Archer v. Hamilton Wright Organization, Inc. ( 1956 )

Howabd T. Hogan, J.

Motion to dismiss “ the second amended complaint, and all of the causes of action stated therein ” pursuant to subdivision 7 of rule 107 of the Rules of Civil Practice.

A prior motion for the same relief addressed to the first amended complaint was granted by this court by decision dated August 6,1956. In that decision, permission to serve an amended complaint repleading the second cause of action on the theory of quantum meruit was granted. The order entered thereon, however, extended permission to serve an amended complaint without limitation.

The present or second amended complaint has repleaded with some changes the allegations and causes of action contained in the first amended complaint. For the reasons stated at length in the decision of August 6, 1956 and for the additional reason that the words contained in the present complaint ' ‘ during the-plaintiff’s lifetime ” or “ for the duration of her life ” make applicable the Statute of Frauds (Personal Property Law, § 31, subd. 1) on the ground that performance was “ not to he completed before the end of a lifetime ” the defendant’s motion is again granted.

Permission will be granted, however, to replead again the second cause of action only. A cause of action properly pleaded on the theory of quantum meruit is not barred by the Statute of Frauds but the second cause of action contained in the second amended complaint is obviously based upon the oral contract. In serving a new complaint, the plaintiff should not include any allegations upon which evidence could not be offered at the trial. The plaintiff could not, for instance, ‘ ‘ rely on the contract as evidence of the value of the services ” where the oral contract is barred by the statute (Parver v. Matthews-Kadetsky Co., 242 App. Div. 1, 3). (See, also, Erben v. Lorillard, 19 N. Y. 299.) Therefore, the allegation contained in paragraph “ 14 ” of the second amended complaint 1 ‘ which defendant promised and agreed to pay ” should be excluded.

The amended complaint which may be served as to the second cause of action shall be served within 20 days after the service of a copy of the order to be entered hereon.

Settle order on notice.