Dickenson v. Dickenson Agency, Inc.

Order affirmed without costs. Memorandum: Plaintiff was employed by defendant Dickenson Agency, Inc. as an insurance salesman from 1957 until June 16, 1980. After his termination, plaintiff brought suit seeking, inter alia, commissions (first and second causes of action) and bonuses (fifth and sixth causes of action) which he asserted were earned during his employment. The complaint alleges that under the parties’ oral employment agreement plaintiff was entitled to be compensated on a commission basis when he sold an insurance 984 policy and when a policy he had previously sold was renewed. The agreement also provided that plaintiff was entitled to receive renewal commissions "whether or not renewed subsequent to his termination of employment”. The complaint further alleged an oral agreement between the parties as directors and officers of defendant agency for the payment of bonuses in lieu of dividend payments in ratio to stock ownership. Defendants appeal from an order denying their cross motion for summary judgment. They contend plaintiff’s causes of action are barred by the Statute of Frauds (General Obligations Law § 5-701 [a] [1]). Special Term properly dismissed plaintiff’s third and fourth causes of action seeking commissions earned on policies renewed subsequent to his termination of employment as falling within the Statute of Frauds and there is no cross appeal by plaintiff from this determination. As a general rule, if part of an entire contract is void under the Statute of Frauds, the whole of such contract is void (De Beerski v Paige, 36 NY 537, 539). Where, however, a parol contract is a severable one, i.e., susceptible of division and apportionment, having two or more parts not necessarily dependent upon each other, those which, if standing alone, are not required to be in writing, may be enforced (see, Markey v Kelly, 10 AD2d 650, 651; 56 NY Jur, Statute of Frauds, §§ 322-325, 329). Here, that part of the oral agreement entitling plaintiff to commissions on policies sold or renewed during his employment was clearly valid and was divisible from that invalid part of the agreement providing for commissions earned on policies renewed subsequent to plaintiff’s termination. Since the consideration for these separate promises is capable of apportionment without doing violence to the terms of the contract, or without making a new contract for the parties, Special Term properly denied defendants’ cross motion to dismiss plaintiff’s first and second causes of action. The dissent fails to recognize the well-established principle that the Statute of Frauds only applies to agreements which are, by express stipulation, not to be performed within a year. It does not apply to an agreement which appears by its terms to be capable of performance within the year; nor to cases in which the performance of the agreement depends upon a contingency which may or may not happen within the year (North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 176). We also reject defendants’ contention that the fifth and sixth causes of action, those seeking bonuses, are barred by 985 the Statute of Frauds, the parties’ agreement providing for the payment of bonuses was for an indefinite period and performance was solely dependent upon the will of the parties. Therefore, by its terms, the agreement was not one which extended beyond one year from the time of its making, and it is not within the Statute of Frauds (see, Nat Nal Serv. Stas, v Wolf, 304 NY 332). All concur, except Davis, J., who dissents and votes to modify, in the following memorandum.