Summary
applying statute to "services rendered in securing a purchaser for a quantity of books"
Summary of this case from Yarusi v. S. Sedghi Inc.Opinion
May 25, 1967
Judgment unanimously modified, on the law and the facts, without costs and disbursements, to provide for dismissal of plaintiff's complaint, with costs to defendant as provided in said judgment, but to strike the provisions contained therein for recovery in favor of defendant against plaintiff upon defendant's counterclaim, with interest; and counterclaim severed and remanded for trial. On the basis of the affidavits before it, Special Term properly held that the New York Statute of Frauds applied to bar plaintiff's alleged causes of action grounded upon a contract to pay for services rendered in securing a purchaser for a quantity of books (General Obligations Law, § 5-701, subd. 10), including the alleged cause to recover on quantum meruit (see Minichiello v. Royal Business Funds Corp., 18 N.Y.2d 521). But it does not appear that the defendant is entitled as a matter of law to a recovery upon his counterclaim. The defendant, citing Blanchard v. Blanchard ( 201 N.Y. 134), states that he "relies upon an implied agreement [by plaintiff] to repay" the sum paid by him as express guarantor of the bank loan to plaintiff. (See, also, 38 C.J.S., Guaranty, § 111.) The plaintiff, however, expressly avers that the loan was suggested and guaranteed by defendant, and later paid by him, upon the understanding that the amount would be credited toward the sum which plaintiff claims was due him for services performed under the alleged contract now sought to be avoided by defendant. If the defendant voluntarily paid the loan, intending that his payment thereof should be credited as a part payment to plaintiff for services rendered under the said alleged contract, there is a question whether there exists an implied agreement on plaintiff's part to reimburse defendant. "Summary judgment should not be granted where there is any doubt as to the existence `of [factual] issues'." ( Millerton Agway Coop. v. Briarcliff Farms, 17 N.Y.2d 57, 61); and, under the circumstances here, there are material issues of fact and law which may only be properly resolved following a plenary trial. (Cf. 3 Williston Contracts [3d ed.], § 538; New York Contracts Law, § 634; 9 N.Y. Jur., Contracts, §§ 2-4; Miller v. Schloss, 218 N.Y. 400; Keystone Hardware Corp. v. Tague, 246 N.Y. 79; Collier v. Coates, 17 Barb. 471; Graham v. Healy, 154 App. Div. 76.) Settle order on notice.
Concur — Stevens, J.P., Eager, Capozzoli, McNally and Bastow, JJ.