Ross v. Keene Corp. , 52 A.D.2d 581 ( 1976 )

In an action inter alia to recover damages for breach of contract, defendant appeals from an order of the Supreme Court, Kings County, dated April 22, 1975, which (1) denied without prejudice its motion to dismiss plaintiff’s first and second causes of action on the ground of the Statute of Frauds and (2) denied its motion to dismiss the first cause of action on the basis of a defense founded upon documentary evidence. Order affirmed, with $50 costs and disbursements. Defendant’s time to serve its answer is extended until 20 days after entry of the order to be made hereon. The alleged oral commission agreement is not within the Statute of Frauds. It was terminable at will by either party (see North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171; Nat Nal Serv. Stations v Wolf, 304 NY 332; Rifkind v Web IV Music, 67 Mise 2d 26), and did not require payment of commissions on reorders (see Zupan v Blumberg, 2 NY2d 547; Hausen v Academy Print. & Specialty Co., 34 AD2d 792). Gulotta, P. J., Martuscello, Latham, Cohalan and Shapiro, JJ., concur.