Nurnberg v. Dwork
| Decision Date | 20 December 1960 |
| Citation | 208 N.Y.S.2d 799,12 A.D.2d 612 |
| Parties | Joseph NURNBERG, Plaintiff-Respondent, v. C. Irving DWORK, and Franlee Distributors, Inc. Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
J. Nurnberg, New York City, for plaintiff-respondent.
H. M. Squadron, New York City, for defendants-appellants.
Before BOTEIN, P. J., and RABIN, VALENTE, McNALLY and EAGER, JJ.
Order, entered on June 16, 1960, denying defendants' motion for summary judgment, unanimously reversed, on the law, with $20 costs and disbursements to appellants and the motion granted as to the first cause of action and the agreement declared void and unenforceable under subdivision 1 of section 31 of the Personal Property Law, and the motion granted as to the second and third causes of action, without prejudice to plaintiff-respondent, if so advised, serving an amended complaint in an action at law in quantum meruit. In this action for a declaratory judgment, the first cause of action is upon an oral agreement whereby plaintiff was to negotiate for the operation of retail outlets in stores of M. H. Fishman Co., Inc., and the defendants were to pay to the plaintiff 1% of the gross retail sales of the defendants in said stores. The second and third causes of action are in declaratory judgment for quantum meruit for the reasonable value of plaintiff's services. The agreement relied on is within the statute of frauds in that by its terms it is not to be performed within one year from the making thereof. The defendants are required thereby to pay 1% of their gross sales at the Fishman stores during any period thereafter. Zupan v. Blumberg, 2 N.Y.2d 547, 161 N.Y.S.2d 428; Martocci v. Greater New York Brewery, 301 N.Y. 57, 92 N.E.2d 887; Cohen v. Bartgis Bros. Co., 289 N.Y. 846, 47 N.E.2d 443, affirming 264 App.Div. 260, 35 N.Y.S.2d 206. Plaintiff's reliance on Nat Nal Service Stations v. Wolf, 304 N.Y. 332, 107 N.E.2d 473 is misplaced. There the court held each purchase and sale of gasoline resulted from a separate contract not within the scope of the statute of frauds. In the instant case, there is one underlying arrangement whereby the defendants are obligated to pay 1% of the gross sales if at any future time they establish concessions at stores of M. H. Fishman Co., Inc., so long as the concessions are maintained by the defendants. The agreement relied on, therefore, is within the statute of frauds. The second and third causes of action on...
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North Shore Bottling Co. v. C. Schmidt & Sons, Inc.
...duty of performance. Nor does our decision in Nurnberg v. Dwork, 12 N.Y.2d 776, 234 N.Y.S.2d 721, 186 N.E.2d 568, affg. 12 A.D.2d 612, 208 N.Y.S.2d 799, override or work a change in what has long been our settled rule. In that case, the plaintiff 'was to negotiate for the operation of retai......
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Dundee Wine & Spirits, Ltd. v. Glenmore Distilleries Co.
...the defendant to terminate as a matter of right under Blake v. Voigt, supra. Subsequently, in the same year the case of Nurnberg v. Dwork, 12 A.D.2d 612, 208 N.Y. S.2d 799 (1960), aff'd, 12 N.Y.2d 776, 234 N.Y.S.2d 721, 186 N.E.2d 568 (1962), was decided by the Appellate Division, First Dep......
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...(1942), aff'd 289 N.Y. 846, 47 N.E.2d 443 (1943); Elsfelder v. Cournand, 270 App.Div. 162, 59 N.Y.S.2d 34 (1945); Nurnberg v. Dwork, 12 A.D.2d 612, 208 N.Y.S.2d 799 (1960), aff'd 12 N.Y.2d 776, 234 N.Y.S.2d 721, 186 N.E.2d 568 (1962); Archer v. Hamilton Wright Org., 155 N.Y.S.2d 556 (Sup.Ct......
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Rosenthal v. Kingsley
...to the imposition of liability does not remove a contract from the bar of the Statute of Frauds"). See also Nurnberg v. Dwork, 12 A.D.2d 612, 208 N.Y.S.2d 799 (1st Dep't 1960), aff'd mem., 12 N.Y.2d 776, 186 N.E. 2d 568, 234 N.Y.S.2d 721 (1962); Martocci v. Greater New York Brewery, 301 N.Y......