Kleinman v. B & M Cleaners & Dyers, Inc.

• Decision Date: 05 November 1962
• Citation: 234 N.Y.S.2d 854,37 Misc.2d 117
• Parties: Sheldon KLEINMAN, Plaintiff, v. B & M CLEANERS & DYERS, INC., Defendant.
• Court: New York Supreme Court

Page 854

234 N.Y.S.2d 854

37 Misc.2d 117

Sheldon KLEINMAN, Plaintiff, v. B & M CLEANERS & DYERS, INC., Defendant.

Supreme Court, Special Term, Kings County, Part I.

Nov. 5, 1962.

Michael I. Begun, New York City, for plaintiff.

Henry Gallop, New York City, for defendant.

EDWARD G. BAKER, Justice.

Plaintiff moves for summary judgment in an action brought to recover judgment for $15,000, and interest, representing a sum allegedly owing to plaintiff under a written contract of employment.

The written contract between the parties, the validity of which is not in issue, provided for the employment of plaintiff by the defendant corporation for a period of one year terminating June 30, 1962, in consideration of which plaintiff was to receive a salary of $200 per week, and in addition, the sum of $15,000 together with interest, upon the aforementioned date. This employment agreement arose out of the sale to the defendant corporation of a cleaning and dyeing business, with routes, theretofore owned and operated by Cosmopolitan Curtain Cleaners, Inc. (hereinafter referred to as 'Cosmopolitan') with which plaintiff had been associated.

The opposition to the instant motion for summary judgment as disclosed in the affidavit of defendant's president which is the sole affidavit submitted in opposition, is based upon affirmative defenses and counterclaims interposed by defendant in its answer to the plaintiff's cause of action. These defenses and counterclaims, as amplified by defendant's affidavit charge in sum that plaintiff collected various amounts of money totaling $15,000 which properly belonged to defendant and which plaintiff failed to turn over to defendant; and that the defendant has paid out to creditors of plaintiff, on behalf of plaintiff, various amounts totaling $2,500 for which defendant has not been reimbursed.

I am persuaded from the submitted papers that the defendant has failed to meet the evidentiary showing made by plaintiff that the sums collected were received from Cosmopolitan customers and that said collections were in fact turned over to the defendant corporation and were not retained by plaintiff. In support of this claim, plaintiff asserts that these collections represented outstanding accounts receivable of Cosmopolitan which, by agreement with defendant, were to be deposited in Cosmopolitan's bank account remaining open for such purpose, and that these funds were to be applied toward payment of Cosmopolitan's debts which, under the terms of the contract of sale of its business to defendant, Cosmopolitan was required to satisfy. Plaintiff further assert that, at a conference attended by defendant's president as well as by its manager and its accountant, the plaintiff was authorized by the defendant to effectuate collection of these accounts receivable, to deposit the funds in Cosmopolitan's account and to pay Cosmopolitan's debts out of said account.

Defendant's president, while denying generally in the opposing affidavit that authorization was given for the deposit in Cosmopolitan's bank account of the funds representing collection of Cosmopolitan's accounts receivable, nevertheless makes no specific or express denial of plaintiff's assertions, evidentially supported, that all such sums were collected by the route...