The dispute in this voluminous case is whether the plaintiff should be allowed commissions on certain sales made after the close of his employment by the defendants. Not a little of the evidence and much of the prolix argumentations arise from the verbiage used by the respective pleaders. For the plaintiff it was alleged that he, on or about January 1, 1906, made an agreement of employment “as selling salesman” for the period between January 1, 1906, and December 31, 1906; that he remained in that employment for that term and faithfully performed all his engagements. For the defendants this was denied, with four separate defenses and a partial defense besides. Each litigant strove to live up to what his attorney had had him verify. Each in term dropped the role made up for him by counsel in the law. At the latter end the plaintiff testified he practically continued under the arrangement for 1905; went right on, continuing under the original agreement (of 1904). There was no new agreement; no conversation with him as to continuing. This admission would have been a fatality, had due motion been made for dismissal when the plaintiff’s counsel rested his case. Pleading, as he did, a specific agreement of hiring, entered into January 1, 1906, for the period terminating December 31st of that year, he might not recover on a “hold-over” agreement effected by continuation in the employment with the consent of his employers after the expiration of the first year. Treffinger v. Groh’s Sons, 100 App. Div. 433, 91 N. Y. Supp. 837; Brightson v. Claflin Co., 180 N. Y. 76, 72 N. E. 920. This escaped pitfall of his own aside, it would be difficult to spell out from the whole story in the expensive volume of record he has presented enough to let him keep what he has been awarded.
He was a traveler, with one or more lines besides that of the defendants, whose samples he had from December, 1904, and received commissions on sales made by him directly to customers and upon their reorders or duplicates. The defendants repeatedly wanted him to pay his whole attention to selling their goods exclusively; but he never consented to that—to throw up everything else. This was pressed, however, in the autumn before the spring trade which began in November, and he s.ent back his samples—seemingly something like the surrender of the key by a tenant. He did claim, without much support in his testimony, commissions on goods sold before the 1st of January, 1907, “regardless of when they were shipped, and regardless of who made the sale, or any one else, if they were shipped to my customers.” He was helped out by his adversaries. Excepting that he repudiated this claim of once a customer always a customer, that, once obtained, a customer became the salesman’s appanage, with con*966.sequent commissions on sales by others with samples of goods never carried by the plaintiff, the head of the defendant house, dropping his pleaded defenses, separate and special, supplied a need by saying that when they parted he told the plaintiff that defendants would allow him commissions on duplicates; i. e., reorders. For this offer no legal consideration appears. It may have been advisable, for the sake of the retiring salesman’s good will in the turn of trade. At any rate the defendants vouched for it. So the learned referee, rejecting the claims of appanage, has allowed the plaintiff commissions upon all duplicate or reorders according to his views and credence of the evidence^ with the like regard for the formal allegations that was shown on the trial for them by the plaintiff and the defendants and their respective counsel, one of whom would now revamp the pleadings with the significance they lost by mutual acquiescence in the long proceeding.
The judgment should be affirmed, with costs.
Judgment affirmed, with costs.
GIEDERSEEEVE, P. J., concurs in result.