n Reitzenstein v. Tomlinson, 249 N.Y. 60, 64 (1928) (holding that promise to pay plaintiff "an appropriate percentage" of defendant's gains was too indefinite to be enforceable); Varney v. Ditmars, 217 N.Y. 223 (page numbers unavailable); Glanzer v. Keilin Bloom LLC, 722 N.Y.S.2d 540, 541 (1st Dep't 2001) (holding that investment bank's alleged promise to pay employees an "equity interest in the firm" was "too indefinite to permit enforcement"); Freedman v. Pearlman, 706 N.Y.S.2d 405, 408 (1st Dep't 2000) (upholding lower court's determination that agreement "to provide 'fair compensation' and to 'equitably' divide the draw w[as] too indefinite to be enforced"); Bluemner v. Garvin, 104 N.Y.S. 1009, 120 A.D. 29, 30-34 (1st Dep't 1907) (holding that defendant's promise to "fairly share with plaintiff the commissions received by defendant" was too "vague and indefinite to constitute a valid contract" where there was nothing in the promise that would define what a fair division would be);Mackintosh v. Thompson, 68 N.Y.S. 492, 58 A.D. 25, 26-30 (1st Dep't 1901) (holding that employer's promise of "a reasonable interest" in the profits, in addition to employee's salary, was not an enforceable agreement). As the New York Court of Appeals has explained:.
The conversation relied upon by plaintiff does not rise to the dignity of a contract and is too vague and indefinite to be enforced. Mackintosh v. Thompson, 58 App. Div. 25, 68 N.Y.S. 492, 494. It appears, therefore, that defendant's motion should be granted and the cause dismissed as to the second cause of action.
Such agreement is unenforceable, it being void for uncertainty and lack of mutuality. Burks v. Stam, 65 Mo. App. 455; Mackintosh v. Thompson, 58 App. Div. 25, 68 N.Y.S. 492; Fairplay School Twp. v. O'Neill, 27 Ind. 95, 26 N.E. 686; Butler v. Kammerer, 218 Pa. 242, 67 A. 332. Since it was void the directors had no right to recognize it by giving away the corporate funds. Directors, as a matter of law, may be compelled to restore to the corporation moneys they have expended on invalid claims.
The courts in this state, in reliance upon and approval of the rule as stated in the United Press case, have decided many cases involving the same rule. Thus, in Mackintosh v. Thompson ( 58 App. Div. 25) and again in Mackintosh v. Kimball ( 101 App. Div. 494) the plaintiff sought to recover compensation in addition to a stated salary which he had received and which additional amount rested upon a claim by him that while he was employed by the defendants he informed them that he intended to leave their employ unless he was given an increase in salary, and that one of the defendants said to him that they would make it worth his while if he would stay on, and would increase his salary, and that his idea was to give him an interest in the profits on certain buildings that they were then erecting. The plaintiff further alleges that he asked what would be the amount of the increase and was told, "You can depend upon me; I will see that you get a satisfactory amount."
" In Petze v. Morse Dry Dock Repair Co. ( 125 App. Div. 267, very recently affirmed by the Court of Appeals, 195 N.Y. 584) we held that the contract was incomplete because a part of the compensation which was indivisible was by the express terms of the contract made subject to further agreement, and that the plaintiff could not recover on an incomplete contract on the theory that some of its terms had been agreed upon. In Mackintosh v. Thompson ( 58 App. Div. 25) the action was to recover compensation above a stated salary, which rested upon the statement of the employer, "You can rely upon me; I will see that it is all right," and the court held that such "vague and indefinite" statement did not make a binding contract. On the second appeal ( sub nom. Mackintosh v. Kimball, 101 App. Div. 494) the court said: "The only distinction between what the plaintiff testified to in the former action and his testimony upon this trial is that he now says that the defendants promised that the increase would be satisfactory to the plaintiff; that when the plaintiff asked Kimball how this was to be arranged so as to be satisfactory to him, Kimball said, `You can depend upon me, I will see that you get a satisfactory amount,' and that the plaintiff said that that was all right, that he would stay on and see the work through.
Upon the first action the complaint was dismissed, which upon an appeal to this court was affirmed. ( 58 App. Div. 25.) The plaintiff having testified as to the conversation with one of the defendants upon which he based his claim that a contract was made for compensation in addition to that which he had before received, this court said; "The most that can be predicated upon such a conversation is that Mr. Kimball was favorably disposed to the consideration of the question of increased salary. But that no definite agreement of any kind was made for an increase of salary for any definite period or any stated amount is evidenced from the plaintiff's own statement at the trial, that he was to get a share in the profits of the buildings in addition to his regular salary.