Theiss v. McRae

260 A.D. 882, 23 N.Y.S.2d 2, 1940 N.Y. App. Div. LEXIS 5210

Opinion

Appeals by one of three defendants in an action on contract (a) from an order denying a motion to dismiss the complaint under Civil Practice Rules 106 and 107 on the ground that it fails to state a cause of action and on the further ground that the agreement in suit is void under the Statute of Frauds; and (b) from an order dated March 7, 1940, denying a motion to require plaintiffs to serve an amended complaint and for other relief. Order denying motion to dismiss the complaint reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiffs, within ten days from the entry of the order hereon and upon payment of such costs and disbursements, to serve an amended complaint. Appeal from order dated March 7, 1940, dismissed as academic, without costs. The complaint fails to state a cause of action. The pleaded oral agreement is void under the Statute of Frauds. By its terms it was not to be performed within one year. (Pers. Prop. Law, § 31, subd. 1; McLachlin v. Village of Whitehall, 114 App. Div. 315, 317-318; Amburger v. Marvin, 4 E. D. Smith, 393, 395; Deutsch v. Textile Waste Merchandising Co., 212 App. Div. 681, 684. See also, Subirana v. Munds, 282 N. Y. 726, 728.) Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.