Opinion
February 24, 1956
The order of Special Term denying defendants' motion, pursuant to rule 112 of the Rules of Civil Practice, for judgment dismissing the complaint on the ground that the action is barred by the Statute of Frauds, should be affirmed. However, we do not think from the pleadings alone, it can be said that the agreement is one capable of being performed within one year and thus outside the statute. On these pleadings an issue is presented as to the effect of the oral agreement ( Jacobson v. Jacobson, 268 App. Div. 770; High v. Pritzker, 269 App. Div. 1015). Order unanimously affirmed, with $20 costs and disbursements to the respondent.
Concur — Breitel, J.P., Botein, Rabin, Cox and Frank, JJ.