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HAROLD SIMON v. ELECTROSPACE CORPORATION (05/01/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.41414 <http://www.versuslaw.com>; 299 N.Y.S.2d 712; 32 A.D.2d 62 May 1, 1969 HAROLD SIMON, RESPONDENT-APPELLANT,v.ELECTROSPACE CORPORATION, APPELLANT-RESPONDENT, ET AL., DEFENDANTS Cross appeals from a judgment of the Supreme Court in favor of plaintiff, entered November 4, 1968 in New York County upon a decision of the court at a Trial Term (Abraham N. Geller, J.), without a jury. Hyman L. Rutman of counsel (Lesser, Rutman & Kurtz, attorneys), for respondent-appellant. Arnold C. Stream of counsel (Netter Lewy Dowd Fox Ness & Stream, attorneys), for appellant-respondent. Nunez, J. Capozzoli and McGivern, JJ., concur with Nunez, J.; Steuer, J., dissents in opinion in which Eager, J. P., concurs. Author: Nunez


Cross appeals from a judgment of the Supreme Court in favor of plaintiff, entered November 4, 1968 in New York County upon a decision of the court at a Trial Term (Abraham N. Geller, J.), without a jury.

Nunez, J. Capozzoli and McGivern, JJ., concur with Nunez, J.; Steuer, J., dissents in opinion in which Eager, J. P., concurs.

Author: Nunez

 This appeal brings up for review a judgment in favor of plaintiff for a commission claimed to have been earned pursuant to a written agreement with defendant Electrospace Corporation by finding and presenting to that corporation a business opportunity which ultimately resulted in a merger with another corporation, Robosonics, Inc.

In October of 1964, plaintiff, an officer of a public relations firm acting as management and financial consultants, was contacted by the then president of Electrospace, William Brown, for the purpose of enlisting plaintiff's aid in finding a business deal for Electrospace. After some preliminary discussion, plaintiff sent Brown a draft of a proposed agreement which provided that "in the event you [plaintiff] can effect the sale of the stock of this corporation or similar related arrangement * * * by introduction to a party or parties with whom a transaction will be thereafter consummated, then 5% of the gross value of the transaction will be paid as a commission to you at the time of closing." This draft was reviewed by the counsel to Electrospace who suggested certain changes which were incorporated in the letter of employment dated October 14, 1964, signed and delivered by Brown of Electrospace to plaintiff without further discussion between the parties as to its terms or tenor. A copy of the agreement was forwarded to Electrospace's secretary and counsel and filed by him. This agreement added a provision that plaintiff's retainer was nonexclusive and further that: "In the event of a sale of stock, or all of the assets, or a merger as arranged by you with a corporation, company, or individual introduced by you on terms approved by the stockholders of Electrospace Corporation, a fee of 5% of the gross value of the transaction will be paid as a commission at the time of closing, in cash or stock of the company purchasing."

At the time of the agreement, the president of Electrospace gave plaintiff and his associate financial data concerning Electrospace to be presented to interested persons. Additionally, they were taken by the president on a tour of the plant and introduced to various officers, including the vice-president who later became president. During the ensuing months plaintiff and his associates approached several companies with regard to an acquisition of Electrospace and in fact arranged for the president of Electrospace to meet with representatives of three interested companies. However, plaintiff was informed that the meetings had been fruitless.

In May, 1965 one of plaintiff's associates was approached by Louis Taxin, president of Royal Business Funds Corporation, concerning the possibility of arranging a merger for Robosonics, Inc., an electronics firm in which Royal Business Funds Corporation was a principal stockholder. This inquiry was communicated to plaintiff, who thereafter met twice with Taxin, gave him financial information relative to Electrospace and subsequently arranged the initial meeting between the president of Electrospace and Taxin. This resulted in meetings in June, 1965 between the president of Electrospace and officers of Robosonics for the purpose of exploring the possibilities of a sale of Electrospace to Robosonics. Plaintiff was not present at these meetings and was later advised that nothing had been concluded.

In September of 1965 the president of Electrospace left the company and was succeeded by the vice-president, Arnold Wolf. The trial testimony of the former and the new presidents was to the effect that Wolf had been vaguely informed by Brown of the efforts to have Electrospace acquired by another company, but that Wolf had not been advised of plaintiff's employment nor of the meetings with Robosonics. Indeed, the testimony of these two officers, as well as that of the counsel and secretary to Electrospace, was rather vague. They stated that they could not recall whether they had ever met plaintiff in person and Wolf stated that although he did have dealings with two of plaintiff's associates he had not been told by them that they were associated with plaintiff. The counsel testified to receiving a copy of the revised letter agreement incorporating his suggestions and to filing it, but he insisted that he did not know that it had been signed, having made no inquiry about it. He further testified that Brown had told him of his meeting with Taxin, but maintained that he was not told of the meetings with Robosonics.

In any event, it is clear that in July, 1966, one of plaintiff's associates spoke with Wolf of Electrospace regarding the reactivation of a deal with General Dynamics Corporation that had been proposed to the former president. A meeting was arranged and this resulted in a business trip to the Electrospace plant in Puerto Rico and to another of the company's plants in upstate New York. However, plaintiff's associate was advised by Wolf in November, 1966 that the prospects for a deal were not bright. Plaintiff's associate telephoned Wolf again in January, 1967 and was again told that the prospects for a deal with General Dynamics were poor. At this time, according to the testimony of plaintiff's associate, Wolf was asked whether negotiations were being carried on with any of the prospects introduced by plaintiff, including Robosonics, and Wolf replied that he was not at liberty to discuss the matter. Wolf acknowledged that such a conversation had taken place, but maintained that plaintiff's associate had made no inquiry as to negotiations with Robosonics or any other specific deal.

The testimony at the trial discloses that it was at this very time that negotiations with Robosonics were being renewed. In December of 1966 Taxin contacted Wolf and when they met in January, 1967, Taxin talked of a possible deal with Robosonics. Wolf testified that this was the first he had heard of Robosonics and that Taxin told him of the previous unsuccessful meetings with the former president of Electrospace concerning a deal with Robosonics. Furthermore, Taxin told him that there were no finder's fees involved. Wolf also stated that plaintiff's name was not mentioned at his initial meeting with Taxin nor at later meetings which culminated in the merger. It should be noted that the merger agreement did in fact provide for a "finder's fee" to Taxin and an underwriter, although the latter claimed that the fee actually represented special consultant services. The court did not have the benefit of Taxin's testimony on this or any other subject. Although defendant submitted Taxin's affidavit in support of its motion for summary judgment the efforts of both sides to procure his presence at trial were unavailing. Yet the minority opinion cryptically states "Taxin was equal to the situation". Indeed he was!

The merger transaction itself was consummated on June 12, 1967. Under the agreement, Electrospace was merged into Robosonics, thus allowing the new entity to take advantage of Robosonics' substantial tax loss carry-over, with a change of name of Robosonics to Electrospace. Underlying the merger transaction was an exchange of securities and a public offering of debentures in the sum of $2,500,000.

Defendant argues that because the ultimate transaction between Electrospace and Robosonics was "entirely different" from that discussed at the first meetings initiated by plaintiff, plaintiff is not entitled to recover. That the details of the transaction differed from those initially discussed is immaterial. Here the agreement expressly envisaged a merger and that is just what took place -- a statutory merger at that. Thus, the instant case is quite different from Brown v. Snyder (57 App. Div. 413) where the court found that the ultimate transaction was not one contemplated by the plaintiff's narrowly drawn compensation agreement.

Nor does the mere lapse of time preclude tracing a connection between plaintiff's introduction of the business and the reactivation and final consummation of the transaction. Whether the ultimate merger transaction was contemplated by the letter agreement was for the consideration of the trier of fact, here an experienced Trial Judge, whose findings are not lightly to be upset.

Nor can it be said that plaintiff abandoned his employment. The record shows that plaintiff and his associates presented and recommended business opportunities to defendant Electrospace from the time of plaintiff's retainer to the time of the Robosonics' merger, and were in fact in touch with Wolf of Electrospace concerning another possible deal at the very time the Robosonics matter was being renewed. And even after plaintiff's introduction of Taxin had fructified into a deal, defendant suffered plaintiff's continued search of other prospects for Electrospace. Furthermore, the testimony at trial reveals that Electrospace never affirmatively terminated plaintiff's employment or expressed dissatisfaction with plaintiff's efforts on its behalf. Cases such as Sibbald v. Bethlehem Iron Co. (83 N. Y. 378) and Sternberg v. Bellanca Aircraft Corp. (259 App. Div. 538), where there was good faith termination of the agency by the principal or where the plaintiff's right to act was expressly terminated by a contingency provided for in the contract do not help defendant, for here we have neither situation. Rather, what we have here is the plaintiff engaged in a continuous and active seeking of opportunities for the defendant with its full knowledge and consent. Plaintiff was effectively excluded from further participation and Taxin arranged for himself a substantial finder's fee although both the president and counsel for Electrospace stated that he was not the finder. And, as stated by the learned Trial Judge, arguments as to whether plaintiff could have arranged the underwriting of debentures which was apparently necessary to effectuate the merger are not to the point.

If a transaction ultimately entered upon is a direct result of the disclosure of the opportunity by the finder the latter is entitled to his compensation. In this case plaintiff introduced the parties who later consummated the merger. From this point on the parties conducted their own negotiations and excluded plaintiff therefrom. The record amply supports the ruling by Trial Term that plaintiff is entitled to compensation under the terms of his written agreement and the facts as found. (See Minichiello v. Royal Business ...


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