Alliance Brokerage Corp. v. Harry Weinberg & Sons, Inc.

Appellate Division of the Supreme Court of New York

Alliance Brokerage Corp. v. Harry Weinberg & Sons, Inc.

16 A.D.2d 909, 1962 N.Y. App. Div. LEXIS 9113

Appellate Division of the Supreme Court of the State of New York·Decided June 19, 1962·Published

Opinion

Order entered on September 15,1961, denying defendants’ motion for summary judgment and granting cross motion of plaintiff to strike out the defense of Statute of Frauds, unanimously affirmed, with $20 costs and disbursements to plaintiff-respondent. On the present state of the pleadings the affirmative defense based on the Statute of Frauds was properly stricken. It may be, however, if the proof should vary from the complaint with respect to the oral agreement made for the payment of premiums, that defendants will be entitled to raise the defense either by way of amendment to its pleading or even without such amendment. (Fanger v. Caspary, 87 App. Div. 417; Anno. — Pleading Statute of Frauds, 158 A. L. R. 89, 134.) Concur — Breitel, J. P., Rabin, Valente, McNally and Stevens, JJ.

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Order entered on September 15,1961, denying defendants’ motion for summary judgment and granting cross motion of plaintiff to strike out the defense of Statute of Frauds, unanimously affirmed, with $20 costs and disbursements to plaintiff-respondent. On the present state of the pleadings the affirmative defense based on the Statute of Frauds was properly stricken. It may be, however, if the proof should vary from the complaint with respect to the oral agreement made for the payment of premiums, that defendants will be entitled to raise the defense either by way of amendment to its pleading or even without such amendment. (Fanger v. Caspary, 87 App. Div. 417; Anno. — Pleading Statute of Frauds, 158 A. L. R. 89, 134.) Concur — Breitel, J. P., Rabin, Valente, McNally and Stevens, JJ.

Alliance Brokerage Corp. v. Harry Weinberg & Sons, Inc., 16 A.D.2d 909, 1962 N.Y. App. Div. LEXIS 9113 (N.Y. Ct. App. 1962).

Pincite

16 A.D.2d 909 (Alliance Brokerage Corp. v. Harry Weinberg & Sons, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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