Harris v. Home Indemnity Co.

Appellate Division of the Supreme Court of New York

Harris v. Home Indemnity Co.

6 A.D.2d 861, 175 N.Y.S.2d 603, 1958 N.Y. App. Div. LEXIS 5299

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 1958

StatusPublished

Cited by9 cases

This text of 6 A.D.2d 861 (Harris v. Home Indemnity Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Harris v. Home Indemnity Co., 6 A.D.2d 861, 175 N.Y.S.2d 603, 1958 N.Y. App. Div. LEXIS 5299 (N.Y. Ct. App. 1958).

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Opinion

Judgment and order granting defendant’s motion to dismiss the first cause of action on the ground of the Statute of Frauds under rule 107 of the Rules of Civil Practice is affirmed, with costs to defendant-respondent. The rule in Blake v. Voight (134 N. Y. 69) should not be extended to make enforcible an oral agreement for permanent employment, where the right to cancel or terminate is limited unilaterally to plaintiff. For in such eases defendant’s liability endures indefinitely, subject only to the uncontrolled voluntary act of the party who seeks to hold defendant. Under such circumstances it is illusory, from the point of view of defendant, to consider the contract terminable or performable within one year. And it is to the party to be charged, alone, namely the defendant, that the statute is designed to provide protection from fraud and perjury. In so holding it is recognized that the authorities and the rationale there developed have rarely, if ever, been concerned with the precise application now presented (2 Williston on Contracts [rev. ed.], § 498; 2 Corbin on Contracts, § 449; cf. 161 A. L. R. 290; but see, contra, Spector Co. v. Serutan Co., 60 N. Y. S. 2d 212, affd. 270 App. Div. 993, motion for leave to appeal denied 270 App. Div. 1014; see, also, however, Radio Corp. v. Cable Radio Tube Corp., 66 F. 2d 778, 784-785; One Television v. fine Fifth Ave. Operating Corp., 206 Misc. 1090, affd. 1 A D 2d 819). With respect to the condition of defendant’s continuance in business, see One Television v. One Fifth Ave. Operating Corp. (supra); Schwerin Air Conditioning Corp. v. Servel, Inc. (132 N. Y. S. 2d 372, affd. 283 App. Div. 770, motion for leave to appeal denied 283 App. Div. 793, motion for leave to appeal denied 307 N. Y. 939), and Radio Corp. v. Cable Radio Tube Corp. (supra). Concur — Botein, P. J., Breitel, M. M. Frank, McNally and Bastow, JJ.

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Judgment and order granting defendant’s motion to dismiss the first cause of action on the ground of the Statute of Frauds under rule 107 of the Rules of Civil Practice is affirmed, with costs to defendant-respondent. The rule in Blake v. Voight (134 N. Y. 69) should not be extended to make enforcible an oral agreement for permanent employment, where the right to cancel or terminate is limited unilaterally to plaintiff. For in such eases defendant’s liability endures indefinitely, subject only to the uncontrolled voluntary act of the party who seeks to hold defendant. Under such circumstances it is illusory, from the point of view of defendant, to consider the contract terminable or performable within one year. And it is to the party to be charged, alone, namely the defendant, that the statute is designed to provide protection from fraud and perjury. In so holding it is recognized that the authorities and the rationale there developed have rarely, if ever, been concerned with the precise application now presented (2 Williston on Contracts [rev. ed.], § 498; 2 Corbin on Contracts, § 449; cf. 161 A. L. R. 290; but see, contra, Spector Co. v. Serutan Co., 60 N. Y. S. 2d 212, affd. 270 App. Div. 993, motion for leave to appeal denied 270 App. Div. 1014; see, also, however, Radio Corp. v. Cable Radio Tube Corp., 66 F. 2d 778, 784-785; One Television v. fine Fifth Ave. Operating Corp., 206 Misc. 1090, affd. 1 A D 2d 819). With respect to the condition of defendant’s continuance in business, see One Television v. One Fifth Ave. Operating Corp. (supra); Schwerin Air Conditioning Corp. v. Servel, Inc. (132 N. Y. S. 2d 372, affd. 283 App. Div. 770, motion for leave to appeal denied 283 App. Div. 793, motion for leave to appeal denied 307 N. Y. 939), and Radio Corp. v. Cable Radio Tube Corp. (supra). Concur — Botein, P. J., Breitel, M. M. Frank, McNally and Bastow, JJ.

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6 A.D.2d 861, 175 N.Y.S.2d 603, 1958 N.Y. App. Div. LEXIS 5299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-home-indemnity-co-nyappdiv-1958.

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