Edelstein v. Hacker

Appeal from an order denying a motion to dismiss the complaint pursuant to rule 107 of the Rules of Civil Practice on the ground that the alleged agreement upon which the cause of action is founded is unenforcible under the Statute of Frauds. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. In our opinion, the only cause of action pleaded is based on an alleged breach of an oral agreement to lease a gasoline service station to respondent for a period of 21 years. That agreement is unenforcible under the Statute of Frauds, and, under the facts as pleaded, no right to a recovery is alleged. (Cf. Dung v. Parker, 52 N. Y. 494; Redlark Realty Corp. v. Minkin, 306 N. Y. 762.) However, as respondent may be able to allege a cause of action different from the one set forth in the complaint, he may, if so advised, serve an amended complaint within 10 days after service of a copy of the order to be entered hereon, with notice of entry, upon the payment of the aforesaid costs. Nolan, P. J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ., concur.