Opinion
January 29, 1951.
In an action to recover damages for the alleged breach of a contract for the sale of real property, defendant appeals from an order which denies her motion for judgment on the pleadings, pursuant to rule 112 of the Rules of Civil Practice. Defendant contended that the note or memorandum of the contract in suit, consisting of a check to the order of one of the plaintiffs, signed by defendant, and having certain notations on its back, was insufficient to take the contract out of the operation of the Statute of Frauds. (Real Property Law, § 259.) Order affirmed, with $10 costs and disbursements. While it may be determined on a trial that the memorandum was not subscribed by the defendant (cf. James v. Patten, 6 N.Y. 9), or that it does not state all of the terms of the contract which the parties made (cf. Poel v. Brunswick-Balke-Collender Co., 216 N.Y. 310), those questions may not be decided on the pleadings alone. Nolan, P.J., Carswell, Johnston, Wenzel and MacCrate, JJ., concur.