194 A.D. 678 | N.Y. App. Div. | 1921
The appellant states in his brief that the action is to recover damages for a "wrongful discharge from employment. The
The contract further provides that “ The parties hereto will at no time claim any alteration, modification or extension of this agreement or of the by-laws which the parties agree shall be drawn in accordance therewith, or claim a waiver of any of the conditions and covenants herein contained or of the making of any new or other agreement contrary to the terms and conditions hereof unless the same shall be in writing and signed by the parties hereto. It is further agreed that under no circumstances will either party claim a waiver of the provisions of this paragraph, it being understood that their acquiescence in these provisions are part of the consideration from each to the other for the acceptance of this agreement, this being the only binding agreement between them.”
On June 15, 1917, the parties modified the agreement so as to make it expire on October 1, 1917, instead of December 1, 1918, by a sealed instrument in writing, which recites: “ To induce Mr. Wadler to enter into this agreement and extend the agreement of November 13th, 1916, accordingly and for other consideration received, Mr. Avedon agrees to devote his entire time and energy for the interest of the Company. It is further agreed that Mr. Avedon, from now on, shall not engage in any other line, or this line of business during the period of this contract.”
“ In consideration of the services to be rendered by Mr. Avedon, it is hereby agreed that his salary shall be Seventy-five ($75.00) dollars per week, for the period of this agreement, in place of Fifty ($50.00) dollars per week as heretofore.”
The complaint alleges that the corporation was formed in pursuance of the said agreement, and assumed, adopted, ratified and confirmed said agreement; that plaintiff duly performed all the conditions on his part to be performed except in so far as he has been prevented from so doing by the defendant; that on September 8, 1917, defendant, without just cause or provocation, discharged the plaintiff from his
The plaintiff, in my opinion, has not stated facts sufficient to constitute a cause of action against the corporation defendant. The provision for a payment of a sum equal to dividends was not a part of his compensation to be paid by the corporation, but was an agreement of Wadler to pay such sum in consideration of a release to him of all claim to the shares of stock which were issued to the plaintiff and pledged to Wadler as security for the purchase price which he advanced to the plaintiff. Whatever may be the right of action against Wadler, inasmuch as no dividends have been declared, the plaintiff has no cause of action at law to recover the amount which he assumes the corporation should have declared as dividends. (Beveridge v. N. Y. E. R. R. Co., 112 N. Y. 1, 27.) For aught that appears he is still a stockholder and has an aliquot interest in the surplus profits, but until dividends are declared he cannot recover that portion of the surplus.
The order should be affirmed, with ten dollars costs and disbursements, and final judgment directed to be entered in favor of the defendant dismissing the complaint, with costs.
Clarke, P. J., Laughlin, Smith and Merrell, JJ., concur.
Order affirmed, with ten dollars costs and disbursements, and final judgment directed dismissing the complaint, with costs.