TIMBERS, District Judge.[fn*] [fn*] Chief Judge of the District of Connecticut, sitting by designation.
Defendant having filed a motion on December 4, 1967 to dismiss the complaint in the instant action, which was commenced on August 30, 1967, "on the ground that the institution and prosecution by plaintiff against defendant, in this Court, of Civil Action 9702, which action was instituted in August, 1963, constituted an election of remedies by plaintiff which bars and precludes plaintiff from maintaining the above entitled action"; and
The Court having heard arguments of counsel at Syracuse on January 8, 1968, and having received and considered the complaint, answer, motion, affidavits, exhibits and briefs of counsel; and
The Court having construed defendant's motion to dismiss as a motion for summary judgment based upon defendant's seventh affirmative defense, Rule 56, Fed.R.Civ.P., since matters outside the pleadings have been presented to, and not excluded by, the Court, pursuant to Rule 12(b), Fed.R.Civ.P.; and
Proceedings in Ralph Hochman Company v. Fort Stanwix Mfg. Co., Civil Action No. 9702, N.D.N.Y., in which Judge Port on May 16, 1967 granted summary judgment in favor of defendant on the ground that brokerage commissions "were not earned because the purchase price was not paid."
The Court being of the opinion that defendant's motion, thus construed, should be denied, since defendant is not entitled to judgment as a matter of law for the reasons that
(1) This being a diversity action
for breach of contract, the substantive law of New York, as the forum state, must be applied in ruling upon defendant's claim based on the doctrine of election of remedies. Erie v. Tompkins,
304 U.S. 64 (1938).
(2) Plaintiff's claim in the instant action for breach of that provision of the May 23, 1961 contract pursuant to which plaintiff was to be permitted, as exclusive agent, to sell the physical assets of defendant's business prior to December 1, 1961, is not so irreconcilable with plaintiff's earlier claim in Civil Action 9702 (that it was entitled to brokerage commissions as a result of the August 12, 1961 agreement entered into between defendant and Mandell Industries) that plaintiff should be barred from maintaining the instant action by the harsh application of the doctrine of election of remedies. Smith v. Kirkpatrick,
305 N.Y. 66,
111 N.E.2d 209 (1953).
(3) Plaintiff has never disaffirmed the existence of the underlying contract of May 23, 1961; it has pursued two reconcilable claims, in
separate actions, based on separate provisions of said agreement.
it is therefore
ORDERED that defendant's motion to dismiss, construed as a motion for summary judgment based upon defendant's seventh affirmative defense alleging an election of remedies by plaintiff, be, and the same hereby is, denied.