Nowikas v. Cohen

1060 Carswell, Adel, Sneed and Wenzel, JJ., concur; Nolan, P. J., dissents and votes to affirm, being of opinion that the complaint sufficiently states a cause of action for damages for breach of an express contract between appellant and respondent. The contract pleaded may be unenforeible, as involving a breach by respondent of his obligation of undivided loyalty to his employer. (Cf. Greenfield v. Bausch, 238 App. Div. 52, and Myerberg v. Webster, 269 App. Div. 65.) That question, however, should not be decided on the pleadings, since it may be established on trial that the contract pleaded was valid and enforeible, at least in part. (Cf. Gracie v. Stevens, 56 App. Div. 203, affd. 171 N. Y. 658, and Knauss v. Krueger Brewing Co., 142 N. Y. 70.)