Opinion
May 4, 1945.
Present — Martin, P.J., Townley, Glennon, Untermyer and Dore, JJ.;
Determination of the Appellate Term affirmed, with $20 costs and disbursements to the respondents.
Glennon and Untermyer, JJ., concur for affirmance upon the ground that the Appellate Term correctly held that the defense of cancelation was available to the defendants ( Scott v. Engineering News Publishing Co., 47 App. Div. 558; Gilbert v. Quinlan, 59 Hun 508, 511; Worley v. Calculagraph Co., 87 Misc. 309; Note, 23 A.L.R. 451) and upon the further ground that the defense of the Statute of Frauds was likewise available to them ( Schuylkill Fuel Corp. v. Neiberg Realty Corp., 250 N.Y. 304, and cases there cited). Dore, J., concurs for affirmance upon the ground first stated; Martin, P.J., and Townley, J., dissent and vote to reverse the determination of the Appellate Term and the order of the City Court and grant the motion. [See post, p. 818.]