James v. Alderton Dock Yards, Ltd.

225 A.D. 675

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1928
• Status: Published

Opinion

—Order affirmed, with ten dollars costs and disbursements. While it is the general rule that in the absence of an express contract an officer or director of a corporation cannot recover for services rendered without proving that such services were outside his duties as such officer or director and, in addition thereto, that they were rendered with the expectation of both parties that they should be paid for (Alexander v. Equitable Life Assur. Society, 233 N. Y. 300; Fox v. Arctic Placer Mining & Milling Co., 229 id. 124), appellant does not allege in its answer the absence of such contract. Pleading the resolutions adopted by appellant does not exclude the possibility of others. As to the second defense, the requirement of a broker’s license does not apply to one who sells a business as a going concern, including real estate as a part of the subject-matter of transfer. (Weingast v. Rialto Pastry Shop, Inc., 243 N. Y. 113.) The exercise of the discretion of the Special Term in denying defendant’s motion to compel plaintiff to reply to the affirmative defenses set up in the answer should not be disturbed. (Civ. Prac. Act, § 274.) Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ., concur.