Westinghouse Electric Supply Co. v. Syracuse Auto Supply Corp.

233 A.D. 788

Opinions

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.