The appeal is from an order denying a motion to dismiss the complaint. The complaint alleges that the plaintiff sold his business to Power Bilt Corporation, a subsidiary of defendant, and then entered into a contract of employment with Power Bilt. Defendant guaranteed payment of notes which were a part of the purchase price, and also *783guaranteed payment of the salary provided for in the contract. As regards the latter guarantee, it appears that it was limited and only applied when Power Bilt, while solvent, changed its location or terminated its business by dissolution, merger, sale of stock or the like, or is caused to do so by defendant. Power Bilt during the term of the contract filed a petition in bankruptcy and was adjudicated a bankrupt. The complaint further alleges that defendant failed to use its best efforts in the management and control of Power Bilt. Although there is but one cause of action, it would appear that plaintiff is suing both for a breach of the contract of guarantee and for a negligent injury to his property rights.
There can be very little dispute but that the complaint does not allege any breach of the terms of the contract. Nor can there be any question that defendant did not owe plaintiff any duty to exercise control over Power Bilt’s management or affairs, nor to use care in whatever control it might have exercised. So on neither theory is a cause of action stated.
As I understand the majority’s position, it is based on the proposition that on the facts plaintiff might have stated a cause of action. If the defendant in fact so operated the affairs of Power Bilt as to bring about its insolvency and did this for the purpose of avoiding and rendering nugatory plaintiff’s contract with Power Bilt, this would be a cause of action. While it is indisputable that both the sense and spirit of the Civil Practice Law and Rules mandate an attention to the sense and proper intendment of a pleading rather than its precise wording, to the end that, if it advises the court of what the plaintiff is seeking and the opposing party of what he will have to meet, it suffices (Foley v. D’Agostino, 21 A D 2d 60), it is submitted that this complaint meets neither test. The facts that plaintiff would have to prove are far more onerous than what he has alleged, or what he may know can be established.
When the plaintiff goes to trial he can expect that if he proves his allegations he will be entitled to a verdict. And the trial court will perforce be required to so rule. Is anything gained by setting the record straight at that stage of the proceedings rather than at the outset? It is undoubtedly good to discourage time-consuming and technical motions addressed to pleadings, but not at the expense of either substantive rights or when the form of the pleading attacked will inevitably result in more burdensome applications to the court at a later stage of the proceedings.
1 would vote to reverse the order, and dismiss the complaint with leave to plead over if so advised.
Botein, P. J., Breitel, Yalente and Eager, JJ., concur in Memorandum by the court; Steuer, J., dissents and votes to reverse, in opinion.
Order, entered on November 14, 1963, affirmed, with $20 costs and disbursements to the respondent.