Felner v. Mangel Stores Corp.

Sandler, J. (dissenting).

The court’s opinion sets forth almost all of the pertinent facts. Omitted, however, is one circumstance that provides decisive support for the determination reached at Special Term. The bankruptcy order of October 22, 1976, relied upon to bar the causes of action in question, was in pertinent part intended to carry out an agreement, dated October 20, 1976, for a sale of assets that had been entered into by Fabric Tree, Inc. (in which the plaintiffs were principals), Mangel Stores Corporation and the Sande Textile Corporation. Indeed, the bankruptcy order included language explicitly alluding to that agreement and stating the conclusion that its approval was "in the best interest of all parties concerned.”

However, the agreement for sale, approved and given effect in the bankruptcy order, in turn followed an agency agreement entered into by the plaintiffs and Mangel on October 11, 1976, in which the plaintiffs were designated as agents to find a purchaser for all the outstanding stock or assets of the company with provisions made for their compensation. That agreement included the following language: "this Agreement shall not be deemed to supersede, and the implementation of this Agreement shall not be a defense to the enforceability of, the Purchase and Sale Agreement dated May 4, 1976 among the parties hereto to the extent that such Purchase and Sale Agreement is otherwise valid and enforceable.”

From the sequence of agreements, it certainly appears possible, and may indeed be thought likely, that the later agreement to sell assets, enforced in the bankruptcy order, was an implementation of the agency agreement which by the terms of that agreement was not to be a defense to the enforceability of the purchase and sale agreement.

Under these circumstances, a factual issue is clearly raised *40with regard to the effect of the bankruptcy order on the first two causes of action.

Accordingly, the order appealed from denying defendant’s motion to dismiss the first and second causes of action, should be affirmed.

Birns and Fein, JJ., concur with Lane, J.; Kupferman, J. P., and Sandler, J., dissent in an opinion by Sandler, J.

Order, Supreme Court, New York County, entered on April 21, 1978, reversed, on the law, and the motion to dismiss the first and second causes of action granted.