Zimmerman v. National Dairy Products Corporation

• Decision Date: 05 December 1939
• Citation: 30 F. Supp. 438
• Parties: ZIMMERMAN v. NATIONAL DAIRY PRODUCTS CORPORATION.
• Court: U.S. District Court — Southern District of New York

30 F. Supp. 438

ZIMMERMAN v. NATIONAL DAIRY PRODUCTS CORPORATION.

District Court, S. D. New York.

December 5, 1939.

Samuel W. Cracowaner, of New York City (Samuel Turchin, of New York City, of counsel), for plaintiff.

Katz & Sommerich, of New York City (Otto C. Sommerich and Raymond T. Heilpern, both of New York City, of counsel), for defendant.

CONGER, District Judge.

This is a motion to dismiss the complaint of the plaintiff because it fails to state facts sufficient to constitute a cause of action.

The plaintiff, a real estate broker, was engaged by the New York Central Railroad Company to solicit prospective tenants for its building at 230 Park Avenue, New York City. He claims that he interested the defendant in the building, and that the defendant later entered into an agreement with the railroad company to lease space in the building.

His complaint in this action alleges that the defendant:

"VI. * * * did represent to the New York Central Railroad Company as Landlord that the plaintiff was not involved as broker in any way, which representations were false."

"VII: That because of the false representations of the defendant to the New York Central Railroad Company, that the plaintiff was not involved as a broker in any way, the plaintiff was prevented from collecting his lawful commissions as broker from the New York Central Railroad Company * * *".

It is difficult to determine upon just what grounds the plaintiff is suing. Obviously the suit is not in contract for brokerage commissions due from defendant, for plaintiff has this cause of action against the landlord, and not defendant. If the action is in fraud, the complaint is defective under Rule 9(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which reads:

"In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally."

The complaint is silent as to fraud, or any facts which would constitute fraud; malice, intent or wrongful inducement is not alleged against the defendant, to induce the New York Central Railroad Company to breach its alleged contract with plaintiff. The complaint is also silent as to full performance on the part of the plaintiff in its alleged contract with the New York Central Railroad Company, a necessary prerequisite, before a recovery for the fraudulent breaching of that contract can be allowed.

The plaintiff, in substantiating his cause of action places great stress on the cases of Lumley v. Gye, 75 E.C.L. 216, 1 Eng.Hul.Cas. 706; and Hornstein v. Podwitz, 254 N.Y. 443, 173 N.E. 674, 84 A.L. R. 1. These cases are distinguishable from the...