The opinion of the court was delivered by: BARTELS
Plaintiff Karlin brings this action for a finder's fee, in which he claims that the defendant, Warren E. Avis (Avis), president of defendant Avis Industrial Corp. (Industrial), engaged Karlin to find a purchaser for Avis' shares of stock in Industrial and that Industrial, through its president and vice-president, engaged Karlin to find a buyer for shares of its treasury stock. Karlin further claims that through his efforts an agreement of sale (purchase agreement) was signed on January 16, 1969, between Avis and Industrial as sellers and Ultra Dynamics Corporation (Ultra Dynamics) as buyer, whereby Ultra Dynamics agreed to purchase the above shares of Industrial stock from the defendants.
Karlin moves for summary judgment pursuant to Rule 56(b), F.R. Civ. P., 28 U.S.C., and both Avis and Industrial counter-move for judgment on the pleadings under Rule 12(c), F.R. Civ. P., 28 U.S.C., or, in the alternative, for summary judgment pursuant to Rule 56(b), F.R. Civ. P., 28 U.S.C. At issue is whether any agreement or contract between the parties for a finder's fee or compensation was reduced to a memorandum or writing subscribed by the defendants, in compliance with the New York Statute of Frauds, General Obligations Law, McKinney's Consol. Laws, c. 24-A, § 5-701(10).
From the pleadings, exhibits and affidavits of the parties, the pertinent undisputed facts are as follows:
Conversations about the possible sale of the stock of Industrial to a buyer represented by Karlin, were begun between Karlin and one Sidney McNiece, an officer of Industrial in September of 1968. On October 16, 1968, Karlin wrote a letter to Thomas Ault (Ault), president of Industrial, who was conducting negotiations for Avis, in which Karlin discussed the proposal of one Richard Weisinger, attorney for the prospective buyer, and in which Karlin wrote:
"I wish to advise you that Mr. Weisinger has agreed that if a contract is consummated, as buyers, he will pay one half of the applicable finder's fee; the other half to be paid by the seller. This finder's fee would accrue to me on the basis of the 5-4-3-2-1 formula or in equivalent Avis stock at market value on date of contract."
On October 24, 1968, Weisinger wrote a memorandum to Karlin, in which he stated:
"I agree that any deal which may be resolved for the above acquisition will include a 5% finder's fee of which 1/2 (one half) will be paid to Irving Karlin by the buyer and the other 1/2 (one half) by the Seller."
On November 16, 1968, Karlin wrote a letter to McNiece, mentioning the proposed terms of the sale and stating:
"In my letter to Mr. Ault, I confirmed the foregoing and indicated Mr. Weisinger's agreement to pay one half of the finder's fee, without disturbing the price of $4,000,000. targeted. In our personal meetings and phone conversations you made it clear that you were acting solely in Mr. Avis's personal interest without any claims for finders fees. I presume Mr. Ault was acting similarly in his participation at the meetings."
Karlin also enclosed with this letter a proposed letter of intent, dated October 28, 1968, from Weisinger to Avis, setting forth in four numbered paragraphs the proposed terms of the sale, and also setting forth in a paragraph numbered "(5)" the following:
"The parties agree that the finder's fee payable to Irving P. Karlin will be paid 50% by the seller and 50% by the buyer."
Space was provided for Avis' signature at the bottom of this proposed letter of intent but Avis never signed it.
On January 16, 1969, Avis signed an acceptance of a letter agreement addressed to him by Ultra Dynamics providing for the sale of his stock to Ultra Dynamics, which included the following paragraphs:
"(c) You have not dealt with any broker or finder in connection with the sale of the Shares, other ...