Use this button to switch between dark and light mode.

Experience a New Era in Legal Research with Free Access to Lexis+

Simon v. Electrospace Corp.

Simon v. Electrospace Corp.

Court of Appeals of New York

January 4, 1971, Argued ; February 17, 1971, Decided

No Number in Original

Opinion

 [*139]  [**22]  [***227]    Plaintiff, a finder of business opportunities, has recovered judgment against defendant for commissions, including interest and costs, for $ 920,967.25. Following a full trial, two limited issue trials, and two appeals to the Appellate Division, defendant appeals directly from the described final judgment rendered [****7]  in the trial court, thus bringing up for review only the questions determined by the two intermediate orders of the Appellate Division ( CPLR 5501, subd. [b]; 5601, subd. [d]). The orders, however, embrace the two principal issues in the case, liability and measure of damages.

The issue of liability is whether plaintiff earned a commission by reason of the corporate merger two and a half years after he was retained by defendant's predecessor under a written agreement. Defendant contends that the retainer was abandoned, that the merger was not the kind embraced by the retainer, and, in any event, plaintiff was not responsible for the transaction. If there was evidence to support the findings of fact in plaintiff's favor affirmed by the Appellate Division, albeit by a divided court, there may be no further review of the facts, but only of the legal issues raised. Since the findings are supported and no rules of law were applied improperly, the issue of liability must be resolved in favor of plaintiff. As to damages, that is another matter. The quantum of recovery is egregiously out of line under rules determining damages in breach of contract. Consequently, there must be a [****8]  redetermination of damages, but on a formula, the elements of which are supplied by the record, thus requiring no more than a simple arithmetic computation.

Critical to liability are the subordinate issues; namely, whether the merger of two corporations was within the scope of the retainer, and whether plaintiff was responsible for the merger within the terms of the retainer.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

28 N.Y.2d 136 *; 269 N.E.2d 21 **; 320 N.Y.S.2d 225 ***; 1971 N.Y. LEXIS 1553 ****

Harold Simon, Respondent, v. Electrospace Corporation, Appellant

Prior History:  [****1]   Simon v. Electrospace Corp., 34 A D 2d 528, 32 A D 2d 62, modified.

Appeal from an amended final judgment of the Supreme Court, entered May 22, 1970, in New York County, rendered upon a decision of said court (Nathaniel T. Helman, J.), following orders of the Appellate Division of the Supreme Court in the First Judicial Department which respectively (1) modified, on the law and the facts, and, as modified, affirmed a judgment in favor of plaintiff entered upon a decision of the Supreme Court at a Trial Term (Abraham N. Geller, J.), the modification consisting of ordering a new trial limited solely to the issue of damages, and (2) on the law, (a) reversed the judgment of the Supreme Court (Nathaniel T. Helman, J.), entered in New York County, upon the first remand, (b) vacated the judgment, and (c) remanded the matter for taking of further testimony and findings as to the value of the stock in question.

Disposition: Judgment accordingly.

CORE TERMS

merger, stock, shares, damages, trial court, merged, retainer, stockholders, borrowed, retainer agreement, new shares, net worth, constituent, convertible, purchasing, surviving, meetings

Business & Corporate Compliance, Contracts Law, Contract Conditions & Provisions, Conditions Precedent, Mergers & Acquisitions Law, General Business Considerations, Brokers & Finders Claims, Contracts Law, Types of Damages, Compensatory Damages, General Overview, Breach