Opinion
February 27, 1939.
Lewis F. Glaser, of New York City, for plaintiff.
Charles Pratt Healy, of New York City, for defendants.
The complaint in this action alleges an agreement under which the plaintiff was to receive commissions on renewal sales. I think this is sufficient against a motion to dismiss. Whether the Statute of Frauds has any application is at least doubtful, see Warren Chemical Mfg. Co. v. Holbrook, 118 N.Y. 586, 23 N.E. 908, 16 Am.St.Rep. 788; but in any event the question should be presented by affirmative defense under Rule 8(c), 28 U.S.C.A. following section 723c.
The motion of the defendants to dismiss the complaint is denied.