Opinion
April 15, 1963
In an action to recover damages from both defendants for their breach of an alleged oral contract (first cause of action), and to recover damages from the individual defendant only for his breach of another alleged oral contract (second cause of action), the defendants appeal from an order of the Supreme Court, Kings County, dated September 28, 1962, which denied their motion: (a) to dismiss the two causes of action alleged in the complaint on the ground that they are barred by the Statute of Frauds (Rules Civ. Prac., rule 107, subd. 7); and (b) in the alternative, to strike out as sham etc., certain matter set forth in the complaint (Rules Civ. Prac., rule 103). Order affirmed, with $10 costs and disbursements. Defendants' time to answer is extended until 20 days after entry of the order hereon. In our opinion, the first cause of action alleged in the complaint, which asserts an oral contract to pay to plaintiffs, as "finders", a fee consisting of 2,000 shares of common stock of the defendant Metropolis Bowling Centers, Inc., does not come within the Statute of Frauds ( Wells v. Dent, 4 A.D.2d 307, 308, and cases there cited.) The second cause of action is in part based on what may be interpreted as an original promise by the defendant Erwich to guarantee or indemnify plaintiffs against any losses they might sustain as a result of their purchasing newly issued shares of stock of the defendant corporation (Metropolis). The allegations in said cause of action permit proof of an oral contract of indemnification which is not affected by the Statute of Frauds. The question of whether or not the agreement as alleged comes within the purview of the Statute of Frauds should await the development of the facts upon the trial. The alternative relief sought by defendants under rule 103 of the Rules of Civil Practice was properly denied. Ughetta, Acting P.J., Christ, Brennan, Hill and Rabin, JJ., concur. [ 36 Misc.2d 244.]