Turner v. Payne

7 A.D.2d 972, 183 N.Y.S.2d 459, 1959 N.Y. App. Div. LEXIS 9549

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1959
• Status: Published

Opinions

Memorandum by the Court. There is no irreconcilable inconsistency between the written agreement upon which plaintiff’s causes of action are predicated and the theory upon which plaintiff attempts to hold all of the defendants liable thereunder. The reference to " Associates ” in the body of the contract and the signature of Bruce Payne — without express indication of subscribing in a representative capacity — when coupled with the allegations of the complaint concerning the interrelated functioning of all of the defendants as one unit under the control of Bruce Payne, are sufficient to sustain the complaint and require answer by the defendants. Ambiguities in the contract as to the identity of the employer or employers who assumed responsibility can only be resolved by proof. We cannot say, as a matter of law, from the face of the complaint that the moving defendants, Associates and Bruce Payne, were not bound by the contract.