de Camp v. Bernhard , 280 A.D. 754 ( 1952 )

Appeal from an order of the Supreme Court at Special Term, entered January 29, 1952, in New York County, which denied a motion by defendants for summary judgment dismissing the complaint under rule 113 of the Rules of Civil Practice.

Per Curiam.

By the express terms of plaintiffs’ complaint, the claimed employment contract alleged therein for the calendar year of 1951 is within the Statute of Frauds, and the papers or memoranda relied on by plaintiffs, whether read severally or together, are not sufficient to satisfy such statute as to the oral agreement claimed. Accordingly, the order appealed from denying defendants’ motion for summary judgment must be reversed.

An affidavit, however, by plaintiff, de Camp, alleges a different state of facts which, if proved, might avoid the statute; but that is not the contract relied on in this complaint. In that state of facts, on the authority of Elsf elder v. Cournand (270 App. Div. 162, 165 [1st Dept., Dec., 1945]), the order denying defendants’ motion for summary judgment should be reversed, with $20 costs and disbursements, the motion granted, and the complaint dismissed, with costs to defendants-appellants, with leave to plaintiffs, if so advised, to serve an amended complaint within ten days after service of order with notice of entry thereof on payment of said costs.