Minichiello v. Royal Business Funds Corp.

Appeal from an order of the Supreme Court at Special Term, entered June 29, 1965 in New York County, which denied a motion hy appellant for an order dismissing the complaint. Memorandum by the Court. Order, entered on June 29,1965, appealed from affirmed, with $50 costs and disbursements to respondents. The facts are sufficiently set forth in the dissenting opinion so it is unnecessary to repeat them here, the single question being, as indicated, whether the Statute of Frauds is a complete defense to the action and as such warrants a dismissal of the complaint. We are in agreement that if the cause of action alleged had arisen subsequent to the amendment of subdivision 10 of section 31 of the Personal Property Law as reconsolidated and transferred to the General Obligations Law (§ 5-701) that the action could not be maintained. However, it has been held under the old section 31 of the Personal Property Law, prior to the amendment and its transfer to the General Obligations Law, that while the Statute of Frauds might be a bar to an action brought on an express contract, it would not constitute a defense to an action brought in quantum meruit to recover for services rendered. (Gibson v. Archer Prods., 281 App. Div. 661 [1952]; Wells v. Dent, 4 A D 2d 307, 309 [1957].)