Briefstein v. P.J. Rotondo Const. Co.

• Decision Date: 25 June 1959
• Citation: 187 N.Y.S.2d 866,8 A.D.2d 349
• Parties: Joseph M. BRIEFSTEIN, Plaintiff-Respondent, v. P. J. ROTONDO CONSTRUCTION CO., Inc. and Peter J. Rotondo, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 866

187 N.Y.S.2d 866

8 A.D.2d 349

Joseph M. BRIEFSTEIN, Plaintiff-Respondent, v. P. J. ROTONDO CONSTRUCTION CO., Inc. and Peter J. Rotondo Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

June 25, 1959.

Max J. Gwertzman, New York City, for appellants.

Louis B. Frutkin, New York City, of counsel (George Kittner, New York City, atty.), for respondent.

Before BREITEL, J. P., and VALENTE, McNALLY, STEVENS and BERGAN, JJ.

BERGAN, Justice.

The form of the defendants' motion is to dismiss 'each of the four' causes of action set forth in the complaint on the stated ground that 'it', i. e., the complaint, does not state facts sufficient to constitute a cause of action.

The first cause is largely devoted to pleading an agreement to enter into a written contract which failed of consummation. Plaintiff alleges he owned a lumber business for many years and in April, 1956 defendants agreed that if he would liquidate the business they would sell him 25% of the stock of the corporate defendant for a fixed amount; employ him as a corporate officer and director at a specified salary; and take whatever corporate action necessary to protect him; in the words of the pleading: 'to assure' him 'of the security of his position'.

Plaintiff then alleges that he started the liquidation of his business and went into defendants' employ in September, 1956; that a proposed written contract was submitted to him by defendants which plaintiff rejected mainly because it lacked adequate safeguards for securing plaintiff's position.

All this, taken together, pleads merely an agreement to make a contract, incomplete in essential conditions, and, upon abundant authority, not enforcible (Brown v. New York Central Railroad Co., 44 N.Y. 79; Arliss v. Herbert Brenon Film Corporation, 230 N.Y. 390, 130 N.E. 587; St. Regis Paper Co. v. Hubbs & Hastings Paper Co., 235 N.Y. 30, 138 N.E. 495; Ansorge v. Kane, 244 N.Y. 395, 155 N.E. 683). It is clear that the parties intended to formalize their agreement when they should concur on terms, to be expressed in writing (Sherry v. Proal, 131 App.Div. 774, 116 N.Y.S. 234; Boysen v. Van Dorn Iron Works, 94 App.Div. 95, 87 N.Y.S. 995).

There appears within the frame of the first cause, however, the statement of a separable contract made in September, 1956 between plaintiff and the corporate defendant, to hire defendant as an administrative executive for a 'term ending September 1, 1957' at a fixed salary and a minimum bonus, 'plus twenty-five per cent of the said corporate defendant's profits, to be determined by usual accounting methods and to be paid at the termination of the said period of employment'.

Mutuality is pleaded in the plaintiff's agreement to work for this period for the corporation. The agreement is, however, within the statute of frauds (Personal Property Law, § 31).

Not only would the corporate profits, if 'determined by usual accounting methods' not be ascertainable until a period beyond the year during which the contract would run, and hence not be payable or performable within the year,...