Sayres v. George Nowland Corp. , 255 A.D. 858 ( 1938 )

Plaintiff sued on a written contract providing for his employment by defendant corporation, the purchase of stock from the individual defendant and an agreement to repurchase by defendants such stock as he then owned at the termination of the employment contract. The defendants moved to dismiss the first cause of action in the complaint. Order denying defendants’ motion affirmed, with ten dollars costs and disbursements. Defendants may serve an answer within ten days from the entry of the order hereon. The contract involved in the action for employment of plaintiff, the purchase of stock by him with an agreement by defendants to repurchase such stock as he then owned when the employment terminated, together with other provisions in respect to the relations and duties of the parties — was entire and complete and based on consideration and on mutual obligation. The sixteenth paragraph is not separable from the other provisions of the contract, and, therefore, is not lacking in mutuality in view of the covenants running through the entire contract. Viewed in a narrow light, the provisions for repurchase were at least an option to plaintiff, based on consideration, to sell his stock to defendants at the termination of the employment. The complaint, liberally construed on this motion to dismiss, is sufficient in its allegations of due performance on the part of plaintiff. It furnishes the basis of proof to be offered on the trial. Likewise, the question of the legal right of the corporate defendant to contract to buy its own stock must await proof on the trial. The claimed illegality is a matter of defense. Lazansky, P. J., Carswell, Davis, Adel and Close, JJ., concur.