CENTERBANK MORTGAGE CO. v. SHAPIRO

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.