Sultan v. Lamport Co.

12 A.D.2d 583, 207 N.Y.S.2d 786, 1960 N.Y. App. Div. LEXIS 6628

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 1960
• Status: Published

Opinions

Appeal from an order of the Supreme Court, at Special Term, entered December 18, 1959, in New York County which denied a motion by defendant for an order to dismiss the first and second causes of action of the amended complaint.

Memorandum by the Court.

Order entered on December 18, 1959, denying a motion to dismiss first and second causes of action of the amended complaint for insufficiency and granting the cross motion to serve an amended complaint, modified, on the law, to the extent of dismissing the first cause of action and, in the exercise of discretion, with leave to replead and the order, as so modified, affirmed, with $20 costs and disbursements to the appellant. In this action, under which the plaintiff seeks to recover for unlawful discharge as a sales agent for the defendant, the plaintiff annexes to the complaint a writing setting forth certain terms of an agreement entered into between the parties. The defendant, in support of his motion to dismiss the first cause of action, urges that it appears from the writing that no cause of action exists. It is true that on a motion to dismiss a complaint for insufficiency, where a party rests on a written agreement which is annexed to the complaint, the court will determine the rights of the parties by reference to that writing regardless of what effect the plaintiff attempts to give to it in his pleading. However, nothing in this complaint compels a construction that that writing constitutes the entire agreement between the parties. On the contrary there are additional terms of the agreement set forth. True, he characterizes those additional terms as conditions precedent but a fair reading of the first cause of action seems to indicate his intention to plead a contract of broader scope than that which is encompassed by the writing. We cannot tell from the complaint whether these additional terms were oral or in writing,

* nor does it appear conclusively that they vary or contradict the terms of the written document rather than supplement them. Whether or not the plaintiff will be able to offer introducible evidence in support of those additional terms we cannot determine from the pleadings. However, the first cause of action does not set forth an agreement with sufficient clarity to enable the defendant to properly answer. Moreover, the first cause of action is deficient in that there is no showing of the duration of his period of employment. It is, therefore, lacking in a term essential to an enforci'ble contract. The first cause of action should therefore be dismissed. However, the plaintiff should be given an opportunity to replead clearly the entire agreement upon which he relies. We find the second cause of action to be sufficient. Ignoring the inappropriate use of the term “ condition precedent ” and giving a liberal construction to the pleading, it appears that what is pleaded is an independent agreement whereby upon the termination of plaintiff’s employment, he would be reimbursed for his relocation expenses. Such an agreement, if proven, can stand on its own regardless of whether the first cause of action is good or bad. He alleges the employ • ment and he alleges the termination thereof. His claim is for reimbursement of his relocation expenses which he alleges was promised upon the termination of that employment. While it is true that this cause would suffer from the same infirmities as does the first cause of action if we were obliged to treat this agreement as part of the basic employment contract, there is nothing in the pleading that makes it mandatory that we do so. The agreement here pleaded can be considered as a separate and distinct one sustained by an independent and adequate consideration.

The brief of the plaintiff-respondent refers to these additional terms as being oral but there is no explicit concession to that effect. However, the resolution of this appeal does not depend on whether they were oral or in writing.