In re the Estate of Thoens

Order, Surrogate’s Court, New York County, entered on March 20, 1975, affirmed on opinion of Di Falco, S. Respondents shall recover of appellant one bill of $60 costs and disbursements of this appeal. Concur— Murphy, Lupiano, Silverman and Yesawich, JJ.; Kupferman, J., dissents in the following memorandum: At this early stage, with the application by the preliminary executors to dismiss on the ground of the statute of frauds this claim to one half of an estate, the motion should have been denied. The claim is based on an alleged oral agreement, and the memorandum alleged to remove the bar of the Statute of Frauds is a will executed January 18, 1965, which will has many times since been superseded. There are also 692 several deeds with respect to the real property involved, all of which shows a serious basis for the claimant’s contention. (See Matter of Levin, 302 NY 535 [4 to 3 decision].) While ultimately the claim may not be successful, cf. Phillips v Kantor & Co. (31 NY2d 307), he should be permitted an opportunity to attempt to substantiate it through pretrial proceedings. Concur— Kupferman, J. P., Murphy, Lupiano, Silverman and Yesawich, JJ.