20 A.D.2d 781 | N.Y. App. Div. | 1964
Lead Opinion
Memorandum by the Court. 'The motion, made pursuant to rule 3211 (subd. [a], par. 7) of the Civil Practice Law and Rules, was addressed solely to the sufficiency of the complaint insofar as it purports to state a cause of action to recover damages in connection with the termination of the plaintiff’s employment by Power Bilt Corporation (herein referred to as “Power Bilt 2nd”). Special Term held that the complaint sufficiently stated a cause of action on theory of breach of defendant’s obligation to act in good faith and do nothing that would destroy one of the considerations underlying all of the agreements between the parties. We agree that, under the doctrine of liberal construction to be afforded pleadings under the Civil Practice Law and Rules, this complaint does state a sustainable cause of action on such theory. The pleading adequately sets forth the agreements between the parties, including an agreement whereby Power Bilt 2nd, a wholly owned subsidiary of defendant, was to employ plaintiff for a period of five years at a stated salary plus commissions, and the defendant’s agreement to guarantee the payment to plaintiff of the amounts provided for under the terms of the said employment; and that plaintiff has duly performed the terms of the employment agreement on his part. It is further alleged that “ defendant broke and violfited the agreements ” and failed to perform the same in that “ (b) the defendant by its negligence, abandonment, willful and careless mismanagement, by its omissions and commissions, terminated and caused to be terminated the business of ‘Power Bilt 2nd’, terminated and caused to be terminated the employment of the plaintiff and caused the cessation of all benefits due and payable to the plaintiff under the terms of the aforesaid employment agreement, [and] (e) the defendant failed, neglected and refused to use its best efforts or reasonable care in the control, management and operation of the affairs of ‘ Power Bilt 2nd ’ and wilfully, negligently and carelessly acted in violation of the plaintiff’s rights and contrary to the intent and meaning of the agreements among the parties.” Since the plaintiff has duly pleaded the agreements between the parties, due performance on plaintiff’s part, the acts and conduct on the part of the defendant claimed to constitute a breach of the agreements, and plaintiff’s general
Dissenting Opinion
The appeal is from an order denying a motion to dismiss the complaint. The complaint alleges that the plaintiff sold his business to Power Bilt Corporation, a subsidiary of defendant, and then entered into a contract of employment with Power Bilt. Defendant guaranteed payment of notes which were a part of the purchase price, and also
There can be very little dispute but that the complaint does not allege any breach of the terms of the contract. Nor can there be any question that defendant did not owe plaintiff any duty to exercise control over Power Bilt’s management or affairs, nor to use care in whatever control it might have exercised. So on neither theory is a cause of action stated.
As I understand the majority’s position, it is based on the proposition that on the facts plaintiff might have stated a cause of action. If the defendant in fact so operated the affairs of Power Bilt as to bring about its insolvency and did this for the purpose of avoiding and rendering nugatory plaintiff’s contract with Power Bilt, this would be a cause of action. While it is indisputable that both the sense and spirit of the Civil Practice Law and Rules mandate an attention to the sense and proper intendment of a pleading rather than its precise wording, to the end that, if it advises the court of what the plaintiff is seeking and the opposing party of what he will have to meet, it suffices (Foley v. D’Agostino, 21 A D 2d 60), it is submitted that this complaint meets neither test. The facts that plaintiff would have to prove are far more onerous than what he has alleged, or what he may know can be established.
When the plaintiff goes to trial he can expect that if he proves his allegations he will be entitled to a verdict. And the trial court will perforce be required to so rule. Is anything gained by setting the record straight at that stage of the proceedings rather than at the outset? It is undoubtedly good to discourage time-consuming and technical motions addressed to pleadings, but not at the expense of either substantive rights or when the form of the pleading attacked will inevitably result in more burdensome applications to the court at a later stage of the proceedings.
1 would vote to reverse the order, and dismiss the complaint with leave to plead over if so advised.
Botein, P. J., Breitel, Yalente and Eager, JJ., concur in Memorandum by the court; Steuer, J., dissents and votes to reverse, in opinion.
Order, entered on November 14, 1963, affirmed, with $20 costs and disbursements to the respondent.