Opinion
November 16, 1955.
Appeal from Supreme Court, Delaware County.
The difficulty with the order arises because the answer also contained a counterclaim, which was likewise stricken out. The counterclaim alleges the breach of an oral contract by the terms of which plaintiff sold to defendant new automobiles at a price agreed to be $100 more for each automobile than the plaintiff was obliged to pay the manufacturer. It alleges that the plaintiff misrepresented the price paid to the manufacturer and overcharged the defendant beyond the agreed price. We think that the counterclaim as a pleading alleges a good cause of action, and should not have been stricken on motion. The attack made upon it that it is void under the Statute of Frauds is without merit. There is nothing in the terms of the contract, as it is alleged in the counterclaim, extending its performance beyond one year. It merely fixes the price of such automobiles as were purchased by the defendant from plaintiff, and was clearly terminable at will. Order reversed, and motion denied, with $10 costs. Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ., concur.