Griffin v. Bookman — 39 N.Y.2d 57

Majority

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Hayden Griffin, Appellant, v Leo Bookman et al., Respondents, et al., Defendants.

Argued February 12, 1976;

decided March 23, 1976

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Clifford Forster and Donald Aslan for appellant.

The termination agreement is enforceable as a matter of law. (Knapp v McFarland, 344 F Supp 601 , 457 F2d 881 , 409 US 850 ; Heller v Kalisch, 141 App Div 205 ; Plattenburg v Briggs, 166 App Div 326 ; Metro-Goldwyn-Mayer v Scheider, 75 Misc 2d 418 , 43 AD2d 922 ; Stulsaft v Mercer Tube & Mfg. Co., 288 NY 255 ; Marks v Cowdin, 226 NY 138 ; Penberthy Electromelt Co. v Rexall Drug & Chem. Co., 31 AD2d 662 ; Cohen & Sons v Lurie Woolen Co., 232 NY 112 ; May Metropolitan Corp. v May Oil Burner Corp., 290 NY 260 ; Consolidated Blasting Corp. v Colabella Bros., 10 Misc 2d 913 .)

Michael Miller for respondents.

I. The termination memorandum is a corporate obligation. (West, Weir & Bartel v Carter Paint Co., 25 NY2d 535 ; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456 ; Heller & Henretig v 3620-168th St., 302 NY 326 ; O’Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50 , 687; Silverman v Alpart, 282 App Div 631 ; Corhill Corp. v S. D. Plants, Inc., 9 NY2d 595 ; Muzak Corp. v Hotel Taft Corp., 1 NY2d 42 ; General Elec. Co. v Hatzel & Buehler, 19 AD2d 40 , 14 NY2d 639 ; Aron v Gillman, 309 NY 157 ; Wood v Lucy, Lady Duff-Gordon, 222 NY 88 .) II. If the court were to construe the termination memorandum as executed by the individual defendants in their individual capacities, the only obligation indicated therein as a guarantee for which the termination memorandum is not a sufficient writing to satisfy the requirement of the Statute of Frauds. (Ollendorf Watch Co. v Pink, 279 NY 32 ; Kings County Sav. Bank v Fulton Sav. Bank Kings County, 268 App Div 452 ; Pink v

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Investors Syndicate Tit. & Guar. Co., 246 App Div 172 , 273 NY 483 ; Fischer v Mahland, 191 App Div 209 ; Klinke v Samuels, 240 App Div 1008 , 241 App Div 621 , 264 NY 144 ; Marburt Holding Corp. v Picto Corp., 5 AD2d 617 , 6 AD2d 791 ; Roeder v Judovitz, 30 AD2d 770 ; General Phoenix Corp. v Cabot, 300 NY 87 ; Intercontinental Planning v Daystrom, Inc., 24 NY2d 372 ; Dunscombe v Crocker-Wheeler Elec. Mfg. Co., 232 App Div 137 .) III. The capacity of the signatures on the termination memorandum is irrelevant.

Memorandum. The order of the Appellate Division should be affirmed. Defendants’ motion to dismiss the complaint under CPLR 3211 (subd [a], par 5) on the ground that the cause of action may not be maintained because of the Statute of Frauds was properly granted—the letter of January 31, 1963, the only paper-writing submitted on the motion, does not evidence an agreement enforceable against the individual defendants, whatever may be the liability of the corporation to plaintiff, an issue on which we express no view.

When plaintiff joined the employ of HBS, Ltd., the corporate defendant, an agency offering services to arrange engagements and contracts for artists, performers and writers, he brought with him a number of his personal clients. Certain provisions with respect to such clients and the division of commissions on their contracts in the event plaintiff left the agency were set forth in a letter dated January 31, 1963:

"During the term of your employment with HBS, LTD. the following will be the understanding.

"1) If you leave HBS, LTD. for any reason whatsoever, any clients which you have signed to HBS, LTD. during your term of employment may have the right to an immediate release from HBS, LTD. if they wish same.

"2) Any commissions accruing from contracts negotiated for your clients while you are an employee of HBS, LTD. will go to HBS, LTD., but the extent to which HBS, LTD. will share with you will be negotiated at the time of your departure, it being understood HBS, LTD. will receive a minimum of 5%.

"3) If any deals are in the process of being negotiated for your clients, but which have not been completed at the time of your leaving HBS, LTD., there will be an arrangement made between you and HBS, LTD. at the time to determine the disposition of commissions accuring [sic]from such deals.” Plaintiff left the agency in 1972 and subsequently instituted

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the present action for alleged breach of the termination agreement. We are concerned on the present appeal only with the claims asserted against the individual defendants, each of whom was a corporate officer.

In support of the motion to dismiss it is urged that since the only obligation of the individual defendants would be as guarantors of the corporate obligation to share its commissions with plaintiff, there is no writing containing an enforceable obligation of guarantee. It is argued that the letter of January 31 is insufficient in two aspects. First, it contains no language of guarantee. Second, it omits a material term of the obligation to be guaranteed. We agree with this second contention. The January 31 letter does not set forth all the material terms of the corporate obligation, and a fortiori of an individual guarantee thereof.

It was expressly contemplated that if plaintiff left the agency the division of all termination commissions would be negotiated between the parties at that time. Under paragraph (2) the parties were to agree as to plaintiff’s share of the commissions on contracts which had been negotiated for his clients—in the range from 0% to 50% (expressed as 5% which would be one half of the regular 10% commission). Under paragraph (3) the parties were again to agree on plaintiff’s share of the commissions received on contracts which were still in the process of negotiation for his clients—this time in the range from 0% to 100%.

We agree with the majority at the Appellate Division that, standing alone, the letter fails to include a material element of the contract—the extent of plaintiff’s right to the commissions for which he now sues. At best there is but an agreement to negotiate at some future date. The void left by this omission is not one which the court may appropriately fill, even in the context of this employment relationship. Criteria are unavailable as to fraction or amount or as to the period over which payment shall continue to be made. It would be different even had the minimum of one half been fixed in plaintiff’s favor. Short of written proof of a negotiated division there is here no obligation which the courts may enforce against defendants as guarantors.

Even if the complaint be read as containing an allegation that a 50% division of commissions was in fact separately negotiated pursuant to the January 31 letter, the fatal insufficiency is that the alleged negotiations for any such division

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concededly were oral only, never having been reduced to any writing. The Statute of Frauds precludes adding any alleged oral understanding to the letter of January 31, 1963 to make a complete, enforceable contract of guarantee (General Obligations Law, § 5-701, subd 2).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.

Cases cited

Metro-Goldwyn-Mayer Inc. v. Scheider 75 Misc 2d 418 N.Y. Sup. Ct. 1972-05-12 p. 58
Stulsaft v. Mercer Tube & Manufacturing Co. 288 NY 255 N.Y. 1942-06-04 p. 58
Marks v. Cowdin 226 NY 138 N.Y. 1919-04-08 p. 58
Penberthy Electromelt Co. v. Rexall Drug & Chemical Co. 31 AD2d 662 N.Y. App. Div. 1968-12-09 p. 58
Heyman Cohen & Sons, Inc. v. M. Lurie Woolen Co. 232 NY 112 N.Y. 1921-11-22 p. 58
May Metropolitan Corp. v. May Oil Burner Corp. 290 NY 260 N.Y. 1943-04-15 p. 58
Consolidated Blasting Corp. v. Colabella Bros. 10 Misc 2d 913 N.Y. Sup. Ct. 1957-06-21 p. 58
West, Weir & Bartel, Inc. v. Mary Carter Paint Co. 25 NY2d 535 N.Y. 1969-12-11 p. 58
Bethlehem Steel Co. v. Turner Construction Co. 2 NY2d 456 N.Y. 1957-03-08 p. 58
Heller & Henretig, Inc. v. 3620-168th Street, Inc. 302 NY 326 N.Y. 1951-04-12 p. 58
M. O'Neil Supply Co. v. Petroleum Heat & Power Co. 280 NY 50 N.Y. 1939-02-28 at 687 p. 58
Corhill Corp. v. S. D. Plants, Inc. 9 NY2d 595 N.Y. 1961-05-26 p. 58
Muzak Corp. v. Hotel Taft Corp. 1 NY2d 42 N.Y. 1956-03-22 p. 58
General Electric Co. v. Hatzel & Buehler, Inc. 19 AD2d 40 N.Y. App. Div. 1963-06-11 p. 58
General Electric Co. v. Hatzel & Buehler, Inc. 14 NY2d 639 N.Y. 1964-03-26 p. 58
Aron v. Gillman 309 NY 157 N.Y. 1955-07-08 p. 58
Wood v. Duff-Gordon 222 NY 88 N.Y. 1917-12-04 p. 58
Ollendorff Watch Co. v. Pink 279 NY 32 N.Y. 1938-11-29 p. 58
Pink v. Investors Syndicate Title & Guaranty Co. 273 NY 483 N.Y. 1936-12-31 p. 59
Klinke v. Samuels 264 NY 144 N.Y. 1934-04-17 p. 59
Marburt Holding Corp. v. Picto Corp. 5 AD2d 617 N.Y. App. Div. 1958-05-13 p. 59
General Phoenix Corp. v. Cabot 300 NY 87 N.Y. 1949-12-02 p. 59
Intercontinental Planning, Ltd. v. Daystrom Inc. 24 NY2d 372 N.Y. 1969-04-10 p. 59