Lapotin v. Gruen-Simplex Corp. — 306 N.Y. 833

Majority

p. 833

Nathan W. Lapotin, Doing Business as Pioneer Steel & Engineering Co., Respondent, v. Gruen-Simplex Corporation, Appellant.

Argued January 14, 1954;

decided March 11, 1954.

p. 835

Spencer Pinkham and Joseph J. Pettinato, Jr., for appellant.

Milton Gurwitz for respondent.

In this action by plaintiff to recover commissions allegedly due and owing from defendant under a written contract, defendant moved, pursuant to rule 106 of the Rules of Civil Practice, to dismiss the complaint for legal insufficiency. The courts below have held the complaint to be sufficient in law. By paragraph 4 of his complaint, plaintiff has appropriately restricted his right to recover commissions for orders he “ obtained for defendant * * * pursuant to the * * * written agreement ”. In our view, the complaint, limited as it is by said allegation, states a, cause of action.

The order should be affirmed, with costs, and the question certified answered in the affirmative.

Lewis, Ch. J., Conway, Desmond, Dye, Fund, Froessel and Van Voorhis, JJ., concur.

Order affirmed, etc.