Guarino v. Guarino , 3 A.D.2d 889 ( 1957 )

Order reversed on the law, with $10 costs and disbursements and motion denied, with $10 costs. Memorandum: The first cause of action is sufficiently supported by the alleged oral agreement between the parties. Since the motion was to dismiss the complaint, and each cause of action therein, for failure to state facts sufficient to constitute a cause of action (Rules Civ. Prac., rule 106, subd. 4), the defense of the Statute of Frauds may not be considered (McKenna v. Meehan, 248 N. Y. 206, 212; cf. Rules Civ. Prac., rule 107, subd. 7). Neither may we speculate as to the effect of the parol evidence rule, or dismiss the complaint in anticipation of difficulties which the plaintiff may experience in establishing his case upon the trial (Gale v. Ryan, 263 App. Div. 76, 78). The second cause of action contains all the essential allegations for an accounting and therefore may not 'be dismissed. All concur. (Appeal from an order of Brie Special Term granting defendant’s motion for a dismissal of plaintiff’s complaint, but with leave to serve an amended complaint.) Present — MeCurn, P. J., Vaughan, Kimball, Williams and Bastow, JJ.