32 A.D.2d 1057 | N.Y. App. Div. | 1969
Appeal by plaintiff from an order of the Supreme Court, Kings County, dated November 25, 1968, which granted defendant’s motion to dismiss the complaint. Order affirmed, with $10 costs and disbursements. No opinion. ' Christ, Acting P. J., Rabin and Benjamin, JJ., concur; Hopkins, J., dissents and votes to reverse the order and deny the motion to dismiss the complaint, with the following memorandum, in which Brennan, J., concurs. Plaintiff had an arrangement (evidenced by a letter) with Pederman & Co., of which the defendant was an officer, director and stockholder, whereby Pederman & Co. agreed to pay plaintiff 10% of its profits arising out of its transactions with Mauchly Associates, Inc. Plaintiff alleges that defendant, concealing his interest from plaintiff, entered into transactions with Mauchly from which he derived profits as a result of his connection with Pederman & Co. Plaintiff commenced the present action to recover his compensation from defendant. The complaint contains two causes of action — the first on the theory of contract and the second on the theory of a right to an equitable accounting. Defendant’s motion to dismiss the complaint admitted the allegations of the complaint, for the purpose of the motion (Denihan Enterprises v. O’Dwyer, 302 N. Y. 451; Haberman v. New York Ambassador, 272 App. Div. 375, affd. 297 N. Y. 836). It is no longer necessary that a complaint’s apparent theory of action be maintainable; the true test is whether a cause of action arises from the allegations of the complaint even though the pleader may not have recognized it (cf. CPLR 3013, 3026; Lane v. Mercury Record Corp., 21 A D 2d 602, affd. 18 N Y 2d 889; Duross Co. v. Evans, 22 A D 2d 573). The question, then, is this: did defendant owe any duty to plaintiff to refrain from knowingly evading the corporate obligation to plaintiff by arranging transactions within the scope of that obligation through other entities, out of which he (defendant) profited? I think he did. If the corporation had consummated the transactions with Mauchly, it would have been liable to plaintiff. The fair inference from the allegations of the complaint is that defendant took advantage of his relationship with the corporation to divert the corporate opportunities elsewhere for his own benefit; thus, he breached his duty to the corporation (O’Hayer v. De St. Aubin, 30 A D 2d 419, 426; Matter of Vogel [Lewis], 25 A D 2d 212, affd. 19 N Y 2d 589). The breach of his duty to the corporation did not engender any cause of action on behalf of plaintiff (cf. Kaminsky v. Kahn, 20 N Y 2d 573, 586), but it does have a significant bearing on defendant’s duty to plaintiff. The general rule that an officer or director of a
