Kane v. Rodgers

• Decision Date: 18 June 1964
• Citation: 250 N.Y.S.2d 674,21 A.D.2d 773
• Parties: Raymond P. KANE and Lawrence S. Delancey, Plaintiffs-Respondents, v. Frances Marie RODGERS, Defendant-Respondent, and Eleanor Hagelin and Francesco Pisa, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 674

250 N.Y.S.2d 674

21 A.D.2d 773

Raymond P. KANE and Lawrence S. Delancey, Plaintiffs-Respondents, v. Frances Marie RODGERS, Defendant-Respondent, and Eleanor

Hagelin and Francesco Pisa, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

June 18, 1964.

J. M. Leonard, New York City, for plaintiffs-respondents.

D. Brady, N. H. Josephs, New York City, for defendants-appellants.

Before BREITEL, J. P., and VALENTE, STEVENS, STEUER and STALEY, JJ.

PER CURIAM.

Interlocutory judgment, entered March 5, 1964, awarding plaintiffs beneficial interests in capital stock and other relief, unanimously modified, on the law and in the exercise of discretion, by amending the penultimate paragraph to provide for the prompt assessment of exemplary damages, if any, after reasonable notice, and the interlocutory judgment is otherwise affirmed, with costs to plaintiffs-respondents against defendants-appellants. The arrangement between plaintiffs-respondents and defendant-respondent Rodgers and through her with defendant-appellant Hagelin created an agency relationship with Rodgers and with Hagelin by reason of the joint relationship between Rodgers and Hagelin. This sufficed to make the written agreements with defendant-appellant Pisa enforceable by plaintiffs-respondents as principals, although they are not named in such agreements (see Restatement, Agency, Second, §§ 147-149, 302; 2 N.Y.Jur., Agency, §§ 272, 318). The agreements provided that the incidents of ownership of the capital stock held by the escrowee were in the buyers, and that the stock was to be delivered to the escrowee by July 2, 1962. Hence, plaintiffs-respondents became the beneficial owners, of part of the capital stock sold under the agreements (see, e. g., Broderick v. Adamson [Greif], 270 N.Y. 260, 263-264, 200 N.E. 811, 813; Broderick v. Alexander [Kahn], 268 N.Y. 306, 309-310, 197 N.E. 291, 292, 103 A.L.R. 1079). The statute of frauds, therefore, is no bar, since the acts to be performed beyond a year concern only enforcement of plaintiffs-respondents' existing ownership rights under the written agreements. It was inappropriate to suspend the imposition of exemplary damages pending review of compliance of defendant-appellant Pisa with the interlocutory judgment. Ample remedies exist for the enforcement of court orders. There should be a prompt assessment of any exemplary damages. Settle order on notice.