Garret v. Bernstein

261 A.D. 832, 24 N.Y.S.2d 902, 1941 N.Y. App. Div. LEXIS 7663

Opinion

Order denying appellants’ motion under rule 107, Rules of Civil Practice, to dismiss the complaint on the ground (1) that the action is barred by the Statute of Limitations, and (2) that the contract sued upon is not enforeible under the Statute of Frauds, affirmed, with ten dollars costs and disbursements, with leave to appellants to serve an answer within ten days from the entry of the order hereon. The action may be maintained to compel the delivery of one-third of the shares of stock of Roseburns Homes Co., Inc., and to account for the value and profits thereof. The action is not maintainable to compel the conveyance of interests in the so-called Queens and 2724 Pitkin Avenue properties to the plaintiff, because it appears on the face of the complaint that such properties had been conveyed before the agreement of September 30, 1930, was entered into, and that, in any event, the agreement which, concededly, was oral is unenforeible. Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.