Opinion
June, 1901.
Levy Unger, for appellants.
E.A. Klein, for respondent.
The plaintiff's claim was for seventy-nine and thirteen-hundredths dollars, under an alleged agreement for five per cent. commissions upon a sale of merchandise under an alleged employment by the defendants. The plaintiff, if his testimony was believed in the court below, was entitled to a judgment for his whole claim. If the defendants' contention was credited, they were entitled to judgment. The learned justice awarded judgment for plaintiff in the sum of twenty-six dollars and seven cents. This award is in no way supported by the proofs. An arbitrary decision cannot be upheld on appeal because there is no evidence to support it, and is wholly without the principle of secundum allegata et probata.
Present: SCOTT, P.J., BEACH and FITZGERALD, JJ.
Judgment reversed and new trial ordered, with costs to abide event.