Opinion
October 5, 1970
Defendants appeal from an order of the Supreme Court, Nassau County, dated April 2, 1970, which denied their motion to dismiss the complaint for failure to state a cause of action (CPLR 3211, subd. [a], par. 7); and plaintiff cross-appeals from the memorandum opinion insofar as it discusses measure of damages. Order affirmed and cross appeal dismissed, with one bill of $20 costs and disbursements to plaintiff, to cover both appeals. The complaint states a cause of action. The allegations of the complaint must be accepted as true on this motion to dismiss. Defendants' argument on this appeal is that the oral employment agreement was terminable at will and that therefore no cause of action for breach of contract can arise. The complaint, however, charges that the "employment [is] to be at will". The employment is a different thing from the employment contract in this case since the agreement, as alleged in the complaint, contains a provision for severance pay upon the "termination of employment". The complaint is silent about the agreement being terminable at will. We decide only that the complaint states a sufficient cause of action and any statements in the Special Term opinion, specifically concerning the measure of damages, are beyond the scope of the motion to dismiss and are of no present or future effect in this litigation. No appeal lies from a decision or opinion. Christ, P.J., Rabin, Hopkins, Brennan and Benjamin, JJ., concur.