Wilkenfeld v. Rowen

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered December 12, 1996, which granted defendants’ motion to confirm the Special Referee’s report dated July 16, 1996, deemed that report a decision and order, and dismissed the complaint, unanimously reversed, on the law and the facts, without costs or disbursements, the complaint reinstated and the matter remanded for further proceedings. Appeal from order, same court and Justice, entered on or about September 29, 1997, which denied plaintiffs motion for reargument, unanimously dismissed, without costs or disbursements, as taken from a non-appeal-able order.

Contrary to the conclusion reached by the Special Referee, there remains an issue of fact as to whether plaintiff owns stock in defendant Spectrum. Plaintiff made out a check for $30,000, payable to the corporate defendant, marked by him as representing an investment in a proposed partnership. Plaintiff contends that there was an oral agreement to transfer shares of the corporation to him for such payment. If credited, the payment would be partial performance sufficient to take the agreement herein out of the Statute of Frauds. Further, the corporation’s accountant prepared the tax return for the corporation identifying plaintiff as owner of 20% of defendant Spectrum’s stock. The accountant also made the stock ownership notation on a corporate ledger.

We reject the finding of the Special Referee that the payment by plaintiff was not “unequivocably referable” to an oral agreement. Obviously, plaintiff, who is not a lawyer, assumed that his check for $30,000, which was negotiated to Spectrum and deposited by it, was to acquire an “ownership” interest in Spectrum. Thus, he made the notation “Partnership Investment.” Under the circumstances, we find that this action may be unequivocably referable to an oral agreement, and consequently we remand this matter to the Supreme Court for further proceedings. Concur — Nardelli, J. P., Wallach, Lerner and Rubin, JJ.