Van Valkenberg v. William J. Pedrick & Co. , 271 A.D.2d 463 ( 1946 )

Per Curiam.

The complaint attempts to set forth two causes of action: the first against the corporate defendant, and the second against the individual defendant. Both proceed on a single written agreement of employment which is annexed and made a part of each cause of action. The prayer for relief is in the alternative, but there is no allegation that plaintiff is in doubt as to which defendant he is entitled to recover against.

• The employment agreement indicates on its face that it was the intention of the parties to bind the corporate and not the individual defendant. If plaintiff is proceeding in the alternative, the second cause of action fails to allege that the corporate defendant repudiated the power of the individual defendant to act for it. Such an allegation would be essential to show the existence of two alternatives (Wertheim v. Lehigh Valley Coal Co., 249 App. Div. 597).

The order entered April 21, 1945, denying the motion to dismiss the amended complaint as against defendant William J. Pedrick should be reversed, with $20 costs and disbursements to the appellant, and the motion to dismiss the amended complaint as against said defendant granted, with leave to the plaintiff to serve a further amended complaint within twenty . days after service of the order to be entered herein, on payment of said costs. The order granting the motion to resettle should he affirmed.

Townley, Glennon, Callahan and Peck, JJ., concur; Martin, P. J., dissents and votes to affirm both orders.

• Order entered April 21, 1945, denying the motion to dismiss the amended complaint as against defendant William J. Pedrick reversed* with $20.costs and disbursements to the appellant, and the motion to dismiss the amended complaint as against said defendant granted, with leave to the plaintiff to serve a further amended complaint within twenty days after service of the order, with notice of entry thereof, on payment of said costs, Order granting plaintiff’s motion to resettle the order dated April 10, 1945, unanimously affirmed.