Stone v. Ransel Trading Corp. , 190 N.Y.S.2d 84 ( 1958 )

Sidney A. Fine, J.

This motion for judgment on the pleadings, dismissing the complaint, is based upon the pleadings and plaintiff’s bill of particulars. The sole basis of the motion is the Statute of Frauds, viz., subdivision 1 of section 31 of the Personal Property Law. That section provides that any agreement or promise coming within any of its subdivisions is void unless some note or memorandum thereof be in writing, subscribed by the party to be charged or his lawful agent. The bill of particulars states that the agreements alleged in paragraphs third and fifteenth were oral, but there is no statement in the bill that there was no note or memorandum thereof, signed by the party to be charged, and the demand made no request for information as to whether there was such a note or memorandum. An agreement may be oral although there is a written note or memorandum of its terms. The memorandum may be entered into simultaneously or subsequently. There is no statement as to whether a signed note or memorandum of the agreement alleged in paragraph fifth existed.

In the absence of anything to indicate that the oral agreements alleged in paragraphs third, fifth, and fifteenth were not evidenced by a note or memorandum sufficient to satisfy the statute, there is no proper basis for dismissing the complaint as to said agreements.

It is to be noted that paragraph. 2 of the defense, which includes an allegation that there was no note or memorandum of the agreements sued upon, must be deemed denied, no order requiring a reply to the defense having been obtained.

Motion denied, but without prejudice to a motion to compel a reply and a renewal of this motion, after service of the reply, or a motion for a further bill of particulars, as to whether a note or memorandum existed, and a renewal on the basis of the original and further bills.