Seldin v. Block

Appellate Terms of the Supreme Court of New York

Seldin v. Block

150 N.Y.S. 471

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 14, 1914

StatusPublished

This text of 150 N.Y.S. 471 (Seldin v. Block) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Seldin v. Block, 150 N.Y.S. 471 (N.Y. Ct. App. 1914).

Pincite

Opinion

GUY, J.

The complaint is for breach of contract of employment. Plaintiff alleges that he was employed by the defendants for the sum of $520 per annum and 33% per cent, of the net profits of the department, for which he was to act as salesman and buyer. The answer admits the making of an agreement in writing with the plaintiff, but denies that the agreement was as alleged in the complaint, denies performance by plaintiff and wrongful discharge by the defendants, and alleges that plaintiff “voluntarily left the defendants’ service, and thereafter refused to render service as such salesman and buyer.”

On the opening of the case, defendants’ counsel moved to dismiss the complaint “on the ground that the court has no jurisdiction of the subject-matter of this action. The complaint is based on a contract [472]*472which * * * is a partnership agreement and constitutes the parties as partners, so that an equity action is necessary in order to adjust their rights.” The motion was granted, and an exception taken by plaintiff.

In dismissing the complaint, the learned court erred. The contract alleged in the complaint is a contract of employment, not one of partnership, and the mere fact that the proving of plaintiff’s case might necessitate the giving of proof as to a number of items does not alter the character of the action.

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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GUY, J.

The complaint is for breach of contract of employment. Plaintiff alleges that he was employed by the defendants for the sum of $520 per annum and 33% per cent, of the net profits of the department, for which he was to act as salesman and buyer. The answer admits the making of an agreement in writing with the plaintiff, but denies that the agreement was as alleged in the complaint, denies performance by plaintiff and wrongful discharge by the defendants, and alleges that plaintiff “voluntarily left the defendants’ service, and thereafter refused to render service as such salesman and buyer.”

On the opening of the case, defendants’ counsel moved to dismiss the complaint “on the ground that the court has no jurisdiction of the subject-matter of this action. The complaint is based on a contract [472]*472which * * * is a partnership agreement and constitutes the parties as partners, so that an equity action is necessary in order to adjust their rights.” The motion was granted, and an exception taken by plaintiff.

In dismissing the complaint, the learned court erred. The contract alleged in the complaint is a contract of employment, not one of partnership, and the mere fact that the proving of plaintiff’s case might necessitate the giving of proof as to a number of items does not alter the character of the action.

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

150 N.Y.S. 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seldin-v-block-nyappterm-1914.