Opinion
279 A.D. 245 108 N.Y.S.2d 919 UNITY SHEET METAL WORKS, INC., Respondent, v. THEODORE T. KNAPPEN et al., Copartners Doing Business under the Name of KNAPPEN TIPPETTS ABBETT ENGINEERING CO., Appellants, et al., Defendants. Supreme Court of New York, First Department. December 18, 1951
APPEAL from an order of the Supreme Court at Special Term (NATHAN, J.), entered December 6, 1950, in New York County, which denied a motion by defendants-appellants for an order dismissing the complaint on the ground that it failed to state a cause of action against them. The first cause of action alleged that defendant Farrell Lines, Inc., the lessee of a pier, employed the defendants-appellants, who are engineers, to draw plans for repairing the pier, to supervise the work of contractors and subcontractors, and to certify to said lessee, as its agents, the payments to be made by it to its contractor; that said engineers drew the contract for the entire repair job, pursuant to which payment was to be made by the lessee to a general contractor, which is not a party to this action, on monthly certificates issued by the engineers to the lessee; that the general contractor engaged plaintiff as a subcontractor to remove and replace the siding on the superstructure of the pier; that plaintiff, with the consent of the general contractor, performed the work under the direction of the engineers, who had knowledge of the agreement between plaintiff and the general contractor; that although the work was performed according to directions, the engineers maliciously, fraudulently, and with intent to injure plaintiff, refused to certify to the lessee that the general contractor was entitled to be paid for the work done by plaintiff, and withdrew all certificates previously given to the lessee for part of the work, with the result that the lessee has not paid the general contractor the sum of $11,800 due for the work in question; that the general contractor has not, therefore, paid that sum to plaintiff; and that by reason of such wrongful and malicious acts of the engineers, plaintiff has been injured in that sum. The second cause of action alleged a conspiracy between the lessee and the engineers to withhold certificates authorizing payment to the general contractor, with intent to injure plaintiff. A third cause of action was alleged against the lessee alone.
COUNSEL
Sidney G. Kingsley of counsel (Sylvesters&sHarris, attorneys), for appellants.
Nelson Rosenbaum for respondent.
Per Curiam.
A report to a principal by agents such as defendants-appellants, engineers employed by the lessee of a pier to act as the lessee's representatives and overseers during the performance of construction work, is privileged as against a claim by a third person such as this plaintiff, a subcontractor, having no contractual relationship with either the lessee, or the engineers (Greyhound Corp. v. Commercial Cas. Ins. Co., 259 A.D. 317).
The complaint does not allege that plaintiff complied with the terms of its own subcontract or duly performed all the terms and conditions on its part to be performed.
The complaint also fails to allege disclosed material facts as distinguished from general and conclusory allegations of wrongdoing on defendants' part. There is no allegation that appellants acted contrary to the interests of their principal. Nor is there sufficient allegation of misrepresentations of material facts to state a cause of action for fraud. (Gerdes v. Reynolds, 281 N.Y. 180.)
The second cause of action asserting a conspiracy is equally defective as it asserts no additional factual basis of liability.
The complaint seems to be based on undisclosed facts which must be disclosed before plaintiff may state any cause of action. The order appealed from should be reversed, with $20 costs and disbursements to defendants-appellants and the complaint dismissed, with leave to plaintiff if so advised to replead.
GLENNON, J. P., DORE, COHN and CALLAHAN, JJ., concur; SHIENTAG, J., dissents and votes to affirm on authority of Advance Music Corp. v. American Tobacco Co. (296 N.Y. 79).
Order reversed, with $20 costs and disbursements to appellants and the complaint dismissed, with leave to the plaintiff, if so advised, to replead. Settle order on notice.