A similar result was arrived at in the State of Illinois in the case of Blarjeshe v. Thompson’s Restaurant Co. (325 Ill. App. 189). There a sandwich was purchased at the request of one of the plaintiffs by a third person from the defendant’s restaurant. It was delivered to the plaintiff who requested it. The latter gave half of the sandwich to the coplaintiff. Both became ill, allegedly as a result of a fungus growth covering the contents. The defendant contended that the plaintiffs could not claim advantage of an <mask> since they were not the purchasers and that even if the purchaser is considered the agent of the plaintiff for whom the sandwich had been purchased, she could not he the agent of the coplaintiff, who was a donee of a portion of the sandwich. There the court held that the implied warranty of the fitness of food for human consumption extends beyond the immediate purchaser and extended to both plaintiffs.


Plaintiff seeks to add a cause of action for damages based upon the breach by the landlord of an <mask> of habitability. Such a cause of action seems to be based upon a theory of strict liability upon the part of the landlord similar to the breach of the implied warranty of merchantability in the products liability cases. In this situation the plaintiffs seek to make the landlord liable without proof of notice to him of any defect.


Three years after we decided La Sara Grain , we held in Melody Home that "an <mask> to repair or modify existing tangible goods or property in a good and workmanlike manner is available to consumers suing under the DTPA."26 Citing La Sara Grain , we stated that "[a]n *723implied warranty arises by operation of law when public policy so mandates".27 Our holding cannot reasonably be read to directly contradict authority on which we expressly relied. The court of appeals in Foreman summarily concluded that a breach of the Melody Home implied warranty is actionable only under the DTPA, pointing to another statement in that opinion that consumers of services do "not have the protection of a statutory or common law implied warranty scheme."28 But that statement described the state of the law before Melody Home ; it says nothing about whether the implied warranty we recognized is actionable apart from the DTPA.


*695As part of that contract, subdivision 1 of section 235-b of the Real Property Law requires the court to read into every residential lease contract a clause guaranteeing that the premises will be free of conditions dangerous to the health and safety of the tenant and that they will be fit for the uses reasonably intended. On the basis of the facts as presented here, the court finds that the <mask> of habitability has been breached.


The majority’s reliance on Park W. Mgt. Corp. v Mitchell (47 NY2d 316) does not support a cause of action for reimbursement of rent in an illegal landlord-tenant relationship. The Court of Appeals in Park W. (supra), merely recognized the right of a former tenant to recover money for a percentage reduction of the contract for rent in a legal landlord-tenant relationship based on Real Property Law § 235-b. In so doing, it recognized that a lease is more akin to the purchase of shelter, rather than a conveyance of land, and that, therefore, the law of sales with its <mask> of fitness (UCC 2-314) "provides a ready analogy” (supra, at 324) that is better suited than the outdated law of property to determine the respective obligations of landlord and tenant. Following this logic, there is no implied warranty of fitness recognized in the UCC for a "hot” product; or an illegal sale; nor should there be, by "ready analogy” a cause of action based on an implied *16warranty of habitability for an illegal apartment. Plainly, there is simply no basis in law to recognize a cause of action for rent paid in an unlawful landlord-tenant relationship.


Paekeb., J. The controlling question, presented in this case, is whether there was an <mask> of title on the sale of the note, from McCoy & Quackenboss to Artcher. Mc'Coy <fc Quackenboss were' not, at the time of the’ sale, in the possession of the note. It still remained in the possession ofWm. W. Arnold, the agent of James Arnold. They did not, at the time, believe the story of Hulburt, that such a note had been taken for them, and McCoy so stated, repeatedly,to Artcher. The latter, who was a relative of Hulburt, and better acquainted with him, believed his representations. The Porter note was no doubt included in the sale' to Artcher, as was found by the jury'; but it was not the’ only subject of the sale. McCoy & Gtu-ackenboss sold to’ Artcher their demand against James Arnold. This embraced not only the James Arnold notes, which were delivered to Artcher at the time of the sale, but also the Porter note, if it should turn out that there was any such note for McCoy & duackenboss. Artcher would not have purchased, unless- he had expected to get the Porter note, for he knew the notes of James Arnold were worthless; and McCoy & Quackenboss would not have’ sold the Porter' note for half its face if they had been certain they were the owners of it, or would receive it. For it seems to have been understood by all the parties that Porter was abundantly responsible.


The cases cited by the respondent, in support of his views, rest upon a totally distinct principle, viz., that in those cases the defendant, by the nature of his contract with the plaintiff, came under an <mask>. Thus, in Bremner v. Williams, 1 Carr & P. 414, which was an action against a stage coach proprietor, for an injury to a passenger, in consequence of the insufficient state of defendant’s coach, the court say, every stage coach proprietor warrants the passengers that the coach is equal to the journey. And Sharp v. Grey, 9 Bing. 457, was a like case, and the court held the stage proprietor liable, although the defect in the coach was out of sight, and net discoverable upon ordinary examination. But even these cases do not hold such warranty to be absolute. They rest more properly upon the principle, that carriers of persons are bound to a very high degree of caution, where the lives and limbs of human beings are under their control—and should provide, as far as human care and foresight can go, for their safe conveyance. See Angell on Carriers, § 534, and onward. Ingalls v. Bills, 9 Met. p. 1.


Plaintiffs also assert claims based upon the defective design of the container, and the manufacture of a fuel with a dangerously low flash point. Such defective design claims are independent of the product’s labeling and, thus, are not preempted (see, Higgins v Monsanto Co., supra; Bingham v Terminix Intl. Co., 850 F Supp 516). It should also be noted that, since the elimination of privity to support an action for breach of <mask> (UCC 2-318), there is little, if any, difference at present between an action for strict products liability and one for breach of implied warranty (see, Heller v U.S. Suzuki Motor Corp., 64 NY2d 407). Therefore, to the extent that plaintiffs’ implied warranty claims relate to the inadequate design of the container and the dangerously low flash point of the camp stove fuel, rather than to inadequate labeling or warnings, those claims survive. In arriving at this determination, we also take heed of the rule of interpretation that *139preemption clauses in a statute are to be narrowly construed and that matters beyond their scope are not preempted (Cipollone v Liggett Group, 505 US, supra, at 524).


misstep from turning into a fall. In addition, a handrail placed along the subject stairway would have served a dual purpose in that it not only would have aided people going up and down the stairs but also acted as a guide due to the fact that the subject area light was inadequate at the time” of the fall. Regarding causation, Avrit opined, “Had a handrail been in place on . . . , [appellant’s] incident most likely would not have occurred,” and that “the unsafe condition of [the] subject stairway was a direct cause of [appellant’s] incident.” In addition to relying on Avrit, appellant adverted to select statements in the deposition of Rollins. Rollins testified: “My experience indicates that [the] assembly, including the platform to the toilet, was probably not permitted.” Appellant pointed to evidence that Cassell installed a handrail for the stairs following appellant’s incident. In her opposition papers, appellant did not dispute Separate Statement No. 20. She did, however, dispute Separate Statement No. 21. Reply Papers In her reply, Cassell argued that appellant’s opposition “improperly focus[ed] on matters absent from her operative pleading” because she did not allege “claims regarding <mask> of habitability, nuisance, and unfair business practices. She discusse[d] such claims in her Opposition for the first time.” Cassell argued that it would be unfair for the trial court to consider these arguments. She claimed that appellant’s opposition improperly relied on authority involving tenants because they do not apply to nontenants. In other words, Cassell suggested that even if she owed a duty of care to Mazza, she did not owe one to appellant. Also, Cassell argued that appellant


A manufacturer is under a duty adequately to prepare, inspect and package its food product, and failure to take these precautions constitutes or may constitute negligence. (Bissonette v National Biscuit Co., 100d 1003, 1004 [2d Cir 1939].) However, as in the case of breach of <mask>, an *391injured consumer seeking redress upon a theory of negligence must show that the failure in the preparation, inspection or packaging of the food product occurred before the product left the possession or control of the manufacturer (Polvere v Chunky Chocolate Corp., supra; Halem v Wagner Baking Corp., 16 Misc 2d 840 [City Ct, Kings County 1959]), and that consumption of the product was a proximate cause of the injury for which recovery is sought (Ober v Associated Coca-Cola Bottling Co., 118 AD2d 1016 [3d Dept 1986]; Pompilio v McGeory, 283 App Div 826 [2d Dept 1954]; Miller v National Bread Co., supra, at 89.)


Were this the sole basis of recovery the petitioner would be out of court. However under subdivision 2 of section 96 of the Personal Property Law (see, now, Uniform Commercial Code, § 2-314) there survives the <mask> that the goods be of merchantable quality, a fact belied herein, of course, by the governmental seizure as violative of the Pure Food and Drug Act.


Garcia assails two of the above stated reasons for concluding that a buyer cannot, under the Act, sue the manufacturer for a refund of goods and services purchased from the dealer. First, she argues that the Act does not *1269require privity. To be sure, there is language in a few cases stating that "under the Act, the buyer can sue 'the manufacturer' for breach of the <mask> of merchantability despite a lack of privity." ( Mega RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 1333, fn. 11, 170 Cal.Rptr.3d 861 ; Gusse v. Damon Corp. (C.D.Cal. 2007) 470 F.Supp.2d 1110, 1116, fn. 9 ( Gusse ).) But this language stands for the unremarkable and statutorily compelled conclusion that a buyer may always sue the manufacturer for breach of the implied warranty under the Act irrespective of the buyer's privity with the manufacturer. ( Mega RV , at p. 1333, 170 Cal.Rptr.3d 861 [buyer may sue manufacturer for defects in component parts integrated into a vehicle]; Gusse , at p. 1116 [buyer may sue manufacturer for car obtained from dealer]; see generally Mega RV , at p. 1333, 170 Cal.Rptr.3d 861 ["The Act protects purchasers of consumer goods by requiring specified implied warranties [and] placing strict limitations on how and when a manufacturer may disclaim those implied warranties"].) This language does not stand for the much broader proposition that privity does not matter at all under the Act. To the contrary, and as explained above, the Act expressly treats manufacturers and retail sellers as distinct entities and consequently does not allow a buyer to sue a manufacturer for the retail seller's breach of an implied warranty.


In this action for nonpayment, petitioner landlord affirmatively puts forth the argument that Federal law preempts a State court from adjusting rent increases approved by HUD. The landlord petitioner’s second argument, put forth defensively in response to the tenants’ counterclaim of a breach of the warranty of habitability, argues that alleged deficiencies in services and conditions, even if substantiated, do not reach the level of a breach of the <mask> of habitability. The respondent tenants’ polemical powers are spent interpreting all available data on the boundaries and limitations of the warranty of habitability and applying those interpretations favorably to the present situation. As a result of this alleged breach, the tenants seek a rent abatement.


The defendants argue that there was no privity of contract between the infant plaintiff and the defendants and that, accordingly, the plaintiff could not recover on a breach of warranty. In support of this contention the defendants cite Chysky v. Drake Bros. Co. (235 N. Y. 468, 472) wherein it is stated: “ If there were an <mask> which inured to the benefit of the plaintiff it must be because there was some contractual relation between her and the defendant ”. The reason for this rule *280is that privity of contract does not exist between the seller and such third persons, and unless there be privity of contract, there can be no implied warranty.


The District contends that Penzel is required to produce "expert testimony" to establish the Plans were "defective." This argument is premised on the District's belief that <mask> claims in Missouri "are considered fault-based claims." The District reasons that "within the context of design documents, 'fault' is established by proving that a design professional negligently prepared the design documents," which requires expert testimony. We disagree. The implied warranty in a Spearin claim is that the plans are free from significant defects; it is not simply a guarantee that a particular level of care and competency was used to create the plans. "When the government provides a contractor with defective specifications, the government is deemed to have breached the implied warranty that satisfactory contract performance will result from adherence to the specifications, and the contractor is entitled to recover all of the costs proximately flowing from the breach." Essex Electro Engineers, 224 F.3d at 1289. In Ideker , the Missouri case we found most similar to Spearin , the Western District listed six necessary elements "to constitute a cause of action...in the nature of a breach of warranty by a contractor against a governmental entity," none of which involved fault or negligence by the government-owner. 654 S.W.2d at 621. Accordingly, Penzel need not show the District fell below a reasonable standard of care to prevail on its Spearin claim, and an expert witness is not required to attest to standard of care.


Burwell v. Jackson, 9 N. Y. 535, decided in 1854, has been said to show “ such perfection of learning and reasoning as to make it a landmark in the law.”' In that case, the vendors agreed that they would “ execute or cause to be made and executed unto the said party of the second part * * * a good and sufficient deed of conveyance of a certain lot of land,” etc. The title of the vendors was extinguished before the time for conveyance, by sale under mortgage, which latter was on the record at the time of the making of the contract. The court held “ that a purchaser is never bound to accept a defective title, unless he expressly stipulates to take such title knowing its defects,” and “ there is in every executory contract for the sale of lands, whatever may be the language in which the agreement is couched, an implied undertaking to make a good title, unless such an obligation is expressly excluded by the terms of the agreement.” It was held, also, that this <mask> ceases upon the consummation of the contract of sale by the execution of the deed, because then the law throws upon the purchaser the responsi*208bility of caring for Ms own protection by suitable express covenants in the deed.


This criterion establishes that the conditions in the public areas established the failure of the landlord to maintain the premises free of conditions threatening to the lives, safety and welfare of the tenants, thereby breaching the warranty. (Park W. Mgt. Corp. v Mitchell, supra; Octagon Assocs. v Kaufman/ Spivak Assocs., NYLJ, July 14, 1989, at 26, col 4 [App Term, 1st Dept]; Tower W. Assocs. v Derevnuk, 114 Misc 2d 158 [Civ *650Ct, NY County 1982].) This does not, however, exhaust the full impact of the <mask>.


Joseph D. Mintz, J. Third-party defendant moves pursuant to CPLR 3211 to dismiss the third-party complaint on the grounds that it fails to set forth a cause of action, and, alternatively, the third-party claim is barred by the exclusivity of remedy provision of the applicable workers’ compensation law, the Longshore*557men’s and Harbor Workers’ Compensation Act (hereinafter LHWCA) found at 33 USC § 901 et seq. A prior motion to dismiss the third-party complaint was made before Justice Norman Wolf. That court granted the motion with leave to replead without reaching the questions presented herein, i.e., whether a cause of action based on an <mask> of workmanlike performance exists on behalf of a ship repair company against a vessel, and whether 33 USC § 905 (b) precludes an action against a shipowner/employer.


In view of the foregoing, it is clear that the housing merchant <mask> statute only applies to contracts or agreements for the sale of new homes. (See, Pitcherello v Moray Homes, supra.) Consequently, since the instant action did not involve a sale and passing of title, plaintiffs’ claim is not governed by the housing merchant implied warranty statute or its notice of claim and Statute of Limitations provisions. (See, Chan v Rose Constr. Corp., supra.) Rather, plaintiffs’ claim is governed by CPLR 213 which provides a six-year Statute of Limitations for a cause of action for breach of a construction contract which began to run upon the completion of the contract on May 1, 1992. (See, State of New York v Lundin, 60 NY2d 987, 988 [1983]; Sears, Roebuck & Co. v Enco Assocs., 43 NY2d 389 [1977]; Chan v Rose Constr. Corp., supra; Hart v Moray Homes, 158 AD2d 890 [3d Dept 1990].) This means that plaintiffs had until May 1, 1998 to commence the instant action against defendants. Since plaintiffs commenced the action on October 10, 1997, the action is timely.


In this tenant-initiated code enforcement proceeding to direct the landlord to remove conditions constituting violations of the Housing Maintenance Code (Administrative Code of City of New York § 27-2001 et seq.), Civil Court properly invoked Real Property Law § 234 in awarding attorneys’ fees to the prevailing tenants. The leases contained a standard attorneys’ fees provision, so that landlord is deemed to have agreed to pay tenants their reasonable attorneys’ fees incurred "as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease[s]” (Real Property Law § 234). Since the conditions giving rise to the proceeding clearly constituted a breach of the express warranty of habitability stated in the leases, as well as a breach of the <mask> of habitability (Real Property Law § 235-b), landlord was in default of its covenant to provide habitable premises and tenants are entitled to recover the reasonable attorneys’ fees incurred by them to enforce that covenant.


Global moved to strike Nghiem's petition, asserting that both claims were barred by limitations. Global argued that Nghiem's <mask> claim was actionable only under the DTPA and that its two-year statute of limitations applied.7 Nghiem agreed that his negligence claim was barred but argued that his implied warranty claim was under the common law, not the DTPA, and the residual four-year statute of limitations applied.8 The trial court agreed with Global, struck Nghiem's petition, and severed its order, making it final and appealable.9


Whether an easement by representation and estoppel was made to any of plaintiffs must be separately determined with respect to each plaintiff. (White v. La Due & Fitch, Inc., supra.) The estoppel upon which an easement by representation rests was originally conceived of as preventing application of the <mask> or the parol evidence rule (Trenton Banking Co. v. Duncan, 86 N. Y. 221; Newman v. Nellis, 97 N. Y. 285; White v. Manhattan Ry. Co., 139 N. Y. 19; Norton v. Ritter, 121 App. Div. 497) but in some cases has been stated as an estoppel to deny the truth of representations made (White v. La Due & Fitch, Inc., supra; Bimson v. Bultman, supra; Turner v. Howard, supra) or an estoppel to deny the existence of an easement (Civic Assn. at Roslyn Country Club v. Levitt & Sons, supra; see Phillips v. West Rockaway Land Co., supra). It is not necessary in the instant case to ascertain the difference, if any, in these concepts or to consider whether defendants’ failure to plead the Statute of Frauds places the matter on the basis of oral contract only and obviates the necessity of showing all the elements of estoppel, for as hereinafter stated, the court finds all the elements of estoppel to exist. Any representation, whether by map (Phillips v. West Rockaway Land Co., supra), by advertising, or by oral representation (White v. La Due & Fitch, Inc., supra), made to the particular plaintiff may give rise to an estoppel to deny existence of the easement. With respect to the purchasers from Sea View Estates, the court finds that no representation of the nature claimed in the complaint was made to Lomen, orally or otherwise, but that representations were made to plaintiff Blanke that “ all the other plots in the area [would] be strictly for houses ” and that the community beach ‘ ‘ was going to be the only beach and * * # the rest of it was going to be only houses ”. As to Blanke, the testimony thus sustains an easement by representation, and Sea View having failed to answer the complaint, plaintiff Blanke is entitled to a judgment declaring any plot now owned by Sea View subject to an equitable restriction limiting its use to houses. While Cameo Interests also failed to answer the complaint, it is not necessary to consider testimony of purchasers from Cameo since none are plaintiffs in this proceeding.


*654on motion, as the issues should be resolved after a trial. On appeal, the Appellate Division affirmed in a memorandum opinion (1 A D 2d 844) and stated: “ Although we express no disagreement with the disposition of the motion at Special Term, insofar as it involved the defense of res judicata, pleaded in appellant’s answer, we call attention to the fact that the motion to dismiss, having been made on the pleadings, could not have been granted in any event, on the basis of the allegations contained in that defense which are deemed controverted by traverse or avoidance as the case requires. (Civ. Prac. Act, § 243; Gracie Square Realty Corp. v. Choice Realty Corp. 305 N. Y. 271, 278; Lipkind v. Ward, 256 App. Div. 74, 75.) The defense asserting the <mask> was properly before the court on the motion by reason of the admission in respondent’s bill of particulars that the contract alleged in the complaint was oral. The motion was properly denied, despite that defense, for the reasons stated at Special Term.” The Statute of Frauds must be pleaded in order for defendant to avail himself of it on a trial.


The discussion between the parties prior to the settlement of the infant’s action was not a novation extinguishing the original debt and comes within the <mask> (Healy v Brotman, 96 Misc 2d 386). Since there is no lien, common-law or statutory, for a doctor’s medical services (Marsh v La Marco, 75 Misc 2d 139), the plaintiff’s claim is limited to the assignment in question.


Davis, P. J.: All allegations of fraud or imposition on the appellant, in procuring the instrument of 6th of August, 1869, having been distinctly withdrawn during the trial (as appears at fol. 202 of the case), that paper stood, as the court then remarked, unimpugned and upon its legal effect. It was upon this instrument that the learned judge, at Special Term, predicated the defendant, Alcott’s liability, as surety for plaintiff, to the defendant Wehrum. The instrument recited that Alcott had become, and was, security foi the payment of the sum of $2,000 to the defendant Wehrum, on *251the 1st of May, 1870, and provided that Lockwood should hold the mortgage of Kreitz, as an indemnity to Alcott upon his liability as such. It was signed and sealed by both the principal and surety. This was, in our opinion, sufficient to take the promise of Alcott out of the operation of the <mask>. The reasons given by Beady, J., in his opinion at Special Term, are quite satisfactory to us on this point, and we adopt them as expressing what we deem to be the law.


The fourth cause of action requests the imposition of a constructive trust. It is true that where a testator has received property from others, now deceased, equity will intervene under certain circumstances to declare the surviving testator a trustee in order to carry out a promise on the strength of which the property has been received (Trustees of Amherst Coll. v Rich, 151 NY 282). However, even though the <mask> will not prevent the court from imposing a constructive trust, nevertheless, decisional law requires clear evidence of the existence of a promise, either express or implied, and such a promise is not established simply by showing a confi*645dential relationship exists between the persons involved (Oursler v Armstrong, 10 NY2d 385).


But it is clear (as expressed in 56 N. Y. Jur., <mask>, § 54, pp. 97-98) that: “ While forbearance may be good consideration for a contract in general, a promise made by one person to pay the existing debt of a third person is not rendered independent of the original obligation so as not to be within the statute of frauds, by the mere fact that it is based upon the creditor’s forbearance to sue the debtor or upon the dismissal of a suit which the creditor had instituted against the debtor, because in such cases forbearance consists only in harm to the promisee whereas a consideration moving to and beneficial to the promisor is required to make an oral promise enforcible under the statute of frauds. ’ ’


The contention of the learned counsel for the plaintiff is, that the agreement before mentioned was valid and effectual to afford the relief sought. This action is, in its nature, one for specific performance of that agreement. The mutual promises of the.two brothers constituted the only consideration for the agreement, and that was sufficient. But the sufficiency of consideration does , not necessarily render the agreement valid. We shall assume that the plaintiff is entitled to the relief, if the agreement, as made, imposed on the parties to it any legal obligation to observe and perform its provisions. The parties then owned real and personal .property amounting in value to about $100,000, and Weils Gooding continued to own his portion of it to the time -of his death. This' agreement on the part of Wells Gooding was, that on his death the plaintiff, if his survivor, should take by devise and bequest all his property, subject only to the bequest of $10,000 to the sister. This, in practical effect, was an agreement to sell the property and to vest title in that particular manner. It was within the <mask> and void, and unless there was such part performance as to bring it within the rule which supports the right in such cases to enforce performance, it is difficult to see any-right of action in the plaintiff. Nothing can be regarded as requisite part performance to take such agreement out of the operation of the statute of frauds, which does not place the party seeking relief in a situation which is a fraud *150upon him, unless the execution of the contract be required in his behalf and for his protection. (2 Story’s Eq. Juris., § 761.; Phillips v. Thompson, 1 Johns. Ch., 149 ; Parkhurst v. Van Cortland, 14 Johns., 15, 35; Wheeler v. Reynolds, 66 N. Y., 227; Winchell v. Winchell, 17 N. Y. Weekly Dig., 104; Levy v. Brush, 45 N. Y., 589; Dung v. Parker, 52 id., 494.


The action is predicated upon an alleged joint venture between plaintiff and the defendants Berfond and Bae to impress a trust upon real estate owned by the defendants or some of them and for an accounting. The answer is a general denial with separate defenses of the <mask>. Plaintiff objects to defendants’ notice of examination of plaintiff at defendants’ attorney’s office, which is improper (Schatzkin v. Schatzkin, 278 App. Div. 934; Schulsinger v. Cowles, 7 Misc 2d 411), and defendants make the objection that only 12 days’ notice by mail was given of the examination, which is a mere irregularity (Valz v. Sheepshead Bay Bungalow Corp., 249 N. Y. 122; Civ. Prac. Act, §§ 105, 109) which the court may correct by setting the time of examination (Isenburger v. Arrowhead Mills, 212 App. Div. 121).


An interesting contention presented by counsel for the administrator is that, the applicable provision of section 31 of the Personal Property Law (subd. 7), having voided the alleged oral agreement to bequeath a legacy, likewise, also bars the award of any quantum meruit. It is true that the instant case does involve the'issue as to whether, in an instance dealing with an alleged contract (as distinguished from quasi-contract), unenforcible because of a provision of the <mask>, even though the claimant has proceeded on the theory of an express contract, her claim, to the limited extent of a quantum meruit, may be recognized and allowed. Oases, generally of this type, dealing with the above-mentioned statutory provisions of section 31 of the Personal Property Law (subds. “ 1 ”, “ 7 ”) and cited in this connection are Matter of Quigley (179 Misc. 210); Matter of Ditson (177 Misc. 648); Matter of Block (258 App. Div. 342); Laing v. Mallory (277 App. Div. 824); Meltzer v. Koenigsberg (99 N. Y. S. 2d 143, affd. 277 App. Div. 1050, affd. 302 N. Y. 523); Bayreuther v. Reinisch (264 App. Div. 138, affd. 290 N. Y. 553); Matter of Lettner (112 N. Y. S. 2d 540); Matter of Douglas (169 Misc. 716, affd. 256 App. Div. 1070) and Kenny v. Brieger (196 Misc. 85).


*261Whether the shrewd language; used in the last clause of the stipulation was purposely designed to lull the defendant’s counsel to sleep without awakening him to the condition of his pleading in the case at bar, I am unable to say; suffice, however, that the fact remains if my interpretation of the stipulation be correct. It would be a loss of: time to enter upon a discussion of the question that in order that the defense of gambling be available it must be pleaded. The rule is well settled, and the Court of Appeals has said in a case involving the <mask>: “ The 'Statute of Frauds is a shield which a party may use or not for his protection just as he may use the Statute of Limitations, the statute against usury, that against betting and gaming, and others that might be mentioned. I take it to be a general rule of universal application that the statutes last mentioned are not available to a party unless specifically pleaded, and there is no reason for making the Statute of Frauds1 an exception to the rule.” Crane v. Powell, 139 N. Y. 388; Matthews v. Matthews, 154 id. 291. In view of the fact that the defense of gambling has not been interposed by the answer in the case at bar, and in view of the fact that defendant, by the language of the stipulation of facts, receives no aid in such defense in this action, I am forced to the conclusion that plaintiff is entitled to judgment for the full amount claimed. I, therefore, award judgment for the plaintiff for the sum of $875 and interest; and let judgment be entered accordingly.


*305With respect to the second argument urged in support of the motion to dismiss, it is to he noted that the complaint alleges that defendant Sylvia Altman, as well as her husband, represented to plaintiff that the husband was the sole owner of the subject premises and that the wife acquiesced in and ratified the alleged agreement; further, that plaintiff relied upon the aforesaid representations. If the foregoing allegations are established as true, then the wife would be estopped from successfully raising an objection under the <mask> that she neither signed the instrument nor authorized her husband in writing to do so on her behalf (Joehl v. Tricarico, 271 App. Div. 898 [2d Dept.]; Levy v. Rothfeld, 271 App. Div. 973). The case of Redlark Realty Corp. v. Minkin (306 N. Y. 762) and cases of similar import, cited by defendants, are distinguishable from the instant case. Here, unlike the afore-mentioned cases, the agreement which is the gravamen of the action, is not oral but is in writing. This case properly involves an issue of estoppel, whereas in the cases cited by defendants the doctrine of estoppel was not validly applicable to the issues raised therein.


Defendant AT&T moves respectively, pursuant to CPLR 3211 (subd [a], pars 5, 7) and CPLR 3212, for an order dismissing the complaint on the grounds that (1) it fails to state a cause of action, (2) the cause of action alleged may not be maintained by reason of the <mask>, or, alternatively, (3) defendant is entitled to summary judgment.*


Hext, as to the right of the defendant to invoke the protection of the <mask> under his answer, pleading a general denial, without referring to the statute. The plaintiff urges that the objection that the statute is applicable has been waived by the defendant because it is not pleaded in his answer; and cites Porter v. Wormser, 94 N. Y. 431, to sustain his contention. In that case (on page 450) Judge Andrews, says: “The general rule is that the defense of the statute of frauds must be pleaded, except where the complaint on its face discloses a case within the statute. It cannot be doubted that if the defendants had brought an action to recover a balance claimed to *326be due on the contract for the purchase of the bonds, without disclosing whether the contract was oral or written, the plaintiff would have been bound to plead the statute, to avail himself of its protection.” The language of the court certainly sustains the claim made by the plaintiff’s counsel; but, in considering its application, it must be limited to the circumstances of the case in which it was employed. The action was by bill in equity to open and review an account of transactions in the purchase and sale of stock and government bonds. The complaint, in substance, alleged the existence of a contract for the purchase of the bonds, and sought to avoid the loss charged thereon, “on the ground of fraud in the inception of the contract.” The allegations of the complaint implied the existence of a legal contract, and did not impeach it as void under the statute; and the court properly held that “the plaintiff, having become an actor, and brought an action to impeach the account on grounds which implied the existence of a formal contract, is not in a position to question the validity of the contract under the statute;” citing Cozine v. Graham, 2 Paige, 177; Vaupell v. Woodward, 2 Sandf. Ch. 148; 2 Story, Eq. Jur. § 755. An examination of these authorities show the ground upon which the decision-in Porter v. Wormser, supra, was made.


Interesting questions are also raised by. the appellants’ claim that the contract in suit was not assignable, and that the plaintiff cannot recover upon the. theory of his employment, in place of the contracting firm which assigned the contract to him, because such employment is not pleaded in the complaint, and because, if pleaded, it would be open to the defense based upon the <mask>; but, in view of our decision upon the point above discussed, we are not called upon to determine the other questions raised.


An agreement to share the proceeds of a lottery is a valid and enforceable agreement (see, Johnson v Johnson, 191 AD2d 257; Yates v Tisdale, 3 Edw Ch 71; see generally, Annotation, Enforceability of Contract to Share Winnings from Legal Lottery Ticket, 90 ALR4th 784). An oral agreement to share proceeds that will be paid over a period of several years does not contravene the <mask> (see, Pando v Fernandez, 118 AD2d 474; 90 ALR4th, op. cit., at 797-798). The oral agreement of the co-workers was sufficiently definite to be enforced (see, Pearsall v Alexander, 572 A2d 113 [DC Cir]), and the court erred in concluding that the co-worker who pur*1028chased the winning ticket was under no legal duty to share the proceeds. Moreover, there is no evidence in the record of donative intent. It is undisputed that the co-worker acted pursuant to the oral agreement.


So far as the sharing of Mansfield’s “free goods” is concerned, the defendants deny the existence of any joint venture with respect to Mansfield and further deny that they have breached any obligation — fiduciary or contractual — which they might owe the plaintiffs. In addition various affirmative defenses were asserted by the defendants: the agreement to control the output of Mansfield is said to be illegal and contrary to public policy; the absence of Mordu Hasday as a party plaintiff is alleged to constitute a fatal defect in that he was a partner in Dixie until May, 1946, when he was replaced by the plaintiff Joseph Hasday as a partner; it is urged that the alleged original oral agreement for a joint venture with respect to Mansfield was merged in and superseded by the above-described letter of March 21,1946, which limited to one year the arrangement with respect to the ‘ ‘ free goods ’ ’; and as a further defense it is asserted that with respect to that portion of the alleged joint venture not comprehended within the written letter of March 21,1946, the <mask> is a bar.


I will remark here, that in looking carefully into all the evidence, I am constrained to the belief that the only reason which influenced the defendants in refusing to perform the contract was, that the rifles had nearly doubled in value from the time the contract was made until the time they were to be delivered. After the testimony was nearly closed a motion was made to dismiss the complaint, upon the ground that there was no consideration passing in the contract, and “ that the contract was a mere nudum pactumthe motion was granted. Notwithstanding this, I am satisfied after a careful examination of the statute, and of all the American and English authorities on the subject, there was error in dismissing the complaint. The contract as stated above, was a full compliance with the requirements of the statute, and upon the facts presented the plaintiff was entitled to recover. It will be conceded that before the passage of the <mask>, a verbal contract between parties for any amount whatever was good. This being so, the statute simply altered the common law in this respect, that it merely requires for greater certainty, that a memorandum of the contract should be made in writing.


The court is not concerned upon a motion such as this with the merits of the litigation or with the possibility that the proof at the trial may fall short of establishing as facts what are now mere allegations in the complaint. (Denihan Enterprises v. O’Dwyer, 302 N. Y. 451, 458; Lefler v. Clark, 247 App. Div. 402, 404; Vernon v. Vernon, 4 Misc 2d 776; Guarino v. Guarino, 3 A D 2d 889.) The question is not whether in a given case a plaintiff can produce facts tending to obviate the objections but whether he should not at least be given an opportunity of doing so. I believe such an opportunity should be available. (Piccione v. Schultz, 198 Misc. 876; Matter of Klausner, 192 Misc. 790; McCormack v. Halstead, 132 Misc. 916.) The <mask> bars the remedy, not the right. (Bayles v. Strong, 104 App. Div. 153, affd. 185 N. Y. 582.)


The requirements of the Statute of Wills are highly peculiar. This statute stands in some respects only in the same category with such enactments as the <mask> and its prototype, the French Ordormance de Moulms of the year 1566. These enactments nevertheless required, in almost every instance, a substantial compliance with the direction prescribed. But the Statute of Wills refers to unilateral act only. Without adherence in every respect to the'directions prescribed by statute, a unilateral act of a party may have no validity whatever. When a unilateral act is of a gwcm-public character, and a will is such, the state universally prescribes with particularity the formalities requisite for the authentication or validity of the act itself. The reason why the requirements of the Statute of Wills demand implicit obedience is that, as an act of testamentation is unilateral and to take effect after the death of the chief actor, it is peculiarly exposed to fraud, simulation, or even forgery. Therefore it is, that for the making of wills special forms were required by law. The forms prescribed are then closely obligatory in order to give validity to the act. The motive of the legislative requirement may be, and in the instance of testamentation is, no doubt, corroboration or authentication, and to prevent fraud. In the instance of a testamentary act it may be stated generally as a rule of law that, *217without adherence to the prescribed forms, the act itself has no juridical value whatever. The Statute of Wills does not impose forms with a view to the convenience of the parties, and their omission is consequently not optional or immaterial, but the forms themselves" go to the very essence of the legal act. It is an error to regard such directions as mere technicalities, for they are founded on the highest public policy, and a noncompliance is fatal to the validity of the act attempted.


The plaintiff alleged in his complaint that the appellants Jean Fashions, Inc. (hereinafter Jean Fashions), and liana Knitting, Inc. (hereinafter liana), were liable to him for rent payments due under the terms of a five-year lease. We find that the complaint should have been dismissed as to Jeans Fashions since a purported assignment of the lease to it by liana was not in writing and therefore was void under the <mask> (see, Geraci v Jenrette, 41 NY2d 660; Otiniano v Magier, 181 AD2d 438; General Obligations Law § 5-703 [1], [2]). In addition, we conclude that liana submitted sufficient evidence to establish the defense that its surrender of the lease was accepted by the plaintiff (see, eg., Centurian Dev. v Kenford Co., 60 AD2d 96). In view of the plaintiff’s failure to dispute this evidence, there are no triable issues of fact, and summary judgment dismissing the complaint against liana should have been granted (see, Zuckerman v City of New York, 49 NY2d 557).


While the <mask> was not pleaded as an affirmative defense in the answer (see Civ. Prac. Act, § 242, and McKenna v. Meehan, 248 N. Y. 206), nevertheless, its defense is available to the defendants. As was said in Goldberg v. Cohen (110 N. Y. S. 185): “It was not necessary in this case for the defendants to plead the statute of frauds, inasmuch as the complaint on its face disclosed a cause of action within the statute ’ ’. Hence, if plaintiff can at all recover it would have to be under the written instrument only.


*370First, it is clear that one party to a transaction, even though authorized to do so, cannot be the agent of the other party to sign the memorandum of a contract which falls within the provisions of the <mask> (Restatement, Contracts, § 213, subd. [1]; Wilson v. Lewiston Mill Co., 150 N. Y. 314; Dorian Holding & Trading Corp. v. Brunswick Term. & Ry. Securities Co., 230 App. Div. 514, affd. 256 N. Y. 674).


The reports of judicial decisions in the state of New Jersey are silent, with respect to the meaning of the words “signed” and “signature,” in the statute of 1851, of the word “ signed ” in the statute of 1850, and of the same word in the statute of 1714. The last named act (1 Laws of New Jersey, 7) provided *422that wills should be in writing and should be “signed” by the testator. When that act went into operation, the <mask> (29 Charles II., ch. 3) was nearly forty years old. That statute had prescribed, by its fifth section, that all devises and bequests of lands should be “in writing and signed by the parties so devising the same and should be “ attested and subscribed by three or four credible witnesses.” As early as 1680, the Court of King’s Bench decided that, within the meaning of § 5, the position of the testator’s signature was immaterial (Lemayne v. Stanley, 3 Lev., 1). It was held by all the Judges that the words “ I, John Stanley,” written by John Stanley himself in the exordium of his will, constituted a valid signature “ within the statute, which does not appoint where the will shall be signed, in the top, bottom or margin, and, therefore, a signing in any part is sufficient.”


On the other hand, the tenant alleges that it took possession under an oral lease for 10 years from September 1, 1963 to August 31, 1973, at an annual rental of $7,800 plus an annual charge of $100 for gas and water together with the obligation to maintain at its own expense one half of the building and one of two elevators (the leased premises). The tenant argues that *460part performance saves the 10-year oral lease from the proscription of the <mask> under subdivision 4 of section 5-703 of the General Obligations Law; and further that the common-law doctrine of “ equitable estoppel ’’should be invoked to defeat this proceeding.


It is contended by the counsel for the appellant that, as the guaranty was a promise to answer for the debt of another, it was necessarily put in writing to satisfy the requirement of the <mask>, and parol evidence of such consent and waiver is inadmissible. This case was before us on a former appeal, and it was then held that the reception of parol proof, tending to show such consent and waiver subsequent to the making of the guaranty, was not error. (MS. opinion of Bradley, J., Jan. Term, 1885.) We adhere to that ruling.


Although the court concluded that its finding regarding the <mask> applied to all causes of action alleged in the complaint because all of them were derivative of the contract claims, it also addressed defendants' other arguments. It rejected Diesel/One Race's and Revolution's arguments regarding the purported insufficiency of the allegations to support the breach of oral contract, breach of implied-in-fact, and declaratory relief causes of action. The court agreed, however, with Revolution's argument regarding the inadequacies of the allegations of intentional interference with contractual relations, and sustained Revolution's demurrer to that cause of action on this ground (as well as on the statute of frauds ground).


. This provision of the statute was not intended to change the law requiring a consideration for a contract not to claim dower, but apparently' only to change that rule of law which avoided contracts between parties intending marriage by the marriage itself, so that now an ante-nuptial agreement solely between the parties contemplating marriage could be enforced after • and notwithstanding the marriage. Such construction has recently been given to this section by this General Term in Brown v. Conger, Executor, etc., where it was held that this section did not repeal or alter that portion of the <mask> which requires such contracts to be in writing.


The principle is well established, however, that this doctrine does not apply where, as in Daly , Whittom , and other cases, "the two theories sought to be submitted in the case ... [are] not truly inconsistent." See id. at 204. We find that to be the case here. It was proper under Rule 55.10 for Respondents to submit the <mask> defense to Franklin Farms' breach of contract while at the same time submitting its own breach of contract claim. We do not find these to be inconsistent theories that would require Respondents to abandon one or the other under the election of remedies doctrine. Point denied.


The <mask>, as memorialized in Civil Code12 section 1624, sets forth several categories of contracts that "are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent." ( § 1624, subd. (a).) The defendants contend, and the trial court found, that the contract at issue in this case falls within the category described in subdivision (a)(1), i.e., "[a]n agreement that by its terms is not to be performed within a year from the making thereof." ( § 1624, subd. (a)(1).)


An invoice between merchants containing the names and addresses of the buyer and seller, the date, the payment terms, the price of the goods, a description of the goods, the amount of the goods and the total price of the sale constitutes a writing in confirmation of a contract for the sale of goods satisfying the <mask>, provided that no written notice of objection is given as to the contents of the invoice within 10 days of receipt (see UCC 2-201 [1], [2]; B & R Textile Corp. v Domino Textiles, 11 AD2d 539 [1980]). Glatt did not deny receipt of the fish or the invoices, or allege having made a written objection thereto; nor was there any claim that payment had been made. By establishing that the parties had a contract and that Glatt owed money on the contract, plaintiff made out a prima facie case on its cause of action for breach of contract as against Glatt. It was therefore incumbent upon Glatt to proffer admissible evidence sufficient to raise a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]; Freedman v Chemical Constr. Corp., 43 NY2d 260 [1977]).


Permission will be granted, however, to replead again the second cause of action only. A cause of action properly pleaded on the theory of quantum meruit is not barred by the <mask> but the second cause of action contained in the second amended complaint is obviously based upon the oral contract. In serving a new complaint, the plaintiff should not include any allegations upon which evidence could not be offered at the trial. The plaintiff could not, for instance, ‘ ‘ rely on the contract as evidence of the value of the services ” where the oral contract is barred by the statute (Parver v. Matthews-Kadetsky Co., 242 App. Div. 1, 3). (See, also, Erben v. Lorillard, 19 N. Y. 299.) Therefore, the allegation contained in paragraph “ 14 ” of the second amended complaint 1 ‘ which defendant promised and agreed to pay ” should be excluded.


Contrary to the defendant’s contention, the trial court did not improvidently exercise its discretion in denying his motion to amend his answer to include the affirmative defense that the plaintiff’s action was barred by the <mask> (see, General Obligations Law § 5-701). The loan agreement was fully capable of being performed within one year and, therefore, was not covered by the statute (see, D & N Boening v Kirsch Beverages, 63 NY2d 449; North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 175; Mann v Helmsley-Spear, Inc., 177 AD2d 147). Thus, the proposed amendment was devoid of merit (see, Crimmins Contr. Co. v City of New York, 74 NY2d 166; Nasuf Constr. Corp. v State of New York, 185 AD2d 305; Brown v Samalin & Bock, 155 AD2d 407; Right Turn v Sloan, 88 AD2d 889).


Once again, the trial court sustained the demurrers with leave to amend. It found that Zakk's allegations that he was not fully compensated for his work on the original xXx film were insufficient to allege estoppel to assert the *442<mask> because he failed to allege facts showing that he provided services of an extraordinary or exceptional character. The court explained, "[s]tated differently, Plaintiff fails to allege facts why estoppel should be applied to permit enforcement of the alleged contract instead of Plaintiff being required to pursue a quantum meruit claim." Based upon this finding, the court sustained the demurrers to all causes of action, but granted Zakk leave to amend, including leave to add an alternative quantum meruit claim. Although the court found that all causes of action were barred by the statute of frauds, it also specifically addressed, and rejected, Revolution's argument that Zakk failed to allege sufficient facts to state a claim for intentional interference with contractual relations.


In ascribing a motive to the legislative terminology, one text has set forth their opinion that “ subscribed ” means signing at the end of a document in the following language: “ Presumably the underlying purpose of the legislature in requiring that a memorandum be ‘ subscribed ’ is the same as that in the case of wills, which must be subscribed by a signature at the end of the document, namely, to prevent fraud through insertion or additions to a writing subsequent to its execution ” (56 N. Y. Jur., <mask>, § 220).


In the first cause of action, the Plaintiffs allege a claim against the defendant, Corpus Christi Church, for breach of the employment agreements between the Plaintiffs and the church. Except for the prior grounds that this court has no subject matter jurisdiction over this religious dispute based on the First Amendment, the defendant has not established that the first cause of action in the complaint fails to state a cause of action nor that the <mask> bars this claim. If this court had subject matter jurisdiction of the dispute (which it has been determined this court does not), then the motion by Corpus Christi Church to dismiss the first cause of action for breach of contract would be denied.


The cause of action based on the December 9, 1957 contract, even on plaintiff’s version of the facts, would have been, in any event, dismissible on the ground of the <mask>. The contract covers a period of three years and obviously falls within the statute (Personal Property Law, § 31). To comply with the statute it was necessary that there be a memorandum setting forth the essential terms of the agreement signed by the party to be charged — the restaurant corporation. Assuming that Moskowitz signed the contract, plaintiff’s authority to affix the corporate name and to fill in its essential terms depend entirely upon parol testimony offered by plaintiff.


Such a cause of action would not necessarily be grounded in breach of oral contract and in the opinion of this court would not be barred by the <mask>. But, even assuming that plaintiff intended to plead a breach of oral contract, whether such a contract in enforcible under the Statute of Frauds should not generally be determined summarily, but at the trial. There would then be here “ a controversy as to the existence, the content and effect of the oral agreement * * ® best determined upon a trial of the issues” (Jacobson v. Jacobson, 268 App. Div. 770). Accordingly, the motion is denied.


Here, the written contract is composed of two documents: the terms and conditions to which Freeman agreed when it bid on the property and its electronic bids.2 Notwithstanding these terms, Freeman argues that the contract fails to satisfy the <mask> because all essential terms of the contract are not reduced to writing. On appeal, it advances two primary arguments in support of reversal, asserting that the terms and conditions did not identify FNBC as the seller and that the terms and conditions did not include the offer-and-acceptance agreement.


When the casein 32 New York, 630, arose and was decided the act of 1849 was in force, and if the court had been of the opinion that the third clause of the <mask> had been repealed, the learned judge delivering the opinion would not have been permitted to assert, without some of the members of the court dissenting from the proposition, that marriage alone did not constitute a valid consideration for a contract. '


In Blakeley v. Agency of Canadian Car & Foundry Co. (73 N. Y. S. 2d 573, 574, 575, affd. without opinion 272 App. Div. 1001) the action was brought to recover for services performed by plaintiff’s testator for the defendant who, under an oral agreement with the defendant, was to be paid for services rendered as an officer and director of the defendant out of the award for damages arising from the destruction of its plant and business by agents of the German Government in 1917 “when, as and if” such award was made. The award was made in 1941. The court in holding that the contract was not within the <mask> said: “Here, the award might have been made and the contract performed within a year, even though the contingency seemed unlikely and even improbable. There did exist possibility of performance in law and in fact. That is sufficient. The circumstance that the award was not actually made within the year is not controlling. It does not render the agreement void and unenforceable.”


We agree with the IAS Court that when viewing the writings collectively, issues of fact exist with regard to material terms of the agreement and as to whether there was a meeting of the minds to formulate a valid contract, such as: what services Khazzam actually performed; whether he merely introduced Manzke to Shearson (i.e., a "finder”) or whether he performed marketing services for the fund; what Khazzam’s role was after the fund was launched; whether Khazzam was entitled to compensation for the life of the fund *518or a shorter period; and whether Khazzam would be compensated based on "revenues” or "fees” and the parties understanding as to the definition of these terms, all of which are matters to be resolved at trial and which precludes summary judgment dismissing the <mask> affirmative defense (see, e.g., Berne Investors v Wechsler, 152 AD2d 804, 806; Shapiro v Dictaphone Corp., 66 AD2d 882, 884). Concur— Rosenberger, J. P., Asch and Tom, JJ.


*412The promise to pay for this work was by parol; and it being a promise to pay the debt of another, it was void by the <mask>, unless it can be brought within the exceptions which take some such promises out of the operation of that statute. As to the work done by the order of Quin, it appears that it was delivered, and an order drawn for it on the defendant. He then promised to pay for it when he paid for the work that was done by the order of Beach.


. Only one of the cases cited by respondent, City of New York v Turnpike Dev. Corp. (36 Misc 2d 704 [Sup Ct, Kings County 1962]), actually supports respondents’ position, but the court declines to follow it, in view of the Court of Appeals decision in Commission and the similar cases cited above. The other cases cited by respondents do not support their position, as they involved unsuccessful attempts to raise the <mask> by a party which was either not a true successor in interest to either party to the contract (Gracie Tower Realty Assoc. v Danos Floral Co., 142 Misc 2d 920 [Civ Ct, NY County 1989]), or a total stranger to the contract (Kaminsky v Abrams, 51 Misc 2d 5 [Sup Ct, NY County 1965]; Brooklyn Union Gas Co. v MacGregor’s Custom Coach, 122 Misc 2d 287 [Civ Ct, Kings County 1983]).


In their various motions, the Sellers advanced the theory that the formal bid process, as set out in the Bid Documents and Confidentiality Agreement, controlled all of the relevant negotiations and, thus, a formalized PSA was necessary to create a contract that was binding on them. Accordingly, the Sellers filed, among other motions for summary judgment,4 a motion they term the "Master Motion for Summary Judgment." The Sellers argued that LNO's contract claim was barred by the <mask>, that no enforceable contract for the sale of the Assets existed between the parties because there was no meeting of the minds or intent to be bound, that there were failures of conditions *38precedent, and that the alleged agreement was illusory. The Sellers also moved for summary judgment on the ground that the November 20, 2012 e-mail could not form the basis for a binding contract under the UETA because they did not agree to conduct business electronically and the e-mail lacked an electronic signature.


In Prokop (p. 574) the foregoing considerations were held to justify a refusal to charge that “ if the jury believe the plaintiff’s version that an agreement was made on September 22, but that plaintiff was to commence in the performance of that work on the following Monday, that they must find for the defendant under the <mask>.” Accordingly a judgment for plaintiff based on the jury’s verdict was unanimously affirmed.


The sole issue remaining' is the existence of an agreement and the appropriateness of the amount of the award. Delivery of a letter setting forth the fee and proof of receipt entitles the agency to a fee (see, Costello Assocs. v Standard Metals Corp., 99 AD2d 227, supra). While an agreement between an agency and an employee must be in writing, an oral agreement be*813tween an agency and an employer is enforceable and not subject to the <mask> (see, Career Blazers Agency v Corporate Graphics, 111 Misc 2d 47; see also, Howard-Sloan Legal Search v Todtman, Young, Tunick, Nachamie, Hendler & Spizz, 193 AD2d 404; Hunt Personnel v Hemingway Transp., 105 Misc 2d 626, 628). Further, where there is no express agreement as to the amount of the fees, the employment agency is entitled to recover on a quantum meruit basis (see, Career Blazers Agency v Corporate Graphics, supra, at 48) subject to the fee schedule set forth under subdivisions (5) through (9) of General Business Law § 185 (Career Blazers Agency v Corporate Graphics, supra, at 48-49; see also, Robert Half of N. Y. v Levine-Baratto Assocs., supra, at 170, citing Pilot Empl. Serv. v Afro Intl. Corp., NYLJ, Dec. 15, 1977, at 6, col 3 [App Term, 1st Dept]; Robert Half Personnel Agencies v Certified Mgt. Corp., supra, at 318).


*465In Schechner v. Zipser (89 N. Y. S. 2d 354, 355, affd. without opinion 277 App. Div. 843 [1st Dept]) the court said: “ The claim that the <mask> constitutes a good defense to the action because the writing sued upon does not state the consideration for the promise must be overruled. If the consideration had not been furnished in its entirety prior to the execution of the writing, the defendant’s contention would be sound. Barney v. Forbes, 118 N. Y. 580, 23 N. E. 890; Standard Oil v. Koch, 260 N. Y. 150, 183 N. E. 278. However, where, as here no part of the consideration was still to be furnished at the time of the execution of the writing, the memorandum satisfies the statute notwithstanding the fact that it fails to mention the past consideration. In Drake v. Seaman, 97 N. Y. 230, 234, the Court of Appeals said: ‘ It must show on its face what the whole agreement is so far as the same is executory, and remains to be performed, and rests upon an unfulfilled promise. ’ This language was cited with approval in Standard Oil v. Koch, supra, 260 N. Y. at page 154, 183 N. E. at page 156. ’ ’


The case of Schieffelin, v. Carpenter, 15 Wend. 400, does not conflict with this view of the subject. It was there decided that a parol agreement to give a new lease to a third person, with the consent of the tenant, did not amount to a surrender by operation of law, although such third persons took possession in anticipation of receiving such new lease, and the landlord received rent from them; as the agreement itself was adjudged void under the <mask>, it was held not to amount to a surrender; and besides, there was nothing done in that case inconsistent with the relation of landlord and tenant between the owner and the original lessees. The acts of all the parties were to be construed and qualified by a reference to the executory character of the agreement under which they acted, and their mutual expectation that a new lease would be given and received.


*799STEAMBOATS. INDEX. 799• SUPPLEMENTARY PROCEEDINGS. 1. In an action, by the owners of a steamboat, against the owners of another boat, for negligence producing a collision; the plaintiffs cannot recover as damages the probable loss of profits which they might have realized from a return trip from a place, whither their boat was bound when injured by the collision. Hunt v. The Hoboken Land Improvement Co., 144 2. It is error to charge a jury, that the statute of this state, requiring steamboats when meeting each other to turn to the right (or to starboard) “ does not apply to steamboats crossing the river." Id. 8. It does apply whenever the two boats meet, whether approaching each other upon courses either directly or obliquely opposed. Id. 4. The general law of navigation prescribes the same rule. Id. 5. When the course of one boat is at right angles to that of the other, the question of negligence depends upon the particular circumstances of the case, and not alone upon the question, which turned first, if, under the circumstances, the boat that first turned from her course, turned in the wrong direction. Id. STORAGE. See Bailment, 1, 2. SUBSCRIBING WITNESS. See Evidence, 10. SUMMONS. See District Courts, 29, 30. Marine Court, 2, 10, 34, 36, 45. SUPPLEMENTAL ANSWER. See Landlord and Tenant, 3. See Practice, Discovery, 43. , Sheriff’s Sale, 3, 7. SURETY. 1. A surety, in an action brought by his principal upon a money demand, may set up as a defence the recovery of a judgment against him, on his contract of suretyship. Hannay v. Pell, 432 2. Unless he has actually made some payment on account of his liability as such, a surety is not entitled to relief at law, and can only proceed in equity to compel the principal to make payment and the creditor to receive it. Id. 3. Yet, under the Code of Procedure, where the principal brings against the surety an action upon an account, in the form of an action at law, and the answer sets up the recovery against the surety of a judgment by the creditor and prays affirmative relief; the court, when it appears upon a finding of the facts by referees or otherwise, that the amount due on the account is less than the judgment, may adjudge that the plaintiff pay to the creditor the judgment deducting the amount so due from the defendant, and may provide that the payment by the defendant to such creditor, of the amount last mentioned, shall discharge the defendant from the plaintiff’s claim. Id. 4. Where the defendant, upon the plaintiff entering into a contract with a firm for his employment as a clerk, executed to him an agreement guaranteeing that his salary at certain rates agreed upon should amount to §15 per week; held, that the defendant’s agreement was not within the <mask>, and was valid although the consideration was not expressed therein. Douglass v. Jones, 551 5. The guarantor being a silent partner in the firm, the modification by another partner, acting for the firm, of the contract of employment with the


Hu answered the fourth amended complaint with a general denial and asserted numerous affirmative defenses to the contract claim. The cause of action for rescission, she alleged, "is actually a cause of action for breach of contract [and] has already been dismissed with prejudice." Hu averred that she and Guan had no contractual relationship, and that the alleged contract violated the <mask> and is illegal, void, and contrary to public policy. Hu further alleged that if a contract did exist, she had no duty to perform because she did not receive an instruction to sell the property; and, because Guan failed to perform, he repudiated the contract and breached the implied covenant of good faith and fair dealing.


As a general rule, an express provision contained in an agreement to have that agreement governed by the law of a particular jurisdiction will be honored. (See Freedman v Chemical Constr. Corp., 43 NY2d 260, 265, n.) However, in that same footnote, the Court of Appeals went on to say that, “[b]ut where, as with the <mask>, the issue arguably cannot be controlled by voluntary agreement, there is some question whether, in the absence of a reasonable basis for choosing the law of the jurisdiction designated by the parties, their choice of law will be honored (see Restatement, Conflict of Laws 2d, § 187, subd [d], par [a])”. That is “[t]he jurisdiction whose law the parties intended to apply, however, must bear a reasonable relation to the agreement (A.S. Rampell, Inc. v Hyster Co., 3 NY2d 369, 381); and the enforcement of the provision applying a foreign rule of law must not violate a fundamental public policy of New York (see 8 NY Jur, Conflict of Laws, § 24).” (See Gambar Enterprises v Kelly Servs., 69 AD2d 297, 303.)


It has been held by the Court of Appeals of this State that it is a principle, universally recognized, that the revenue laws of one country have no force in another, and that the exemption laws, and the laws relating to married women, as well as a local <mask>, are not recognized in another jurisdiction, under the principles of comity. Marshall v. Sherman, 148 N. Y. 26; Morgan v. Neville, 74 Penn. St. 52; Kelley v. Davenport, 1 Browne (Penn.), 231; Ross v. Wigg, 34 Hun, 192; Ludlow v. Van Rensselaer, 1 Johns. 95 ; Skinner v. Tinker, 34 Barb. 333; Waldron v. Ritchings, 3 Daly, 288; Seigell v. Robinson, 56 Penn. St. 19.


The defendant moves, pursuant to rule 102 of the Rules of Civil Practice, to require the plaintiff to serve an amended complaint in which the causes of action will be made more definite and certain, and, further, pursuant to rule 107, for dismissal of the first and second causes upon the ground that the contract there set forth is unenforcible under the provisions of the <mask>.


Plaintiff requests that we strike defendants’ affirmative defense of the <mask>. Although plaintiff never moved in Supreme Court for this relief, we exercise our authority on appeal (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112) to search the record and grant plaintiff partial summary judgment dismissing this defense because it is clear that it presents no material triable issue of fact (see, Glick & Dolleck v Tri-Pac Export Corp., supra, at 441).


Thus, according to the plaintiff, the consideration for the guarantee was his oral promise, definite in every respect, not to sue the principal debtor for 30 days upon condition that within such time the agreed weekly payments would be made to him. But the <mask> (Personal Property Law, § 31, subd. 2) requires that such a promise, being a consideration wholly executory and therefore contractual in nature, be stated in writing (Brodlie v. Fink, 275 App. Div. 1061). The written words “to * * * continue credit ”, even if read as meaning “ to forbear to sue ”, do not open the door to parol evidence of the specific agreement testified to hy the plaintiff concerning the duration of the period of forbearance and the condition upon which such forbearance would be predicated. Moreover, the oral agreement upon which the plaintiff relies is a distinct variance from the provisions of the written guarantee, which left the plaintiff free “ from time to time, in its discre*623tion, to * * * continue credit to Keystone ”. This reserved discretion to forbear from bringing suit, which ‘ ‘ from time to time ” might or might not be exercised by the plaintiff, is no firm commitment, not even a conditional one, not to sue for 30 days. Certainly no such commitment is inferable from the language of the written guarantee. The absence from that writing of a frame of reference into which could be fitted parol evidence concerning the terms of the oral agreement for continuance of credit is no mere ambiguity. Also, it is reasonable to believe that an agreement so specific as that here relied upon would have been included in the writing itself (cf. Mitchill v. Lath, 247 N. Y. 377; Fogelson v. Rackfay Constr. Co., 300 N. Y. 334).


In this court’s opinion the said contention may not be sustained. The aforesaid arrangement involved a new party and, as alleged, did not condition the discharge of the original debtors upon actual and full performance by the new promisor ; on the contrary, it provided for a present discharge of said original debtors. The assent of the original debtors to this arrangement was not required, nor was the validity of the *969same affected by the fact that a substituted performance (in the form of painting services) was called for thereunder. In this court’s view, said arrangement constituted a true novation and, as such, was and is a valid defense to the claim which the plaintiff now asserts against one of said original debtors. (See Schloss Bros. & Co. v. Bennett, 260 N. Y. 243; 6 Corbin on Contracts, §§ 1297, 1299, 1300.) And in this connection, it may also be noted that an action based on a novation is not subject to the defense of the <mask> contained within the provisions of section 31 of the Personal Property Law. (Claggett v. Donaldson, 238 App. Div. 831.)


- he had a relationship with USA Swimming and its personnel; - his relationship with USA Swimming created a conflict of interest vis-à-vis his representation of Knutson; - he would not litigate against USA Swimming, and he had shared that information with USA Swimming during his negotiations on behalf of Knutson; - he had refused to represent Schubert in litigation against USA Swimming because he believed that would create a conflict of interest; - he had told USA Swimming's executive director that he did not want the dispute between Knutson and USA Swimming "to escalate"; - making her story public or taking it to the press would be a bargaining chip for Knutson; - Knutson might have an independent claim against Schubert; - he did not believe she could prevail in litigation against USA Swimming due to the <mask>; *1093- USA Swimming had provided him with confidential information he had not shared with Knutson at USA Swimming's request; - he had told USA Swimming during the negotiations that Knutson was out of money; - the settlement agreement contained a release of Schubert and a confidentiality provision; - his representation that Knutson could reach the performance markers in the settlement agreement was not based on any independent research; - he had forwarded attorney-client privileged communications to USA Swimming during the negotiations for the settlement agreement; - he had withheld e-mails containing evidence of his conflicts of interest when Knutson requested her file from his office; and - Knutson might have been eligible for financial support through the Athlete Partnership Agreements or other sources without entering the settlement agreement. A substantial factor in Knutson's decision to enter into the settlement agreement was Foster's fraudulent concealment of the foregoing facts. The settlement agreement contained unattainable performance *486markers that led to the loss of financial support from USA Swimming and to feelings of despair, loss, and unhappiness. She suffered both economic and noneconomic damages as a consequence. Knutson's economic damages were her lost tuition and support benefits. Knutson's noneconomic damages were the emotional distress and pain and suffering she experienced due to the performance markers in the deal with USA Swimming.


However, as a practical problem, it is impossible for her to return to her room, and thus avail herself of the agreement which was made. Implicit in this agreement is an intention to create a charge on the property for this special use, which could only be performed at the property, although as is naturally to be expected from these two women unlearned and unversed in the intricacies of the law, nothing was said between them about a life estate or trust estate in the property for the benefit of the plaintiff. The court feels that a helpless person situated as this plaintiff is, should not be left without a remedy. However, the agreement made is rendered unenforcible by section 242 of the Beal Property Law, which requires that either of said estates be created by an instrument in writing, excepting however, trust estates created “by act or operation of law”. This is the same exception contained in the original <mask> enacted by Parliament in 1677 and it has been construed since that time, both by courts in England and in this country, to cover both resultant trusts, where the law implies a trust upon the basis of the actual or presumed intention of the settlor and *796the so-called “ wrong rectifying ” or constructive trusts, which are frankly created without regard to the intention of the parties and often in direct contravention of the intention of a wrongdoer, in order to prevent an injustice.


*362The <mask> is an affirmative defense that that the AutoNation Parties had the burden to plead and prove. See Duradril, L.L.C. v. Dynomax Drilling Tools, Inc. , 516 S.W.3d 147, 158 (Tex. App.-Houston [14th Dist.] 2017, no pet.). Though the AutoNation Parties pleaded this defense in their answer, they did not assert this defense in their summary-judgment motion. The AutoNation Parties' no-evidence summary-judgment grounds challenging the essential elements of Lindsey Construction's claims do not provide a basis for granting summary judgment based on the statute of frauds, which is an affirmative defense that may not be raised by the AutoNation Parties in a no-evidence summary-judgment ground. See Haven Chapel United Methodist Church v. Leebron , 496 S.W.3d 893, 904 (Tex. App.-Houston [14th Dist.] 2016, no pet.). The AutoNation Parties did not expressly present the statute of frauds as a ground in their summary-judgment motion; therefore, we may not affirm the trial court's judgment based on the statute of frauds. See Henkel v. Norman , 441 S.W.3d 249, 251 n.1 (Tex. 2014) ; Stiles v. Resolution Trust Corp. , 867 S.W.2d 24, 26 (Tex. 1993).


Secondly, the defendant maintains that the letters sustaining the contract do not constitute writing or memorandum sufficient to satisfy the <mask>. The court, however, finds that there is adequate written evidence of the undertaking signed by the defendant. Furthermore the court does not regard this as a contract for sale within section 85 of the Personal Property Law.


Contrary to the lower court’s ruling, the <mask> is not an absolute bar to a determination that occupant is entitled to a life estate. Although the statute of frauds generally prohibits the creation of “[a]n estate or interest in real property ... or any trust or power, over or concerning real property . . . unless . . . by a deed or conveyance in writing” (General Obligations Law § 5-703 [1]), there is an exception to the writing requirement “where there is part performance that is ‘unequivocally referable’ to an oral agreement” (Spirt v Spirt, 209 AD2d 688, 689 [1994]; see General Obligations Law § 5-703 [4] [“Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance”]). While the mere payment of money is not enough to constitute part performance, “other acts, such as taking possession or making improvements, when combined with the payment of rent, may be sufficient” (Tuttle, Pendelton & Gelston v Dronart Realty Corp., 90 AD2d 830, 831 [1982]).


Nor are we persuaded that defendants are entitled to specific performance of the oral agreement between Conklin and Urbanski based upon the doctrine of part performance. It is well settled that "[a] party’s partial performance of an alleged oral contract will be deemed sufficient to take such contract out of the <mask> only if it can be demonstrated that the acts constituting partial performance are ' "unequivocally referable” ’ to said contract” (Curanaj v Security Pac. Natl. Bank, 202 AD2d 856, 857, quoting Burns v McCormick, 233 NY 230, 234). Here, although defendants’ acts of planning and constructing the water storage tank could refer to the agreement they seek to enforce, i.e., Conklin’s alleged gift of real property, those acts are equally consistent *615with plaintiffs claim that defendants were obligated, in exchange for the conveyance of the parcel, to perform by supplying water to the remaining lands. We also reject defendants’ assertion that plaintiff should be equitably estopped from asserting the Statute of Frauds as a defense.


Since plaintiff contends that the contract obligated defendant to pay commissions so long as customers procured by him place orders with defendant, the <mask> applies. (Cohen v. Bartgis Bros. Co., 264 App. Div. 260, affd. 289 N. Y. 846; Martocci v. Greater N. Y. Brewery, 301 N. Y. 57; Zupan v. Blumberg, 2 N Y 2d 547.) While plaintiff as a commission salesman may be entitled to discovery of books and records for the purpose of computing damages, the question of damages will never be reached if memoranda sufficient to satisfy the statute do not exist. Accordingly, discovery will be allowed for the limited purpose of ascertaining whether a sufficient memoranda exists. For that purpose discovery may be had of the items designated (a), (b) and (c) above, but of books of account only as they relate to any account with reference to plaintiff maintained on defendant’s books. The foregoing is, of course, without prejudice to a further application should plaintiff, through discovery, be able to produce memoranda sufficient under the Statute of Frauds.


In Steiner v. Fenster (51 N. Y. S. 2d 814) the court granted plaintiff’s motion to strike out the defense of the <mask> in an action to recover for commissions based on an oral agreement appointing plaintiff as defendant’s sole and exclusive sales agent and distributor throughout the United States. The ¡agreement was to be ‘ for the duration of the war between the United States and Germany and/or Japan ”. The court said '(p. 815): “ At the time the contract herein was made, the end of the war between the United States and Germany and/or Japan was a possible event which might have transpired before the end of the year. The contract could, therefore, have been performed within the year and accordingly is not within the Statute of Frauds.”


In Storer v. Ripley (282 App. Div. 950) the court held that an oral agreement that the plaintiff should be a director of a corporation as long as he and a third person owned stock in ■the corporation was not within the <mask>. The court said (p. 951): “ The agreement was not one which, by its terms, did not admit of performance within one year. The stock, the ownership of which measured the obligation to continue the directors in office, could have been disposed of within one year; and the contract was thus possible of performance within that period and so not within the proscription of the Statute of Frauds (Personal Property Law, § 31, subd. 1).”


Here, Zakk's allegation that he fully performed his obligations under the alleged oral contract at issue is enough to avoid the <mask>. Therefore, in finding that Zakk's breach of contract and related claims were barred by the statute of frauds absent alleged facts showing defendants were estopped to assert the statute, the trial court erred. We also conclude the trial court erred in finding the third amended complaint was a sham pleading, and that the statute of limitations barred his quantum meruit claim. However, we conclude the trial court did not abuse its discretion in dismissing the promissory estoppel claim. Accordingly, we affirm the judgment to the extent it dismisses Zakk's promissory estoppel claim and reverse the judgment as to his remaining claims.


In the case of Schubert v. Bowman (9 Misc 2d 111, 112), the court, in denying defendant’s motion for an order dismissing the complaint in an action brought by a vendee for specific performance of an alleged contract for the sale of real property, stated: “ Prior to the decision rendered in Crabtree v. Elisabeth Arden Sales Corp. (305 N. Y. 48), the courts were not in agreement on the issue as to what documents could be considered in determining the existence of a contract or memorandum for the sale of real property meeting the requirements of the <mask>. That case flatly stated the law to be that writings signed or unsigned, provided that they clearly refer to the subject matter of the transaction, and may be so established by *750competent evidence, may be read together.” (See, also, Sokol v. Terry, 43 Misc 2d 168.)


The second separate defense will also be permitted to stand. In Smith v. Graham (279 App. Div. 1051), in what appears to have been a somewhat similar situation (although I do not have the complaint in that case before me), the court held that the defendant should not be given leave to plead the defenses of res judicata and the <mask>. Here, however, these defenses were pleaded at the outset. It is true, as the court pointed out in the cited case, that if the complaint “ be one in quantum meruit, the defenses have no logical place in the answer ’ ’ but added “ If on the trial it should appear that plaintiff is attempting to recover on the contract rather than for the reasonable value of his services, an amendment to the answer would be allowable to present appropriate defenses.” Because of the inclusion in this complaint of the words ‘ ‘ special instance and request ” and because it is possible that the plaintiff may directly or by indirection seek to import into the ease the contract he has tangentially alleged, I think it is safer and fairer to the defendants to let them have the full benefit of their affirmative defenses. They may need them at the trial, and their retention in the answer will serve as a clear reminder that plaintiff will not under any circumstances recover under any contract here,


The court is of the opinion that the agreement relied upon by the plaintiff was entire and indivisible and that defendant’s performance of a part thereof does not have the effect of taking it out of the <mask> and thus rendering enforcible that portion wherein plaintiff claims that defendant promised to pay her on demand the entire unpaid balance due on the mortgage if he failed to pay the monthly installments, thereby causing the bond and mortgage to be in default. The entire agreement was originally unenforcible and it is no less so as to the unperformed portion thereof. (De Beerski v. Paige, 36 N. Y. 537, 539; George v. Dobson, 261 App. Div. 447, affd. 287 N. Y. 675.) This “ is not a case of fraud. No confidential relation has been abused (Goldsmith v. Goldsmith, 145 N. Y. 313; Wood v. Rabe, 96 N. Y. 414). No inducement has been offered with the preconceived intention that it would later be ignored * * *. The most that can be said against * * * [the defendant] is that he made a promise which the law did not compel him to keep, and that afterwards he failed to keep it ”. (Burns v. McCormick, 233 N. Y. 230, 235.)


The agreement, however, is attacked by the learned counsel for defendant upon the ground that it was not in writing, and, therefore, was absolutely void under the <mask>. This position is not tenable, for the reason that it clearly appears from the evidence that there was a full and complete performance of the verbal agreement on the part of the plaintiffs. They paid $2,000 in cash at the time the conveyance Was made. The property was taken subject to two mortgages, amounting to $11,000, interest on which mortgages the plaintiffs paid until such time as they paid the mortgages in full and had them discharged of record. All this was done before their father died. A parol agreement in respect to land cannot be avoided in equity because not in wilting, where there has been a part performance of it. Smith v. Smith, 51 Hun, 164. Part performance by the party seeking to enforce the contract is sufficient. Freeman v. Freeman, 43 N. Y. 39. The Statute of Frauds does not apply to this case.


Yazdani's cited cases do not support that further timing or manner details were essential to this contract. See Campbell v. Nw. Nat. Life Ins. Co. , 573 S.W.2d 496, 498 (Tex. 1978) (oral agreement at issue granting option to purchase apartment complex was subject to <mask>; case involved right to recover in quantum meruit independent of contract); Botello v. Misener-Collins Co. , 469 S.W.2d 793, 795 (Tex. 1971) (purchase of land agreement was subject to statute of frauds; also, parties agreed $5,000 of $200,000 purchase price was to be paid in cash without agreeing as to time or manner of payment of remaining $195,000).8


Admitting the agreement set up in. the answer to be valid and binding on the plaintiff, the defendant states good ground for an' allowance, by way of recoupment or counter-claim, for such damages as he may be able to establish by legal evidence, growing out of its breach by reason of the omission on the part of the plaintiff *554to remove the poor-house within the specified time. It is urged by the respondent's counsel that the agreement is void, because of . the want .of power .in the plaintiff to enter into it, in ,so far as it relates to the provision sought to be enforced by the defendant, on which the alleged breach is.based. .This .objection is answered by the decision,in De Groff v. The American Linen Thread Co. (24 Barb., 376; same case an appeal, 21 N. Y., 124). It was there held, that even if a corporation has no power to enter into the contract, viewed as a mere corporate power, yet having- undertaken to do so, and having accepted performance by .the other party, it cannot .be permitted tq set up an excess of. authority, in excuse of its own non-performance. It was valid, too, as a .contract for the sale, of lands, although by parol, as it had been performed by the defendant, by the payment of the money agreed to be paid on and prior to July 1st, and .on. that day giving the bond and mortgage as he had agreed. Besides, the action is brought in enforcement of the bond given pursuant to the contract of, sale ; hence the plaintff cannot Ire permitted to. disjiute its validity, basing an objection either on its own want of power to enter into it, or on the <mask>. , The agreement on the facts stated in the answer was binding qn the plaintiff. , .........■


Upon this state of facts, plaintiff’s counsel conceded that if the original arrangement as to plaintiffs employment was for a longer time than one year, it was void under the <mask>. But he claimed that it was a good contract for a year at all events, and being good for that period, and plaintiff having gone on under it not only for that length of time? but also for part of another year, the presumption of law is? that theesecond year was upon the same terms "as the first, and that defendant was bound to keep him during the whole of the second year, unless there was cause for his discharge.


The claim of the defendant upon this appeal is, in brief, that there was no agreement relative to the sale of the real property in question to satisfy the requirements of the <mask>, or the provisions of the Real Property Law. And the contention of the plaintiff is that the transaction was an executed one to which the Statute of Frauds is not. applicable within the principle of the case of Thomas v. Dickinson, 12 N. Y. 364. In the case cited the plaintiff and defendant entered into a verbal agreement by which the plaintiff was to transfer to the defendant his interest in two lots of land possessed by him under contracts for their *461purchase, and the defendant was to convey to the plaintiff in fee a parcel of about eighteen acres of land, and was to pay a sum of money and transfer a debt. The plaintiff "transferred the contracts and surrendered the possession of the lots of land, and the defendant conveyed to the plaintiff the eighteen acres of land; the money was not paid to the plaintiff, nor the assignment of the debt executed. As ¡stated by Johnson, J.: “ Thus the. whole contract, save in a single particular, was performed by the parties to it, notwithstanding its invalidity; all that remained to be done to complete its performance was that the defendant should make the transfer of the Campbell debt. The plaintiff had fully performed. * * * It thereby ceased to be a contract for the sale of lands or an interest in lands and became .a mere agreement to pay for lands conveyed. As such it was not within the statute of frauds.”


What has been said about the facts, as to which there can be no serious dispute, makes it self-evident that the guaranty was given to induce a resumption of deliveries and an extension of credit by the blade company, and hence by fair implication the guaranty states the consideration and meets the requirements of the <mask> in this respect (Sun Oil Co. v. Heller, 248 N. Y. 28; Standard Oil Co. v. Koch, 260 id. 150, 153) and in all other respects as well. Notwithstanding its brevity and informality it completely and accurately evidences the agreement the parties actually made.


Respondent’s position is that Gracie Tower lacks standing to raise the <mask>. Maloof had Kahn’s oral authority to enter into a renewal lease with respondent. Since Gracie Tower is not a party to this oral agreement, but rather "a third-party stranger to the oral contract” it may not as a matter of law interpose the Statute of Frauds (Brockport Developers v 47 Ely Corp., 82 Misc 2d 310, 314 [Sup Ct, Monroe County 1975]; Brooklyn Union Gas Co. v MacGregor’s Custom Coach, 122 Misc 2d 287 [Civ Ct, Kings County 1983]; Kaminsky v Abrams, 51 Misc 2d 5 [Sup Ct, NY County 1965]).


Furthermore, it may be that the defendant Terry would be liable, as claimed by the plaintiff, pursuant to an alleged subsequent oral guarantee since if the promise bottoming the guarantee were original, the <mask> would not apply. (Bulkley v. Shaw, 289 N. Y. 133; Frosco Food Club Plan v. Dennison, 18 Misc 2d 241.) However, whether the promise was original or collateral is a question of fact to be resolved upon the trial. (Rosenkranz v. Schreiber Brewing Co., 287 N. Y. 322.) Finally, a determination as to whether or not the defendant Terry committed a fraud in incurring the contractual liability herein must await the trial since the Dun and Bradstreet report submitted by the plaintiff with respect to the defendant Terry’s financial condition, although compiled in 1962, concerned Terry’s financial condition since January, 1960, covering the period in which the alleged contractual liability was incurred.


On appeal, tenant argues that the alleged oral modification of the written lease is precluded by the written lease itself and, in any event, any alleged five-year oral lease, whether as an extension of the preexisting written lease or as a stand-alone oral agreement, is barred by the <mask>. Landlords respond, among other things, that partial performance is an exception to the statute of frauds (General Obligations Law § 5-703 [2]).