Carr v. Lipshie

• Decision Date: 25 June 1959
• Citation: 8 A.D.2d 330,187 N.Y.S.2d 564
• Parties: Hi Z. CARR, d/b/a Carr Buying Office, Plaintiff-Respondent, v. Juseph LIPSHIE, Norman Lipshie and Allan Bernstein, as co-partners d/b/a Joseph Lipshie Associates, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 564

187 N.Y.S.2d 564

8 A.D.2d 330

Hi Z. CARR, d/b/a Carr Buying Office, Plaintiff-Respondent, v. Juseph LIPSHIE, Norman Lipshie and Allan Bernstein, as

co-partners d/b/a Joseph Lipshie Associates,

Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

June 25, 1959.

Boris Kostelanetz, New York, City, of counsel (Thomas F. Ryan, New York City, on the brief; Corcoran, Kostelanetz & Gladstone, New York City, attorneys), for defendants-appellants.

Jerome S. Rubin, New York City, of counsel (Nathan H. Gates, New York City, attorney), for plaintiff-respondent.

Before RABIN, J. P., and M. M. FRANK, VALENTE, McNALLY and BERGAN, JJ.

PER CURIAM.

The defendants appeal from an order denying their motion to dismiss portions of the complaint as being barred by the Statute of Limitations.

The action, instituted by the plaintiff who conducts buying offices, is against a firm of accountants. The parties entered into a retainer agreement on or about May 1, 1950, for services to be rendered for the balance of the year, but terminable at will. In January, 1951, another agreement was made for the same services on an annual basis, and it was renewed or renegotiated for the years 1952, 1953 and 1954.

The action was commenced on January 30, 1957, and the complaint therein contains thirteen causes of action, of which all but the seventh are attacked. The question for decision is whether the complaint is based on breach of contract or tort and, therefore, whether the three- or six-year statute applies.

The plaintiff contends, and the learned Justice at Special Term held, that the action is for breaches of contract and of warranty. The order directs the service of an amended complaint limited to transactions that occurred after January 30, 1951.

There is no question that where a plaintiff has several remedies available to him, arising from the same transaction or incident, he may select the form of remedy to pursue, and the fact that one may be statutorily barred does not affect his right to avail himself of others (Dentists' Supply Co. of New York v. Cornelius 281 App.Div. 306, 119 N.Y.S.2d 570, affirmed 306 N.Y. 624, 116 N.E.2d 238; Wood on Limitations, 4th Ed. Vol. 1, Sec. 57b). Therefore, when the remedy of an action for breach of contract or warranty coexists with an action grounded in tort, a plaintiff may exercise his option.

In seeking to sustain the order, the plaintiff relies principally on Blessington v. McCrory Stores, 305 N.Y. 140, 111 N.E.2d 421 and Dentists' Supply Co. of New York v. Cornelius (supra). The Blessington case was concerned with the question as to whether an action for a breach of an implied warranty of fitness for use was barred by the three-year statute of limitations. The Court of Appeals, in holding it was not, said (305 N.Y. at page 147, 111 N.E.2d at page 422): '* * * although such a breach of duty may rest upon, or be associated with, a tortious act, it is independent of negligence * * *.' Dentists' Supply involved the right of the plaintiff to sue for conversion of his property or in quasicontract on the theory that he ratified the transfer of the goods as if it were a sale. Both cases, therefore, are inapposite here. The rationale inherent in them does not apply to the facts as pleaded in the complaint under consideration.

Turning to the complaint, we find that the plaintiff alleges that the 'services agreed to be performed * * * were such accounting services as are customarily performed by an independent auditor * * *. It was understood by the parties that all of the services to be performed by defendants were to be in accordance with generally accepted standards of good...