Wells v. Dent
| Decision Date | 12 July 1957 |
| Citation | 4 A.D.2d 307,164 N.Y.S.2d 646 |
| Parties | Chandler WELLS, Plaintiff-Appellant, v. Harry M. DENT, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Raichle & Tucker, Buffalo (Frank G. Raichle and Arnold Weiss, Buffalo, of counsel), for plaintiff-appellant.
Smith, Kendall & Pedersen, Buffalo (Clarence R. Runals, Buffalo, of counsel), for defendant-respondent.
Before McCURN, P. J., and VAUGHAN, KIMBALL, WILLIAMS and GOLDMAN, JJ.
This appeal is from an order and a judgment dismissing the plaintiff's complaint upon a motion, pursuant to Rule 112 of the Rules of Civil Practice and Section 476 of the Civil Practice Act upon the ground that the causes of action set forth in the complaint are barred by the Statute of Frauds (Personal Property Law, § 31, subd. 10).
The first cause of action set forth in plaintiff's complaint is upon an express oral contract for services rendered by the plaintiff in connection with a transaction which resulted in the exchange of corporate stock of Durez Plastics & Chemicals, Inc., owned by the defendant and his associates and stock of Hooker Electro-Chemical Company. The second cause of action is based upon quantum meruit.
'Although the notice of motion for judgment on the pleadings is directed against the entire complaint, counsel in their respective briefs have regarded it as a motion aimed at each cause of action separately', and we will treat it in that light (Demuth v. Griffin, 253 App.Div. 399, 402-403, 2 N.Y.S.2d 2, 4-5).
It is alleged in the complaint that:
'between December 11, 1954, and the date of the commencement of this action, plaintiff, at the special instance and request of defendant, performed certain work, labor and services for defendant and those in association with him, which work, labor and services included acting as agent for defendant and those in association with him and finding, contacting and interesting Hooker in entering into negotiations with Durez and defendant and those in association with him, with respect to a transaction which resulted in an exchange of stock of Durez owned by defendant and his associates for stock of Hooker Consolidated.'
We accept as true not only the material allegations of fact contained in the complaint but also those contained in the bill of particulars (Green v. Doniger, 300 N.Y. 238, 241, 90 N.E.2d 56, 57). The bill of particulars in answer to a demand to state the nature of the work, labor and services alleged to have been performed states:
Subdivision 10 of Section 31 of the Personal Property Law provides in substance that an agreement not in writing is void if it 'is a contract to pay compensation for services rendered in negotiating * * * the purchase, sale, exchange * * * of a business opportunity, business * * * or an interest therein'. Subdivision 10 of Section 31 of the Personal Property Law was added by chapter 203 of the Laws of 1949 and by its plain language applies to a contract for compensation rendered in negotiating a sale, purchase, exchange, etc. For some time prior thereto our courts had recognized the difference between a contract for a broker's commission for services rendered in negotiating a sale or exchange and a contract for an 'originating commission' for services rendered in bringing a possible buyer or seller together (see Knauss v. Gottfried Krueger Brewing Co., 142 N.Y. 70, 36 N.E. 867; Seckendorff v. Halsey, Stuart & Co., 229 App.Div. 318, 241 N.Y.S. 300).
Plaintiff insists that the allegations of his complaint implemented by his bill of particulars state a cause...
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