Opinion
June 7, 1928.
John T. Fenlon, for the plaintiffs.
O'Brien, Boardman, Fox, Memhard Early [ Maurice Wahl of counsel], for the defendant Book Building Binder Corporation.
The amended complaint alleges that defendant Rochester Self Binder Company, Inc., and its officers, Sanders and Foulkes, employed the plaintiffs to procure capital for the corporation; that plaintiffs did procure Paul Plunkett Company, Inc., which entered into a written agreement to furnish $110,000 in cash capital; that the aforesaid agreement was actually carried out; that the moving defendant took over all the assets and liabilities of the Rochester Self Binder Company, Inc., one of which was its obligation to pay plaintiffs the fair and reasonable value of their services in obtaining the necessary capital, and that during the pendency of the negotiations with Paul Plunkett Company, Inc., the Rochester Self Binder Company, Inc., and Sanders had agreed to pay plaintiffs fair and reasonable compensation for their services. Although the pleading under consideration can hardly be said to have been artistically drawn, nevertheless, indulging every intendment in favor of the pleader, it seems to state a good cause of action based on the theory that the moving defendant received the assets and expressly assumed the liabilities of the Rochester Self Binder Company, Inc., including the latter's obligation to pay plaintiffs for their services. (See Hydraulic Power Co. v. Pettebone-Cataract P. Co., 198 A.D. 644, 654.) The argument that the agreement between Paul Plunkett Company, Inc., on the one hand, and Sanders and Foulkes on the other, contains no provision for the assumption by the Book Building Binder Corporation of any liability for plaintiffs' services apparently overlooks the fact that the complaint nowhere alleges that said agreement embodied any such assumption. Plaintiffs aver, both in paragraph 3 and in paragraph 5, that such an assumption of liabilities did take place, but they make no claim that this was provided for or accomplished by the agreement annexed to the complaint. For the reasons indicated the amended complaint appears to be sufficient and the motion to dismiss is accordingly denied. Order signed.