Roberts v. Kerby Saunders, Inc.

Appellate Division of the Supreme Court of New York

Roberts v. Kerby Saunders, Inc.

37 A.D.2d 830, 325 N.Y.S.2d 387, 1971 N.Y. App. Div. LEXIS 3209

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 26, 1971

StatusPublished

This text of 37 A.D.2d 830 (Roberts v. Kerby Saunders, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Roberts v. Kerby Saunders, Inc., 37 A.D.2d 830, 325 N.Y.S.2d 387, 1971 N.Y. App. Div. LEXIS 3209 (N.Y. Ct. App. 1971).

Pincite

Opinion

Judgment, Supreme Court, New York County, entered on April 2, 1970, unanimously reversed, on the law, and the case remanded for trial ab initio, with costs and disbursements to abide the event. At the end of plaintiff’s case in this action for commissions under an employment contract, the complaint was dismissed, the court deciding as a matter of law that plaintiff had not proven compliance with a condition precedent contained in the contract. Even assuming, but not deciding, the applicability of that condition to this situation, there was at the very least a factual issue as to whether, by conduct, defendant had waived that requirement. In dismissing, the trial court did not decide whether plaintiff had established a prima facie case as to the claimed impropriety of defendant’s distribution of the commissions to which plaintiff claims to be entitled. A new trial is therefore required. Concur—'Capozzoli, J. P., Markewich, Nunez, Murphy and McNally, JJ.

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Judgment, Supreme Court, New York County, entered on April 2, 1970, unanimously reversed, on the law, and the case remanded for trial ab initio, with costs and disbursements to abide the event. At the end of plaintiff’s case in this action for commissions under an employment contract, the complaint was dismissed, the court deciding as a matter of law that plaintiff had not proven compliance with a condition precedent contained in the contract. Even assuming, but not deciding, the applicability of that condition to this situation, there was at the very least a factual issue as to whether, by conduct, defendant had waived that requirement. In dismissing, the trial court did not decide whether plaintiff had established a prima facie case as to the claimed impropriety of defendant’s distribution of the commissions to which plaintiff claims to be entitled. A new trial is therefore required. Concur—'Capozzoli, J. P., Markewich, Nunez, Murphy and McNally, JJ.

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Bluebook (online)

37 A.D.2d 830, 325 N.Y.S.2d 387, 1971 N.Y. App. Div. LEXIS 3209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-kerby-saunders-inc-nyappdiv-1971.