124 N.Y.S. 194 | N.Y. App. Div. | 1910
The. action was originally brought against Edward H. Harriman • on an express contract between him and the plaintiff resting in parol, by which the plaintiff undertook, as he alleged, to abandon all connection with a project to construct and operate a certain interurban railway between the city of St. Joseph and the city or town of South St. Joseph, in the State of Missouri, and “ to use and devote his time, labor, influence and services, so far as might be necessary and proper, in co-operation with the president and other officers” of another interurban electric railway about to be built between said points, of which Harriman was the owner of all or a greater part of the capital stock, and “ to the development arid extension of the interests, business and welfare ” thereof until Harriman should dispose of his stock" therein. It was further alleged that the original defendant in consideration of the premises set forth in the complaint, promised and agreed to pay to the plaintiff one-fourth of such sums as he might realize from a sale of his said stock, or such sum as he might receive from any reorganization of said corporation, over and above the amount expended by him in acquiring the stock. It will thus be seen that the original complaint was not to recover for the value of services' on an express contract to pay their agreed value in any event, but was on a contract by which the plaintiff was to recover for severing his connection with the other contemplated street railway and for services rendered to Harriman, only in the event that the latter sold his stock in the company in which he was interested at a profit, or obtained a profit thereon on a reorganization of the corporation and in that event the plaintiff was to receive one-fourtli of the profit. The plaintiff also served a bill of particulars in which he stated that the contract was jiot in writing; that he personally negotiated it with Harriman and that its terms were as alleged in the complaint. Harriman by his answer put in issue the material allegations of the,complaint. By the death of Harriman the plaintiff became an incompetent witness to prove the
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Ingraham, P. J., Clarke, Soott and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten. dollars costs.