233 A.D. 788 | N.Y. App. Div. | 1931
Dissenting Opinion
(dissenting). My Brother Thompson and I interpret the language of the answer as alleging that the defendant, finding itself in need of a further extension of time to meet its indebtedness to the Syracuse Trust Company, to plaintiff, to Freed-Eisman Radio Corporation and to Beckwith, went first to the trust company and agreed with it that defendant’s indebtedness to it and to each of said creditors should continue to be evidenced by notes or acceptances to be renewed every three months, interest on the indebtedness to be paid on each renewal, and that the time of payment of said indebtedness was and should be extended at least until January 1, 1931; and that as consideration therefor defend
Lead Opinion
Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the defendant to plead over within twenty days upon payment of the costs of the motion and of this appeal, on the ground that the oral agreement relied on by the answer is unenforcible under the Statute of Frauds, being an executory agreement not to be performed within one year. We are required to pass upon this question as of the date of the beginning of the action, although the matter would not be material in a new action, as the date of ultimate extension, January 1,1931, has already passed. (Burns v. Lopez, 256 N. Y. 123; Delaware Trust Co. v. Calm, 195 id. 231.) All concur, except Crouch and Thompson, JJ., who dissent and vote for affirmance in a memorandum. Present—Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.