Belfert v. Peoples Planning Corp. of America

11 A.D.2d 760 | N.Y. App. Div. | 1960

Order dated January 18, 1960, granting motion of defendant to strike out supplemental reply and granting judgment dismissing the first cause of action, affirmed, with $20 costs and disbursements to the respondent. The oral options exercisable by the appellant alone constitute the contract one not performable within a year. (Harris v. Home Ind. Go., 6 A D 2d 861; Supplee v. Hallanan, 14 Mise 2d 658, affd. 8 A D 2d 708, motion for leave to appeal denied 8 A D 2d 794, and 7 N Y 2d 705.) A contract not performable within a year is unenforcible unless in writing and signed by the party to be charged. Concur — Botein, P. J., Rabin, McNally and Bastow, JJ.; Valente, J., diss.ents in the following memorandum as follows: I would reverse the order dismissing the first cause of action as barred by the Statute of Frauds because, in my opinion, there were sufficient facts presented by plaintiff to entitle him to a trial of the issue of the existence of an enforeible employment agreement. There are triable issues not only as to the nature of plaintiff’s contract, but also as to whether the writings in the case at bar, taken in connection with oral testimony, which may be offered, can satisfy the Statute of Frauds. (See Crabtree v. Elizabeth Arden Sales Corp., 305 N. Y. 48.) [22 Mise 2d 753.]