Rodgers v. McLoughlin

167 A.D. 931, 151 N.Y.S. 999

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1915
• Status: Published

Opinion

Per Curiam:

By the contract sued upon plaintiff’s compensation was to be a percentage of the total stocks and holdings acquired by said copartners. His right to such percentage depends on defendants’ having first acquired these stocks. Merely being entitled to such stock, without getting it, dqes not enable plaintiff to enforce his demands, which are for a fractional part of something already in hand or under defendants’ control This the amended complaint avers in the alternative, “ defendants herein have acquired and received, or became legally and duly entitled to acquire and receive.” Such alternative allegations may be good when plaintiff can recover upon either alternative. And this form of pleading must rest on the second of the two alternatives, as the case so made is not stronger than its weakest aspect. Here the ten per cent sued for only comes due when the stocks have been acquired, not when defendants may have a good chose in action for their recovery. The order denying plaintiff’s motion for judgment is, therefore, affirmed, with ten dollars costs and disbursements. Jenks, P. J., Thomas, Stapleton, Rich and Putnam, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.