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Behrman v. Peoples Camp Corp.

Appellate Division of the Supreme Court of New York, Second Department
Oct 21, 1968
30 A.D.2d 973 (N.Y. App. Div. 1968)

Opinion

October 21, 1968


Order of the Supreme Court, Kings County, dated February 14, 1968, which denied defendant's motion pursuant to CPLR 3211 (subd. [a], par. 5) to dismiss the complaint, reversed, on the law, with $10 costs and disbursements, and motion granted. No questions of fact were considered. The action, which is for damages for breach of an alleged two-year employment contract, is based upon an agreement which comes within the Statute of Frauds and is unenforcible (General Obligations Law, § 5-701, subd. 1). The memorandum written and initialed by defendant's authorized agent or officer is insufficient to take the agreement out of the statute as it does not contain all of the essential terms of the agreement as pleaded and upon which plaintiff relies ( Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48). Nor may plaintiff, to supply the lack, rely upon the unexecuted, typewritten document prepared by himself and in places changed in his handwriting ( Brause v. Goldman, 10 A.D.2d 328, affd. 9 N.Y.2d 620; McClure v. Rignanese, 25 A.D.2d 565; Chu v. Chu, 9 A.D.2d 888), inasmuch as it is not authenticated or shown to contain the agreement of the parties, by the contents of defendant's initialed memorandum to plaintiff (cf. Sorge v. Nott, 22 A.D.2d 768). Beldock, P.J., Christ, Rabin and Hopkins, JJ., concur; Benjamin, J., dissents and votes to affirm the order, upon the authority of Crabtree v. Elizabeth Arden Sales Corp. ( 305 N.Y. 48).


Summaries of

Behrman v. Peoples Camp Corp.

Appellate Division of the Supreme Court of New York, Second Department
Oct 21, 1968
30 A.D.2d 973 (N.Y. App. Div. 1968)
Case details for

Behrman v. Peoples Camp Corp.

Case Details

Full title:HARRY D. BEHRMAN, Respondent, v. PEOPLES CAMP CORPORATION, Appellant

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

Date published: Oct 21, 1968

Citations

30 A.D.2d 973 (N.Y. App. Div. 1968)

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