270 A.D. 766 | N.Y. App. Div. | 1946
In an action to recover damages for ,the breach of an alleged agreement for the purchase and sale of two Diesel engines, order denying defendant’s motion, under rule 113 of the Rules of Civil Practice, to dismiss the complaint, reversed on the law and the facts, with $10 costs and disbursements, and the motion granted, with $10 costs. „No relevant question of fact exists. A contract including the alleged oral terms may not be considered in view of the Statute of Frauds, which is now invoked by the appellant, even though not set out in its answer. “Technical defects in the pleading * * * are not available” to a party on an application under rule 113. The facts in the affidavits and record control; and if pleadings Can be amended to include such facts or defenses they must be considered. The incompleteness of the pleading of the defenses herein (Statute of Frauds, for example)-is no bar to success now. (Curry v. Mackenzie, 239 N. Y. 267, 272.) Apart from this phase, the telegram confines itself to “ letter Jan. 9 ”, which excludes oral elements, and it introduces new elements such as, " fob oars ”, etc. The formal order is tied in to the telegram by the statement: “ Our formal purchase order will follow by mail ”, so that the formal order relates to “ letter Jan. 9”. The formal order also introduces new terms; hence, neither the telegram nor the formal order is an acceptance and no contract in writing exists between the parties. Lewis, P. J., Hagarty, Carswell, Adel and Nolan, JJ., concur.