Miglietta v. Kennecott Copper Corp.
| Decision Date | 08 February 1966 |
| Citation | 25 A.D.2d 57,266 N.Y.S.2d 936 |
| Parties | J. Romeo MIGLIETTA and William B. Millar, Plaintiffs-Respondents, v. KENNECOTT COPPER CORPORATION, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
William Piel, Jr., New York City, of counsel (Frederick A. Terry, Jr., and Donald C. Christ, New York City, with him on the brief, Sullivan & Cromwell, New York City, attorneys), for appellant.
Edward N. Costikyan, New York City, of counsel (Edward F. Malone, New York City, with him on the brief, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, attorneys), for respondents.
Before VELENTE, J. P., and McNALLY, EAGER, STEUER and WITMER, JJ.
The complaint is framed to recover damages for breach of a written agreement for the exploitation, as a joint venture, of certain asbestos deposits located in Greece. Since a copy of the agreement is annexed to and made a part of the complaint, 'the rights and duties of the parties must be determined by the terms of the contract annexed to the complaint, and not by the plaintiff's characterization or construction thereof in his pleading.' (3 Carmody-Wait, N.Y.Prac., p. 569.) '[T]he rights of the parties thereunder must be determined by the terms of that instrument, without the aid of such conclusions as the plaintiff has set up respecting its legal effect.' (New Amsterdam Casualty Co. v. Mobinco B. Co., Inc., 219 App.Div. 486, 488, 220 N.Y.S. 340, 342.) Therefore, insofar as plaintiffs' allegations as to the legal effect of the annexed written agreement are at variance with or tend to improperly enlarge upon the terms thereof, such allegations must be disregarded. Here, no facts are alleged to show the breach of any covenant or condition contained in or reasonably to be implied from the terms of the annexed agreement; and, consequently, the complaint fails to set forth any cause of action to recover for breach of such agreement.
Furthermore, it appears from the complaint that, pursuant to the terms of the agreement, the joint venture was to be merged into a corporation; that the defendant, on behalf of the venture, did form a corporation to develop and exploit the abestos deposits; and that the assets of the joint venture were in fact set over to the corporaion, the capital stock of which was issued, 5% thereof to the plaintiffs and 95% thereof to the defendant.
Under the circumstances, that plaintiffs, as stockholders of the corporation which acquired the assets of the joint venture, ordinarily would be relegated to their...
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...they are bound by the result and are relegated to their rights as corporate stockholders. See, e.g., Miglietta v. Kennecott Copper Corp., 25 A.D.2d 57, 266 N.Y.S.2d 936 (1966) (joint venture agreement provided that it was to be "merged into a corporation" and there was no reservation by pla......
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...provisions establish the rights of the parties and prevail over conclusory allegations of the complaint (see Miglietta v. Kennecott Copper Corp., 25 A.D.2d 57, 266 N.Y.S.2d 936; Metcalf v. Metcalf, 274 App.Div. 744, 87 N.Y.S.2d 122; Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y......
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...and, therefore, he does not have an individual cause of action for the alleged wrongs of the defendants. (See Miglietta v. Kennecott Copper Corp., 25 A.D.2d 57, 266 N.Y.S.2d 936.) Finally, the plaintiff has failed to establish any wrongful conduct on the part of defendants. He has failed to......
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...from the contract itself and not from the plaintiff's allegations in the complaint of its obligations (Miglietta v. Kennecott Copper Corp., 25 A.D.2d 57, 266 N.Y.S.2d 936; La Potin v. Julius Lang Co., 30 A.D.2d 527, 290 N.Y.S.2d 619). Since Feist & Feist was not a party to the contract, the......