agreement there was for a compensation of $400 a month and ‘ ‘ in addition * * * he would share in a bonus plan similar to that maintained by the Grant Stores, on the basis of twelve find one-half per cent of the operating earnings of the company, to be divided among executives, department heads and buyers, in proportion to their salaries.” The distinction seems clear. There the question involved was sharing in a management bonus plan which obviously was subject to and.wholly under the control of the directors. Here the plaintiff sued for an. agreed personal annual compensation of $450 per month, plus 15% to.be paid at the end of the year absolutely and without any contingency. This merely was the provision - for a method of payment of a fixed compensation for work to be done which was fully performed.
The judgment should be affirmed, with $25 costs.