Kleeberg v. Sipser

• Decision Date: 03 July 1934
• Citation: 191 N.E. 845,265 N.Y. 87
• Parties: KLEEBERG v. SIPSER.
• Court: New York Court of Appeals Court of Appeals

265 N.Y. 87

191 N.E. 845

KLEEBERG

v.SIPSER.

Court of Appeals of New York.

July 3, 1934.

Action by Gordon S. P. Kleeberg against Joseph N. Sipser. From a judgment of the Appellate Division (240 App. Div. 887, 267 N. Y. S. 990) which affirmed a judgment of the Trial Term dismissing the complaint, plaintiff appeals.

Modified and, as modified, affirmed.

LEHMAN and CROUCH, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Harris Jay Griston, and Lewis F. Glaser, both of New York City, for appellant.

M. James Spitzer, and Lorenz Reich, Jr., both of New York City, for respondent.

O'BRIEN, Judge.

The action is for libel and the complaint was dismissed upon the ground that it states no cause of action. Only a question of sufficiency of pleading is presented by this appeal.

Five alleged causes of action are set forth and they aver the following to be facts: Plaintiff is an attorney admitted to practice in this state and was retained by Louis Orlik, residing in London, to represent him here in certain business negotiations with his brother Alfred Orlik, a resident of New York. Defendant's interest, if any, in these negotiations does not appear from the complaint. During their pendency, defendant addressed five messages by cable and letter to plaintiff's client which are recited respectively in each of the five causes of action. The first reads: ‘Interview with Kleeberg useless in spite of your recommendation to give me satisfaction Kleeberg apparently favours lawsuit and insists receiving copy of contract which Alfred's lawyer refuses to give therefore I suggest you mailing promptly copy and your specific instructions to Kleeberg.’ The second: ‘I gained the impression that Kleeberg would rather see a fight than bring you and Alfred together * * *. It is obvious why Mr. Kleeberg wants to rehash the entire case. How can we consider K's (meaning plaintiff's) attitude impartial or as acting in good faith, when he threatens, because the contract was refused to him, that he will now advise you do nothing else but fight Alfred? (meaning Alfred Orlik). Who cares about his threat, the fact is that he broke off negotiations instead of having made efforts to bring about an understanding to save you and Alfred further lawyer expenses. He could serve better in a quarrel between two brothers if he would be guided by the fair and just points at issue. Your letter of Sept. 28th, expresses the intention of a friendly attitude and I presume it is your object, or at least your desire, to come to an understanding, whilst it is my belief that the ugly attitude of Kleeberg towards me was neither appropriate nor in accordance with your intentions. In view of the fact Kleeberg did not act according to your wishes, I cabled you on Oct. 24th as follows: Interview with Kleeberg useless in spite of your recommendation to give me satisfaction Kleeberg apparently favors lawsuit and insists receiving copy of contract which Alfred's lawyer refuses to give therefore I suggest you mailing promptly copy and your specific instructions to Kleeberg.’ The third: ‘Mr. Kleeberg attached a new condition, which you did not mention in your letter to him, that, in exchange for this clarification, he would require a certified cheque for the payment of the first note and also here I agreed. After all appeared ready for a settlement, Mr. Kleeberg changed his mind again, and informed me that he will advise you not to sign the clarification, that he will draw up a different document, which Alfred should or must accept. You know quite well that Kleeberg's paper will not be acceptable to Alfred's lawyer, and there is no doubt of Kleeberg's object.’ The fourth: ‘Your instructions to Kleeberg proposing, modifying third paragraph of clarification should end all troubles and I also agreed immediate payment first note in exchange for such modified clarification but Kleeberg's refuses carrying out your wishes. Kleeberg's attitude will cause litigation and large lawayer expenses for everybody unless you instruct him carrying out your wishes.’ The fifth: ‘Can arrange immediate payment both notes in exchange for clarification however the third modified paragraph must be satisfactory to Alfred's lawyer stop Kleeberg refuses signing this clarification and also refuses my mediation stop. If Kleeberg continues...