Meltzer v. Koenigsberg

Appeal by plaintiffs from an order and from the judgment entered thereon, dismissing the complaint upon a motion under rule 112 of the Rules of Civil Practice. Order and judgment unanimously affirmed, with $10 costs and disbursements. {Bayreuther v. Beinisch, 264 App. Div. 138, affd. 290 N. Y. 553; Coler v. Goler, 271 App. Div. 877, affd. 297 N. Y. 488.) Plaintiffs and defendant are sisters. The plaintiffs sue for an accounting and for other relief. Their complaint alleges that the parties agreed to make contributions for the business and other purposes of the father during his lifetime and to divide equally his net estate, regardless of which of them might be beneficiaries under his will. The complaint does not allege that the father was a party to the agreement, which was oral. Defendant moved for judgment on the pleadings under rule 112 of the Rules of Civil Practice, on the ground that the action was barred by the Statute of Frauds under subdivision 1 of section 31 of the Personal Property Law. The defendant was the chief beneficiary of the will which embraced both real and personal property. The oral agreement sought to be enforced was one which could not be performed until the end of the father’s life. Present — Johnston, Acting P. J., Adel, Sneed, Wenzel and MaeCrate, JJ. [See 278 App. Div. 570.]