Scheck v. Francis

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: EAGER
• Citation: Scheck v. Francis, 305 N.Y.S.2d 217, 33 A.D.2d 91 (N.Y. App. Div. 1969)
• Decision Date: 20 November 1969
• Parties: George SCHECK, Plaintiff-Respondent, v. Connie FRANCIS, GGC Productions Corp., Antigony Music Inc. and Brookings MusicInc., Defendants-Appellants.

Page 217

305 N.Y.S.2d 217

33 A.D.2d 91

George SCHECK, Plaintiff-Respondent, v. Connie FRANCIS, GGC Productions Corp., Antigony Music Inc. and Brookings MusicInc., Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Nov. 20, 1969.

Howard Breindel, New York City, of counsel (Regan, Goldfarb, Powell & Quinn, New York City, attorneys) for appellants.

Solomon Granett, New York City, of counsel (Halperin, Morris, Granett & Cowan, New York City, attorneys) for respondent.

Before STEVENS, P.J., and EAGER, CAPOZZOLI, MARKEWICH and NUNEZ, JJ.

EAGER, Justice.

The individual defendant is a well known theatrical performer and she is the sole stockholder of the three corporate defendants which were organized and exist for the purpose of exploting and carrying on her business interests as a performer. The plaintiff has acted as manager of the individual defendant for many years under a series of written contracts, the latest of which expired on January 4, 1967. Thereafter, the plaintiff did render services for the individual defendant and her corporations and negotiations were carried on between the plaintiff and one Levin, as attorney for the defendants, for the making of a new contract between the parties. Certain proposed contracts were prepared by the attorney but were not signed. Eventually, however, on or about April 1, 1968, an oral agreement was allegedly made between the parties for the employment of the defendant for a period of five years. Thereafter, Mr. Levin prepared four written contracts (one between the plaintiff and each of the four defendants), and on April 15, 1968 he transmitted the contracts as prepared, to the plaintiff with a letter, signed by him, reading:

'Enclosed, in quadruplicate, are the employment agreements between you and GGC Productions Corp., Connie Francis Antigony Music Ltd., and Brookings Music Inc. Please sign all copies, have Connie sign all copies and distribute the copies as follows:

One set to me

One set for the office

One set for you

One set for Sol Granett (the plaintiff's attorney)

If you have any questions or comments, please call me.'

Following the receipt of the contract forms, the plaintiff signed all four of them and delivered them to the individual defendant. The plaintiff claims that this was done within a few days after he received the papers but the individual defendant testified that she believed that this occurred a number of months after plaintiff received them and after defendant knew that she intended to terminate her relationship with him. In any event, the contracts were never executed by defendants and, in August 1968, the plaintiff's services were terminated. Thereafter this action was brought against the defendants to recover for breach of an alleged agreement for the employment of plaintiff for a five year term as provided for in the contract forms enclosed with the attorney's letter.

The defendants urge that the statute of frauds is a defense to the action but Special Term has denied a motion made pursuant to CPLR 3211(a)(5), (7), with leave to defendants to assert the statute as a defense in their answer.

The applicable statute of frauds is section 5--701 of General Obligations Law which, insofar as relevant, provides:

'Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:

'1. By its terms is not to be performed within one year from the making thereof * * *.'

Briefly stated, the plaintiff contends that the aforementioned letter, signed by the attorney for the defendants, and the enclosed unsigned documents, constitute sufficient compliance with the statute of frauds. Special Term, in denying the motion to dismiss, held that the applicability of the statute would depend upon the determination of disputed issues including, 'did the writings accurately reflect and contain all of the pertinent terms of the alleged oral agreement of the parties; did the alleged agent (the attorney Levin) have express or apparent authority to bind defendants or any of them; and, if not, are any unauthorized oral agreements presently enforceable by virtue of ratification or estoppel?'

While it is true that, under certain circumstances, unsigned writings may be considered in connection with a signed writing to constitute a memorandum sufficient to satisfy the statute of frauds (See Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 110 N.E.2d 551), we conclude that this rule does not apply under the present circumstances where the unsigned writings consisted solely of unsigned contracts, as drafted by an attorney, and the signed writing is merely a covering letter, signed by the attorney, that is silent as to the terms of the alleged agreement and expressly requires the plaintiff to obtain signatures on the enclosed contracts.

The statute requires that some note or memorandum of the agreement of the parties, expressed in writing, be 'subscribed' by the party to be charged or by his lawful agent. In applying the statute, one should not overlook the significance of the use in the statute of the word 'subscribed'. Certainly, where reference to several writings is required to ascertain the terms of the alleged note or memorandum, the statutory provision for a subscription requires a signature made with an intent to authenticate statements in existing writings as a note or memorandum of the alleged agreement. (See James v. Patten, 6 N.Y. 9, 11, 13; Mesibov, Glinert & Levy v. Cohen B. Mfg. Co., 245 N.Y. 305, 157 N.E. 148; 300 West End Ave. Corp. v. Warner, 250 N.Y. 221, 165 N.E. 271; Clarkson v. Krieger, 254 N.Y. 114, 172 N.E. 260; Steinberg v. Universal Machinenfabrik GMBH et al., 18 N.Y.2d 943, 277 N.Y.S.2d 142, 223 N.E.2d 567, affirming 24 A.D.2d 886, 264 N.Y.S.2d 757; Zipkin v. Roshwald, Sup., 219 N.Y.S.2d 490.)

Although it is not necessary that the party or his agent subscribe or sign each of the several writings, it is essential that at least one of the writings be signed by the party or his agent with the intent, actual or apparent, to authenticate that writing (see Mesibov, Glinert & Levy v. Cohen B. Mfg. Co., Supra, p. 310, 157 N.E. 148) and including the intent to authenticate the existence of a contractual relationship in accordance with terms to be established by reference to properly connected writings, then in existence. '(A)t least one writing, the one establishing a contractual relationship between the parties, must bear the signature of ...