From Casetext: Smarter Legal Research

Theiss v. McRae

Appellate Division of the Supreme Court of New York, Second Department
Oct 21, 1940
260 App. Div. 882 (N.Y. App. Div. 1940)

Opinion

October 21, 1940.


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.


Summaries of

Theiss v. McRae

Appellate Division of the Supreme Court of New York, Second Department
Oct 21, 1940
260 App. Div. 882 (N.Y. App. Div. 1940)
Case details for

Theiss v. McRae

Case Details

Full title:ANDREW L. THEISS, CHARLES THEISS and ROBERT M. THEISS, Copartners Doing…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 21, 1940

Citations

260 App. Div. 882 (N.Y. App. Div. 1940)

Citing Cases

Newkirk v. Bradley Son

We are not impressed by plaintiff's argument that, since defendant's promise was to execute a written…