Vassardakis v. Parish

• Decision Date: 27 January 1941
• Citation: 36 F. Supp. 1002
• Parties: VASSARDAKIS v. PARISH et al.
• Court: U.S. District Court — Southern District of New York

36 F. Supp. 1002

VASSARDAKIS v. PARISH et al.

District Court, S. D. New York.

January 27, 1941.

Russell C. MacFall, of New York City, for plaintiff.

I. Maurice Wormser and George Gordon Battle, both of New York City, for defendants.

GODDARD, District Judge.

Defendants have moved for dismissal of the "Second", "Third" and "Fourth" Counts of the plaintiff's amended complaint as failing to state a claim upon which relief can be granted; also for summary judgment upon each and all of the four counts alleged in the amended complaint. Defendants' motion to dismiss is made under Rule 12(b) (6) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which requires that such a motion shall be made before pleading if a further pleading is permitted. The defendants have filed answers to this amended complaint so this motion to dismiss must be denied. Kadylak v. O'Brien et al., D.C., 32 F.Supp. 281. However, as defendants have also moved for summary judgment it is necessary to pass upon the sufficiency of the causes of action pleaded and whether a triable issue of fact is raised.

In the "First" Count the plaintiff pleads a cause of action against the defendant Parish individually. The amended complaint alleges that on April 16, 1936 plaintiff orally agreed to work for Parish as long as Parish retained his various patents and certain foreign interests; compensation was to be fixed at the reasonable value of the services rendered; that at the request of Parish, plaintiff agreed to receive his compensation through the American Flange & Manufacturing Company, Inc. (hereinafter referred to as the corporation). Plaintiff further alleges refusal of defendant to continue to carry out the contract.

From reading the affidavits submitted it is obvious that the terms and conditions of this purported agreement between Parish and the plaintiff presents an issue for trial. Defendant asserts that because of plaintiff's contract of employment later signed with the corporation whereby plaintiff became bound to devote himself exclusively to the corporation's affairs, the oral agreement with Parish must be deemed to have been abandoned or merged into the latter agreement. This does not necessarily follow from the facts now before the court. In order to have a cancellation of the earlier agreement between Parish and plaintiff, it must be assented to by both parties. Tavs v. Wyckoff et al., 251 App.Div. 464, 466, 296 N.Y.S. 895. Plaintiff, in his opposing affidavit, states he never agreed with any one to rescind his oral agreement with Parish. Parish and the corporation are legally distinct and separate entities and plaintiff's entering into a contract with the corporation cannot be held to be an abandonment or merger with plaintiff's contract with Parish even though his contract with the corporation called for his exclusive services. Inman v. Burt Co., 124 App.Div. 73, 75, 108 N.Y.S. 210; Reilly v. Barrett, 220 N.Y. 170, 115 N.E. 453.

Plaintiff could fulfill his contract with Parish, although the corporation might have a cause of action for breach of plaintiff's contract with it. However, plaintiff in his affidavit states that he continued to perform personal services for Parish with the knowledge and approval of the corporation's officers. This allegation is clearly inconsistent with defendants' theory of abandonment or merger of the prior contract with Parish and said allegation. Parish also contends that his contract with plaintiff was rescinded by plaintiff's contract with the corporation which recited that it cancelled all former agreements between the parties thereto, but this does not necessarily follow. For, as stated above, Parish is a distinct legal person apart from the corporation and these recitals are inoperative to rescind plaintiff's contract with Parish. Likewise the contention of the defendant Parish that due to the payment of plaintiff's salary by the corporation a novation is to be presumed, is unsound. Parish was not released except pro tanto as far as plaintiff's right to compensation was in fact satisfied. Albert v. Parking Stations of New York, Inc., 235 App.Div. 682, 255 N.Y.S. 266.

I think that the affidavits submitted herein disclose triable issues of fact as to the making of the oral agreements sued on and as to the agreement by plaintiff to said contract's cancellation. Therefore, defendants' motion for summary judgment as to this count is denied.

The Second Count.

The plaintiff alleges the execution of the above-mentioned contract with the corporation. Full compliance on plaintiff's part and wrongful repudiation on the part of the corporation is alleged. Defendant corporation asserts that under the provision of the contract it had the absolute and unconditional right to terminate the employment upon the giving of ninety days' notice. It alleges that such notice was given plaintiff on July 14, 1938 by Myers, General Manager of the corporation, and that therefor plaintiff's employment was validly terminated on October 31, 1940.

Plaintiff in his opposing affidavits admits receipt of this notice of cancellation, but asserts that it was later rescinded. He claims that the notice of termination was executed by Myers, General Manager of the corporation, who was without authority to so do; that Myers told plaintiff on August 1, 1938 to disregard the notices of cancellation (prior one dated July 11, 1938); that Parish, the President of the corporation who was away at the time and had no knowledge of Myers' notice of cancellation, told plaintiff upon his return, in the presence of Myers, to disregard the notices of cancellation and consider them withdrawn. Defendants deny these assertions of the plaintiff thereby creating a triable issue of fact. It is permissible for the parties to retract these notices by subsequent oral agreement. Martin v. Peyton, 246 N.Y. 213, 218, 158 N.E. 77.

Defendants set up an affirmative defense of illegality based upon allegations that the plaintiff was hired as a legal adviser, whereas plaintiff is not an attorney. The contract of employment with the corporation which is pleaded, states that plaintiff's duties consisted of acting as legal adviser and other assigned duties. Plaintiff in his affidavit asserts that defendants knew he was not an attorney and that his duties did not entail the performance of legal duties. This issue cannot be decided upon the affidavits submitted. In view of the above, defendants are not entitled to summary judgment on this count.

The Third Count.

Plaintiff alleges that Myers, with intent of gaining control of Parish and his business interests, represented to Parish that he, Myers, possessed supernatural powers and could work miraculous cures and as a consequence could successfully guide the destinies of Parish and his financial interests; that as part of this scheme Myers fraudulently induced Parish to believe that Myers had cured Parish of certain illnesses. Plaintiff further alleges that Myers secured the confidence, trust and control of Parish and thus secured the position as General Manager of the corporation on or about January, 1936; that in his position as General Manager Myers...