Tuohey v. Carvin Bottle Cap Corp.

257 A.D. 856 | N.Y. App. Div. | 1939

In an action by a salesman to recover commissions alleged to be due under a contract of employment, order denying defendant’s motion for partial summary judgment dismissing the first and second causes of action of plaintiff’s complaint affirmed, with ten dollars costs and disbursements. No opinion. Carswell, Adel and Close, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent and vote to reverse and to grant defendant’s motion for partial summary judgment dismissing the first and second causes of action. The alleged contract constituting the basis of the first cause of action whereby defendant undertook to furnish screw caps to the distilling company was for part of the latter’s requirements to a maximum of sixty million. The contract makes no provision for a specific proportion of such maximum which is to be accepted by the distilling company. The latter obviously is endowed with discretion to determine what proportion, if any, of such caps it would take. The purported contract, therefore, is unenforceable. So too, with the alleged contract constituting the basis of plaintiff’s second cause of action. As to that transaction, the distilling company struck out a provision providing for sale to it of a minimum of one million caps. There was no binding contract in either instance and, therefore, plaintiff is not entitled to commissions other than those which he has been paid.