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CENTERBANK MORTGAGE COMPANY, Respondent, v. HOWARD SHAPIRO, Appellant.

Ordered that the judgment is affirmed, with costs.

It is well settled that an action to recover excess monies paid to an employee from a drawing account "is viable where an agreement exists by which the employee agreed to repay the excess drawn out of the account above the commissions earned" ( Boutique Indus, v Sobel, 223 AD2d 398, 399; see, Posner v Precision Shapes, 271 App Div 435), but without such an agreement, express or implied, the employer cannot recover such excess from the employee ( Pease Piano Co. v Taylor, 197 App Div 468, affd 232 NY 504; Nationwide Mut. Ins. Co. v Timon, 9 AD2d 1018; see, Carter v Bradlee, 245 App Div 49, 52, affd 269 NY 664; Posner v Precision Shapes, supra, at 439). The court correctly determined that the defendant agreed to repay draws against unearned commissions with respect to draws taken beyond the 90th day of employment.

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CENTERBANK MORTGAGE CO. v. SHAPIRO
(Mar 24, 1997)