Opinion
June 15, 1945.
Appeal from Supreme Court, Bronx County, BENVENGA, J.
James Murphy of counsel ( Levy, Murphy Stolz, attorneys), for plaintiff-appellant and respondent.
Samuel J. Joseph of counsel ( Aaron Reiss with him on the brief; Samuel M. Reiss, attorney), for defendant-respondent and appellant.
The defendant was employed by plaintiff under a written contract here in suit, paragraph "13" of which provides as follows: "Upon the discontinuance of my employment, any sales that I may thereafter make with a customer from your office or whom I had met while in your employment, or upon the sale of a building which had been listed in your office, I shall share the commissions two thirds to you and one third to me."
Under the foregoing provisions the plaintiff was entitled to receive a share of the commissions on sales made by defendant, after discontinuance of his employment of properties listed with the plaintiff. The sale of 1033-5-7 Elder Avenue to Benjamin Stebbins was such a sale. The Elder Avenue property had been listed with the plaintiff prior to defendant's employment. While in plaintiff's employ this listing along with others was turned over to the defendant and they were not returned until more than four months after defendant's discharge. Upon the record presented it may not be said that the information thus obtained was not utilized by the defendant in effecting the Stebbins sale a few months after the return of the listings.
The judgment appealed from should, therefore, be modified by increasing the amount of plaintiff's recovery to $983.32, so as to include his share of the commissions on the Stebbins sale, and as so modified affirmed, with costs to the plaintiff.
MARTIN, P.J., TOWNLEY, UNTERMYER and DORE, JJ., concur.
Judgment unanimously modified by increasing the amount of plaintiff's recovery to $983.32, so as to include his share of the commissions on the Stebbins sale, and as so modified affirmed, with costs to the plaintiff. Settle order on notice.