Alida Oil Burner Sales Corp. v. Berggren & Anderson Machine Co.

251 A.D. 745, 296 N.Y.S. 88, 1937 N.Y. App. Div. LEXIS 7348

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1937
• Status: Published

Opinion

Judgment, so far as it dismisses the plaintiff’s complaint on the merits, reversed upon the law and the facts, with costs, and judgment directed, with costs, against the corporate defendant and defendants Wilner and Anderson for an injunction, and against the corporate defendant for an accounting, and matter remitted to the Special Term to take and state the account, or to send the matter to an official referee for such purpose and to report thereon to the Special Term. Findings of fact 6, 7, 8 and 11, and the subdivisions (a) and (e) of the conclusions of law are reversed. Plaintiff’s proposed findings of fact 35, 39, 42, 43 and 44 are found and proposed conclusions of law numbered 1, 2 and 3, based thereon, are made. In our opinion the complaint states and plaintiff has established a cause of action for an injunction against the corporate defendant and defendants Wilner and Anderson as its officers and agents, and for an accounting by the corporate defendant. The agreement having been made for the benefit of the plaintiff, and containing consideration moving from the plaintiff, the plaintiff can enforce it. (Ricard v. Sanderson, 41 N. Y. 179; Van Schaick v. Third Avenue R. R. Co., 38 id. 346.) The agreement gave to the plaintiff the exclusive sales right to the oil burner to be manufactured by the corporate defendant. This results in an implied promise on the part of the plaintiff to perform. (Wood v. Duff-Gordon, 222 N. Y. 88.) Hagarty, Davis, Johnston, Adel and Close, JJ., concur.