Opinion
July 9, 1959
Appeal from the Onondaga Special Term.
Present — McCurn, P.J., Kimball, Williams, Goldman and Halpern, JJ. [ 11 Misc.2d 1001.]
Order reversed, with $10 costs and disbursements and motion denied, with $10 costs. Memorandum: The order appealed from dismissed the complaint on a motion by the defendants pursuant to rule 112 of the Rules of Civil Practice. In reversing the order and denying the motion, we do not pass upon the question of whether the agreement would be enforcible if it were oral and fell within the provisions of the Statute of Frauds. On this motion, we are simply concerned with the sufficiency of the complaint to state a cause of action. The decision of the Special Term was based on the assumption as there expressed, that "we are here concerned with a cause of action to enforce an admitted oral agreement to convey real estate on the death of the transferor." (Emphasis supplied.) The Special Term said that the Statute of Frauds was before the court "as the complaint sets forth that the agreement was oral." The fact is that nowhere in the complaint is it alleged nor does it appear that the agreement or agreements were either oral or in writing. The allegations that they were not in writing and subscribed by the persons charged appear solely in the affirmative defenses of the answer. There was no bill of particulars to be considered on the motion. It necessarily follows that the complaint states facts sufficient to constitute a cause of action and a determination as to whether the agreements were oral or in writing, and whether if they were oral, they were enforcible, must await proof at the trial. All concur.