
    Samuel Friedman, Respondent, v. Roseth Corporation et al., Appellants, et al., Defendants. Samuel Friedman, Respondent,. v. Elliot A. Miller, Appellant, et al., Defendants.
   Per Curiam.

The first cause of action against, three corporate and three individual defendants charges all the defendants with breach of alleged employment contracts between plaintiff and all the defendants. The second cause of action against 'the same defendants repeats and realleges the allegations of the first cause of action with the additional allegation that the breach was maliciously committed in furtherance of a conspiracy.

The complaint is involved and. difficult to analyze, but as plaintiff may be able to prove a cause of action thereunder, the first cause of action should be permitted to stand trial. In so ruling, we are not passing upon the construction of the agreements set forth or determining their purport or effect, but are leaving to a trial on all the evidence the determination of whether there was an employment contract, its term, if any, and whether there were breaches on the part of the defendants entitling plaintiff to damages.

The second cause of action achieves no separate identity as a cause of action by virtue of the added allegation that the acts of the defendants were done maliciously and in pursuance of a conspiracy. If an employment contract and breach are established, plaintiff will prove a cause of action, regardless of malice or conspiracy, and if he fails to prove a contract and breach, he cannot, on the allegations of the complaint, make a cause of action out of malice or conspiracy. The allegations of malice and conspiracy are, therefore, inconsequential or insufficient.

The orders should be modified by granting the respective motions to dismiss the second cause of action of the complaint and as so modified affirmed, without costs.

Martin, P. J., Cohn and Peck, JJ., concur; Dore and Callahan, JJ., dissent in part and vote to dismiss the second cause of action as against the corporate defendants only.

Orders modified by granting the respective motions to dismiss the second cause of action of the complaint and as so modified affirmed, without costs. Settle orders on notice.  