Opinion
December 17, 1951.
On April 26, 1950, plaintiff and the corporate defendant contracted in writing that plaintiff work for the corporate defendant as a salesman of its manufactured goods from May 2, 1950, to April 30, 1952, at a stated compensation. The agreement provided that: "In the event of our insolvency, bankruptcy, dissolution, liquidation or cessation of business for any reason whatsoever, this agreement shall immediately terminate and become null and void." On January 12, 1951, the corporate defendant notified plaintiff in writing that it would cease doing business as of January 31, 1951, and that his services were no longer required. This action is to recover for past due commissions and salary, and for damages for wrongful discharge. Defendants moved for summary judgment on the ground that the corporate defendant, which made the employment contract with plaintiff, ceased doing business on January 31, 1951, as such corporation. The motion was granted to the extent of dismissing that part of the sole cause of action stated in the complaint having to do with the wrongful discharge. Thereafter plaintiff moved to renew defendants' motion for summary judgment, which motion was denied. Plaintiff appeals from both orders. Order granting defendants' motion for summary judgment reversed on the law and the facts, with $10 costs and disbursements, and motion denied, without costs. Appeal from order denying plaintiff's motion to renew defendants' motion for summary judgment dismissed, without costs. The corporate defendant was owned and controlled solely by the individual defendant. In our opinion, the phrase "cessation of business" should be interpreted to mean the complete cessation by the person controlling the corporate defendant of his interest in the blouse business then conducted, and that the continuance of the same blouse business by such person or by his nominee in another legal form does not constitute the "cessation of business" within the meaning of the contract. Although in this action at law the individual defendant may not be held liable for breach of this employment contract made solely with the corporate defendant, partial summary judgment may not be granted in his favor as to part of the one cause of action stated in the complaint. ( Luotto v. Field, 294 N.Y. 460.) Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.