11 Misc. 2d 814 | N.Y. Sup. Ct. | 1958
Motion by defendants to dismiss each of two causes of action for insufficiency. The factual allegations of the complaint are assumed to be true.
As a second cause of action plaintiff realleges all of the allegations of the first cause of action, and in addition that the defendants conspired to interfere with plaintiff’s contract with the defendant, and that the codefendants induced the defendant to breach the same and to refuse to render his services to the plaintiff.
With respect to the first cause of action defendants’ first contention is that inasmuch as the date of defendant’s engagement was to be mutually agreed upon by both parties, -there is no enforcible agreement, citing May Metropolitan Corp. v. May Oil Burner Corp. (290 N. Y. 260). In that very ease, however, the Court of Appeals, while affirming the principle that ‘ ‘ A contract is incomplete and unenforceable when, as to some essential term, there has been no agreement but only an agreement to agree in the future ”, went on to say “ But a contract is not necessarily lacking in all effect merely because it expresses the idea that something is left to future agreement.” (P. 264.)
Similarly, Williston in Ms work on Contracts (rev. ed., Vol. 1, § 40, p. 114) says: ‘ ‘ Frequently the time stated in a promise is
In the instant case the parties definitely stated the four months of the year in which performance was to occur. In addition, plaintiff left the choice of the particular time to the defendant. Under such circumstances it cannot be said that the agreement was too indefinite to be enforcible.
Defendants’ second contention, that the agreement is vague and indefinite, is in effect a repetition of the first argument which has already been rejected.
Defendants’ third contention is that an agent for a disclosed principal, acting within the scope of his authority, is not liable for a breach of the contract unless the intent to bind himself personally clearly appears. That statement of law is correct (Keskal v. Modrahowski, 249 N. Y. 406; Mencher v. Weiss, 306 N. Y. 1), and the first cause of action is, therefore, insufficient as to the codefendants since they allegedly were acting only as the agents of the defendant. The first cause of action is, however, sufficient as to the defendant himself.
With respect to the second cause of action defendants contend that an alleged conspiracy by a contracting party with others fails to state a cause of action against any defendant. This is not quite correct. It is true that an allegation of conspiracy by a contracting party to breach his own contract does not constitute an independent cause of action, and this cause of action is insufficient as to the defendant himself. (Friedman v. Roseth Corp., 270 App. Div. 988, affd. 297 N. Y. 495; Labow v. Para-Ti Corp., 272 App. Div. 890.) As to the codefendants, however, the second cause of action sufficiently alleges an action for inducing the defendant to breach his contract. (Hornstein v. Podwitz, 254 N. Y. 443.)
Nor did the codefendants acquire immunity for their acts because they were acting as agents. (2 Restatement, Agency, § 343, p. 753.) The cases cited by the defendants are readily distinguishable since they involve corporations which can act only through their officers, directors and agents. (Potter v. Minshoff, 2 AD 2d 513, 514.)
The motion is granted to the extent of dismissing the first cause of action as to the codefendants, and dismissing the second cause of action as to the defendant.
Submit order accordingly.