Cohen v. Bartgis Bros. Co.
| Decision Date | 21 January 1943 |
| Citation | 289 N.Y. 846,47 N.E.2d 443 |
| Parties | Victor COHEN, Appellant, v. BARTGIS BROS. CO., Respondent. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department, 264 App.Div. 260, 35 N.Y.S.2d 206.
Action by Victor Cohen against the Bartgis Bros. Co. to recover commissions allegedly due under an oral agreement. The plaintiff alleged that he was first employed by the defendant in April 1933 as a salesman upon commission and that, while thus employed, he entered into a supplemental oral contract whereby the defendant agreed to pay commissions ‘upon all orders placed by Resolute Paper Products Corporation at any time, whether or not plaintiff was in defendant's employ at the time of the placing of such orders.’
The plaintiff's employment was terminated by the defendant on December 31, 1940. It was not contended that such termination of employment involved any breach of contract. The breach was said to consist in the defendant's failure to pay commissions on sales made to Resolute Paper Products Corporation by the defendant both before and after the termination of the employment. The question involved was whether such contract by its terms was not to be performed within one year from the making thereof and hence was within the statute of frauds, Personal Property Law, Consol.Laws, c. 41, s 31, subd. 1.
From an order of the Appellate Division, 264 App.Div. 260, 35 N.Y.S.2d 206 which reversed an order made at Special Term striking out the defense of the statute of frauds contained in the defendant's answer the plaintiff appeals by permission of the Appellate Division, 264 App.Div. 919, 36 N.Y.S.2d 238, the Appellate Division having certified a question: ‘Is the second affirmative defense of the amended answer sufficient in law on the face thereof?’
Order affirmed, and question certified answered.
William Macy, of New York City, for appellant.
Kugel, Freidin & Deitz, of New York City (W. N. Seligsberg and Leonard L. Berliner, both of New York City, of counsel), for respondent.
Order affirmed with costs. Question certified answered in the affirmative.
All concur.
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