*1 appear The Federal rule does While be different. remedy Compensation Longshoremen’s Act afforded employer nullify employee, is exclusive as between it does not rights against parties (Seas or alter the third workman’s Shipping 102). Co. v. Nor Sieracki, 328 does bar U. S. party recovering the third from the thus sued from workman’s employer damages required employee Ship employer’s negligence. (Green reason of the v. War ping Supp. Administration, 66 F. v. United 393, 395; Severn Supp. Supp. States, F. 68 F. States, 21; Benevento v. United * * * ” involving maritime indemnification. cases J.) (Barbara Ransom, Inc., 191 Misc. 960 (Froessel, may To the added the later case list cases above cited 691) where States F. 2d the United Rich v. United Appeals that the Second Circuit stated Court States “ despite Long provisions indemnity exists Compensation Act ”. shoremen’s and Harbor Workers’ Appellate Division should be modified opinion court herein, with the with costs this in accordance Belgian against Appellate Dow and and in Division to Line with costs. modified, affirmed, as so Transoceanic, and, Ftjld J., Lewis, Ch. Desmond, Dye, Froessel, Loughran, concur. JJ.,
Judgment accordingly. Appellant, Henry Nat Nal Service Wolf Inc., Stations, Respondents. et al., July 15, April 21, Submitted decided 1952.
334 A.
Jerome
Strauss I. The
appellant.
Frauds
is not a defense.
First
Church v.
(Trustees
Baptist
Brooklyn
Co.,
Fire Ins.
Kent v.
19 N. Y.
Warren
62
305;
560;
Kent,
Holbrook,
Chemical &
Mfg. Co.
v.
118 Y.
Voigt,
Blake
v.
586;
134 Y.N.
69; Spector
Co.,
Co. v.
Serutan
60 N. Y.
2d
270
S.
Div.
Hasbrouck,
Ward
Woert v.
App.
993;
Y.
Van
169 N.
407;
v.
& Susquehanna R.
Albany
Co.,
International
R.
538;
Ferry
Co.,
American
v.
Fidelity
Co.
Brown
v.
350;
207
Babcock,
Henie,
265
Scanlan
Div.
App.
App.
Div.
596;
v.
Rochester
Folding
Browne,
Box Co. v.
App.
Berth
Milton H. Spiero Samuel Finkelstein for respondents. The contract on is and unenforcible under relied void of Frauds. (Martocci New York 301 Y. Brewery, Greater Cohen v. Bros. Bartgis 289 Y. J. This is an action to recover an agreement
Conway, which set out in the of the following complaint. paragraph ‘‘ Fourth : That heretofore the defendants entered duly into an agreement with plaintiff, wherein and whereby promised defendants and to and that so as from long plaintiff purchased Vacuum Oil Com- Socony or Standard either or pany both, Oil Company for of gasoline through at its business defendants and accepted the defendants defend- same, equal ants would an amount the discount allowed Vacuum defendants said Socony Company Oil and both of them, Standard Oil or either or each Company purchased.” so gallon allegation each and every denying
The defendants answered,
defense,
a separate
quoted,
pleaded
paragraph
‘‘
its terms was
the oral agreement
thereof ”.
within one
performed
judg-
defendants
for summary
A
then made by
motion was
affidavit
Practice. The
ment under rule 113 of the Buies
Civil
individual defendant
motion was
made
support
no facts.
Since summary
but
stated
surprisingly
there-
we must look,
has been granted,
the complaint
dismissing
and the affidavit of
the complaint
to the allegations
fore,
opposition
corporation
president
which material
affidavit
states
of that
portion
motion. The
‘‘
sta-
gas
has
garage
facts:
the following
Manhattan,
Borough
City
Avenue,
tion at 14 Second
thereat. The
gas
sale
purpose
for the
York,
of New
had an
corporate
arrange-
defendant Wolf
oil,
companies supplying
oil
with various
ment
or allowance based
discount
received
defendants
them
purchased by
through
of gasoline
of gallons
number
obtain a greater allowance,
In order to
the companies.
increase the
volume of their orders
desired
me with the
if
proposition
came to
and hence
for gasoline,
gasoline through them,
thereby
give my
I would
equal
to me
amount
volume,
they
their
increasing
from the
companies upon
them
oil
received
to the discount
if
I
orders.
gave
them,
my
whatever
orders which
and then
they accepted
the defendants
I did give
name to the oil
under which
companies,
in their
transmitted
*4
cent a gallon.
at least one
Through-
a discount of
received
they
through
and
them some
purchased
I
period
out
orders which
accepted
gasoline,
gallons
907,115
*
* *
the Personal
Law
1
section 31 of
Property
Subdivision
by
only
agreements
as to apply
so construed
has been
within
one
terms
performance
year
do not admit
their-
within
performance
and if
their
the time
unlikely
improbable
may be,
however
the year,
of the statute.
proscription
not come
does
agreement
Fire
Baptist
Brooklyn
First
Church v.
Trustees
(See, e.g.,
Holbrook,
Mfg.
&
Co.
Chemical
Warren
Ins.
Voigt,
The case Cohen the as the Mar is, substance, same (supra). plaintiff, tocci case a salesman, commission employed by alleged the defendant. Plaintiff the 1938, orally agreed defendant him commissions based placed by Paper Corp., a Resolute Products customer procured by plaintiff, the time whether or the not employ placing was in the at the defendant’s time of the allegations According complaint orders. to the the defend Paper Corp. ant had to sell Resolute Products procured of cake boxes for the account of the cus holding Inc. tomer, Cushman & In. Sons, the contract was being unenforcible of within Frauds court said (264 App. 261): are 260, “We mindful of the rule that con performance year, though tracts admit of within a unlikely performed, be thus not are within the statute. [Citing cases.] the contract here But is a different charac only for not is it of indefinite duration ter, but, terms, imposed obligation long defendant which continues so Paper Corp. Resolute as the defendant and Products exist. It Paper Corp. is true that if Resolute Products should no year, within defendant no commissions would thereby but the contract be defendant’s would not have earned, ‘ performed,’ apply then for it would been orders that * * * accepted succeeding years. might con- be Unlike require performance single may act which tracts which requires may within a here executed contract period for an unlimited defendant, time, commis- Paper Corp. from Resolute Products sions on orders performance impossible year.” and, therefore, placed upon the defendant under oral the. (supra) case was one in the Cohen which would con Paper long.as the defendant Resolute Products tinue as possess Corp. The defendant did not in existence. were right a matter the contract as and could to terminate Pape" in no Resolute placed by avoid on orders way liability Taylor accept. (See which it was bound to Corp. Products Fairbanks, Hedeman Co., Morgan’s Sons later herein.) Morse & 286 N. Y. discussed the plaintiff cases (supra) Martocci Cohen In both contracts. respective salesmen had their parts executed constituted case the plaintiff’s performance in the customer, introduction to the having the contract by plaintiff performed part case the his those cases In both for the defendant. procured customer respective plaintiffs performance by impose necessary the consideration agreement constituted their part out carry the defendants binding obligation *7 promises, by paying in with their of the accordance contracts, whenever the customers to plaintiffs commissions on sales Co-op. Assn., League (Rubin Dairymen’s made. passed upon The considered question sole “ its terms is [was] whether the contract Cohen by case was thereof.” from the
not to be within one performed year In neither N. Y. 846.) affd. 289 (264 escape the defendant case nor the could Cohen case commissions to plaintiffs to the contractual obligation plaintiffs’ The plaintiff. procured to the customer sales dependent upon not two cases was in those commissions right but was here, defendants, act of the or the plaintiffs the procured third party, the act of the dependent wholly which the an order placed the customer time Any customer. had to accept they faith bound good defendants were did If the customer called for. the commission plaintiffs after the contract was more than until not order under contractual still be would into the defendants entered on sub their commissions the plaintiffs to pay con avoid their not could The orders. sequent from the accept refusing obligations by tractual Morgan’s In Taylor the plaintiffs. procured by customers was brought by an action supra), Co. (124 184, 186, Sons commissions a written agreement recover “ upon all commissions paid be was to whereby said ”. This court purchasers bona fide from “ commissions upon the plaintiff allowed referee 188): (p. responsible accepted by parties, orders from which were duty defendant. We to the that it incline view accept presented defendant all orders purchasers, bona fide which were with the made accordance provisions right, and that did not have contract, arbitrarily accept without cause, to orders. refuse to Such require a construction of territory expense, travel over the own his six mentioned, year, part right reject times a with a defendant every presented deprive order him thus him, and to commissions.”
We have also Fairbanks, said in Hedeman v. Morse & Co. supra), 240, 250, that a salesman’s commis sions for the arbi services rendered could not defeated trary employer refusal of his orders from the cus procured by tomer the salesman. or dissolution retirement from' business of a (supra) or a
defendant customer cases Martocci did not take those out of cases the Statute of Frauds. Appellate (264 App. 261): Cohen case Division said suggested Corp. Paper It is that Resolute Products might retire business dissolve impossible per in which event the further contract would be ‘ formance and thus would terminate. But termination is not # * performance, but rather destruction of the contract provision authorizing parties where there is no either of the *8 ” Voigt, right.’ 69.) (Blake v. terminate as a matter of party neither nor under the Here, has, is it for them through agreement, of the furnish consideration terms performance party period beyond which will bind the other for a offering acceptance particular and of order. Plaintiff a perform perform all. need never If chooses to accept placing an order the not bound it. If defendants are perform acceptance an order do not of bind defendants as to is clear that each order future order. It themselves acceptance separate parties that the is a contract and herein and performed of have and executed series contracts. Appellate judgment of Division be should reversed Special of Term this order with costs court affirmed, and the Appellate' Division. and due for moneys suit is J. (dissenting).
Desmond, summary awarded have been and defendants agreement, the com- that the ground of on on motion, dismissal, one is sued plaint on agreement shows its face that our For unenforcible. which makes the Statute of Frauds taken are, course, complaint of the purposes, allegations legal question as are to the being true, and so we limited which particular under the enforcibility, statute, may a contract That such and complaint asserts describes. of mutuality lack be invalid for as (such some other reason point, too, and beside obligation) point, beside any- on defendants- to pay fact that there be no obligation would into entered between unless until there were thing and plaintiff chose parties separate whereby sales transactions for accept, chose to orders give and defendants defendants, con- definite, described, claims under one gasoline. Plaintiff agreed parties orally tract whereby, according pur- so from certain oil long purchase should that, chasers, defendants, plaintiff’s but through orders, so as defendants should those gasoline, long discount, a certain pay plaintiff defendants would commission or equal to that producers defendants, received quantities of If that oral purchased so by plaintiff. ‘‘ one law, contract so set by plaintiff is, By forth ” (Personal Prop- terms is not within one performed year Law, complaint properly then the was erty 1), subd. § dismissed. whether, gave, or defendants
Regardless when, plaintiff plaintiff’s right give for accepted, any gasoline, orders if amount orders defendants’ terms of accepted any them, would, treaty, that either nothing continue an indefinite time. There was within other do, agreed-upon could within to an end. Putting period, bring arrangement have future, into the indefinite way: plaintiff, another if collect the discount could nothing and there was accepted, deal, discharge do, *9 one, obligation. therefore, terminate agreement, which under the rule of Bartgis Bros. Co. (289 846), New Greater York Brewery 57), was unenforcible because was not put writing. should costs. affirmed, Dye
Lewis, and Froessel, JJ., Conway, J.; concur with Des- J., mond, dissents Loughran, Ch. J., opinion J., concur. Fuld,
Judgment accordingly. County v. Western Erie New Authority, Water Respondent, Company et Defendants. York Water al., al., et Appellants, Argued July April 9, decided 1952.