282 A.D. 797 | N.Y. App. Div. | 1953
Appeal from an order of the Supreme Court, Broome County Special Term, which denied defendants’ motion to dismiss the first cause of action in plaintiff’s amended complaint, under subdivision 8 of rule 107 of the Rules of Civil Practice, upon the ground that the agreement therein alleged is void under the Statute of Frauds. The cause attacked alleges in substance that defendants agreed to pay plaintiff a commission on all sales made by plaintiff of defendants’ goods and services, and also to agree to pay plaintiff for his services as an employee. That plaintiff accepted such employment and between March 1, 1948, and May, 1952, continued therein and made sales of defendants’ goods and services and also rendered service as an employee. Plaintiff’s bill of particulars states that the agreement was oral and indicates the commission percentages. The Special Term held that the contract alleged was one of indefinite hiring, terminable at will, and hence not within the Statute of Frauds. We think the Special Term was correct. Patently the contract was one for an indefinite hiring and might be performed within a year. It does not therefore violate subdivision 1 of section 31 of the Personal Property Law (Nat Nal Service Stations v. Wolf, 304 N. Y. 332; Posner v. Precision Shapes, 271 App. Div. 435). The cases of Cohen v. Bartgis Bros. Co. (264 App. Div. 260, affd. 289 N. Y. 846) and Martocci v. Greater N. Y. Brewery (301 N. Y. 57). cited by defendants, are distinguishable. Order unanimously affirmed, with $10 costs and disbursements. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.