Schwartzman v. Weintraub

• Decision Date: 24 April 1984
• Citation: 100 A.D.2d 818,474 N.Y.S.2d 751
• Parties: Edward SCHWARTZMAN, Plaintiff-Appellant, v. Walter WEINTRAUB, et al., Defendants-Respondents, and Marpol Opinions and Polls, Inc., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 751

474 N.Y.S.2d 751

100 A.D.2d 818

Edward SCHWARTZMAN, Plaintiff-Appellant, v. Walter WEINTRAUB, et al., Defendants-Respondents and Marpol Opinions and Polls, Inc., et al., Defendants.

Supreme Court, Appellate Division First Department.

April 24, 1984.

M.N. Spain, New York City, for plaintiff-appellant.

J.S. Greenspun, New York City, for defendants.

Before ASCH, J.P., and BLOOM, LYNCH and KASSAL, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County, entered November 29, 1983, after bench trial, which dismissed the plaintiff's complaint, is reversed on the law and facts to the extent appealed from, the first cause of action of the complaint is reinstated, judgment granted to plaintiff on said first cause of action and the matter remanded for a hearing as to damages, with costs and disbursements of this appeal payable to plaintiff-appellant.

Defendant Weintraub is in the business of telephone research and solicitation for commercial accounts. He owned and operated defendant WW National Telephone Advertising, Inc., a commercial survey business. Apparently, during 1968, plaintiff Schwartzman approached Weintraub, who had been a personal friend, with the idea of doing political survey and solicitation work for him on the Nathan Strauss and Frederick Richmond congressional primary campaigns. Weintraub agreed, and on April 4, 1968 the parties entered into an agreement which provided that in exchange for plaintiff's part-time technical and consulting services on the two congressional campaigns, he would receive from Weintraub one-half of the net campaign profits. Further, defendant Weintraub agreed to maintain the books and records, which plaintiff would have the right to review.

Eleven days later, on April 15, 1968, the parties entered into another written agreement which provided the following:

"To Whom It May Concern:

This is an agreement between Edward Schwartzman (575 Grand Street, New York) and Walter Weintraub (Yonkers, New York) relating to income generated by political surveys and solicitations by Nat'l Telephone Advertising Co. Net income generated by this activity is to be equally divided between Schwartzman and Weintraub. Mr. Schwartzman's contribution to the Strauss and Richmond campaigns occasioned by this agreement/Accounts may be reviewed if required by Mr. Schwartzman or his attorney or accountant."

During 1968, plaintiff worked on the two congressional campaigns and also on another congressional primary campaign. For these campaigns, plaintiff testified at trial that he received what defendant informed him was 50 percent of the net income from each campaign.

Plaintiff and defendant again worked together during the spring and fall of 1970 on the Senate primary and general election campaigns, respectively, of Richard Ottinger. At trial, plaintiff testified that he was paid by Weintraub $16,000 for his work in the primary campaign and $13,000 for his work in the general election campaign, for a total of $29,000. Plaintiff also testified that he was informed by Weintraub that the $29,000 constituted one-half of the net campaign income.

At trial, Weintraub testified that the net profit made from the Ottinger campaigns was substantially higher than $58,000 but confirmed that plaintiff had received only $29,000 (one-half of $58,000). Weintraub testified that he had not paid plaintiff 50 percent of the profits of the Ottinger campaign and that the net profits for the Ottinger primary and election were $80,000 to $100,000 each.

In early 1972, plaintiff worked with defendant on the McGovern New Hampshire presidential primary campaign. Thereafter, the parties had a "falling out" and their relationship deteriorated. On or about April 23, 1972, the two men apparently decided to end their business relationship. Plaintiff testified that at that time he wanted an accounting. Shortly thereafter, on or about May 7, 1972, plaintiff sent a letter to defendant. In this letter, plaintiff indicated that after thinking about Weintraub's statement, "let's go our separate ways," he concluded that their business relationship should be terminated. Further, "to end it cleanly and without rancor," plaintiff requested that defendant make arrangements for plaintiff's accountant to examine the business records. Specifically, plaintiff wrote, "If you have overpaid me, I wish to pay you what I owe, just as I know you would wish to pay me if anything is owing to me in our business relationship from April 1, 1968 to April 23, 1972 " (emphasis added). After apparently not receiving a response from defendant, plaintiff again demanded a final accounting, in a letter dated May 15, 1972.

Several months after this last communication, on or about August 9, 1972, plaintiff served his first summons and complaint upon defendants Weintraub and WW National Telephone Advertising, Inc. On or about November 13, 1976, plaintiff served a fourth amended complaint, applicable to the instant appeal. This final complaint asserted three causes of action. First, plaintiff alleged breach of contract against Weintraub and the five corporate defendants of the April 1968 agreement, commencing on or about April 23, 1972. Second and third, plaintiff alleged fraud and conspiracy to defraud, respectively, for false and fraudulent misrepresentations made to plaintiff that defendants had terminated...