281 A.D. 674 | N.Y. App. Div. | 1952
Order modified insofar as to deny dismissal of the first cause of action. It is not clear from the complaint alone that some enduring obligation through the years was being undertaken by defendants and that the transaction or transactions contemplated could not be completed within the year. The impression gained from the complaint is that the parties were contracting in reference to an immediate and particular corporate need and some financial dealing to that point, rather than in reference to continuing transactions which might take place over a period of years, as in Cohen v. Bartgis Bros. Co. (246 App. Div. 260, affd. 289 N. V. 846) and Martocei v. Greater New Torlc Brewery (301 N. Y. 57). \Ye think, therefore, that the applicability of the Statute of Frauds should not be determined on the face of the complaint. Present — -Peck, P. J., Dore, Cohn and Callahan, JJ.; Cohn, J., dissents and votes to affirm in all respects. Settle order on notice. [See post, p. 813.]
