Feinerman v. Russ Togs, Inc.

37 A.D.2d 805 | N.Y. App. Div. | 1971

Order, Supreme Court, New York County, entered October 29, 1970, dismissing the first cause of action in the amended complaint and denying the motion to dismiss the second and third causes of action, unanimously modified on the law, without costs and without disbursements, to the extent of granting the motion insofar as to dismiss the second cause of action and, as so modified, affirmed. The dismissal of the first cause of action was proper on the ground that the alleged two-year employment was unenforceable as a matter of law. (General Obligations Law, § 5-701, subd. 1.) The third cause of action is sustainable. It alleges the individual defendant falsely represented that the corporate defendants would enter into a contract of employment with plaintiff if he terminated his contract with his then employer knowing that the corporations which he controlled had no intention of employing plaintiff. The allegations, if established, sustain an action in common-law fraud. The second cause of action is not sustainable. It fails to incorporate the allegation that the corporations did not intend to employ plaintiff. On the contrary, the third cause of action alleges the corporations had not authorized, approved or ratified the individual defendant’s actions. Concur — Capozzoli, J. P., MeGivern, Nunez, McNally and Macken, JJ.