Jennings v. Burlington Industries, Inc.

Appeals from orders of the Supreme Court at Special Term, entered March 29, 1963 in New York County, which denied motions by defendants for orders to dismiss the second amended complaint as insufficient in law.

Memorandum by the court. Orders, entered on March 29, 1963, denying motions by defendants to dismiss second amended complaint, modified on the law to the extent of granting motions by defendants Lane and Burlington Industries, Inc., to dismiss said complaint as against them, and otherwise affirmed, without costs. We affirm the determination of Special Term sustaining the first and second alleged causes of action which are pleaded against the defendant Rapid-Ameriean Corporation and sustaining the third and fourth alleged causes of action which are pleaded as against the defendant McCrory Corporation. The fifth, sixth, seventh and eighth causes of action, directed against the defendants Lane and Burlington Industries, Inc. (Burlington) are insufficient. Therein the plaintiffs have attempted to plead that said defendants did wrongfully induce and cause breaches of certain alleged contracts which obligated the defendants Rapid-Ameriean Corporation (Rapid) and McCrory Corporation (McCrory) to pay to plaintiffs, as business brokers, an agreed fee or in quantum meruit for plaintiffs’ services in connection with the purchase by Rapid and McCrory of certain shares of stock of Lerner Stores Corporation owned by defendants Lane and Burlington. The gravamen of each of the causes purports to be the alleged wrongful inducement of defendants Rapid and McCrory to refuse to pay the compensation allegedly owing by them under plaintiffs’ alleged contracts with them. But it is not alleged and does not appear how or by what means the defendants Lane and Burlington induced such refusal. There is no showing that the defendants Lane or Burlington were guilty of fraud or used other unlawful means in effecting such inducement. The alleged causes are not rendered sufficient by the allegations of a conspiracy between said defendants “to enrich themselves at plaintiffs’ expense by dividing all or part of plaintiffs’ compensation between them ” and that “ pursuant to such conspiracy, defendants Lane and Burlington caused the price for their " * * Lerner shares to be increased by an amount equal to all or part of the compensation to which plaintiffs were and are entitled”. Certainly, these defendants, as owners of the stock, were within their rights in demanding and receiving whatever price they might fix as agreeable to them.' In fact, it 'is not alleged that they asked or received more than their stock was reasonably worth. Under the circumstances, the mere allegations of a conspiracy without a showing of unlawful or wrongful acts on the part of the defendants will not create a cause of action. (See Cohn v. Goldman, 76 N. Y. 284; Wood v. Amory, 105 N. Y. 278; Cuker Inds. v. Crow Constr. Co., 6 A D 2d 415; Glaser v. Kaplan, 5 A D 2d 829.) The obligations of Rapid and MeCrory to keep the covenants of their alleged contracts were primarily their responsibility. For all that factually appears, defendants Lane and Burlington were not concerned with keeping of these obligations of Rapid and MeCrory; and there is no proper showing that these defendants violated any duty owing by them to plaintiffs. The causes as alleged are insufficient because of plaintiffs’ failure to “ recite in noneonelusory language facts establishing all the elements of a wrongful and intentional interference with [their] contractual rights (Lamb v. Cheney & Son, 227 N. Y. 418; Hornstein v. Podswitz, 254 N. Y. 443; Goodman Bros. v. Ashton, 211 App. Div. 769). As was said in a somewhat analogous situation, ‘the complaint is plentifully besprinkled with allegations that defendants did certain things “wrongfully and maliciously,” but these amount to nothing more than the pleader’s conclusions from unalleged facts.’ (De Jong v. Behrman Co., 148 App. Div. 37, 40.) ” (Benton v. Kennedy-Van Saun Mfg. & Eng. Corp., 2 A D 2d 27, 30.)