Shirley Polykoff Advertising, Inc. v. Houbigant, Inc.

• Decision Date: 16 February 1978
• Citation: 374 N.E.2d 625,43 N.Y.2d 921,403 N.Y.S.2d 732
• Parties: , 374 N.E.2d 625 SHIRLEY POLYKOFF ADVERTISING, INC., Respondent, v. HOUBIGANT, INC., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 732

403 N.Y.S.2d 732

43 N.Y.2d 921, 374 N.E.2d 625

SHIRLEY POLYKOFF ADVERTISING, INC., Respondent, v. HOUBIGANT, INC., Appellant.

Court of Appeals of New York.

Feb. 16, 1978.

Ronald J. Offenkrantz and Kenneth R. Gliedman, New York City, for appellant.

Peter M. Messer and Frederick E. Winkler, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order appealed from should be reversed, defendant's cross motion granted summary judgment entered in favor of defendant, and the certified question answered in the negative. The issue presented on this appeal is whether the alleged oral contract is within the Statute of Frauds in that "(b)y its terms (it) is not to be performed within one year from the making thereof" (General Obligations Law, § 5-701, subd. a, par. 1). We hold that it is.

Plaintiff designed an advertisement for defendant, and has been paid some $42,500. In addition, plaintiff alleges an "understanding" that defendant would pay plaintiff $5,000 a year for every year in which defendant uses the advertisement. Since this alleged oral agreement is not evidenced by any writings, it is void if it comes within the Statute of Frauds.

This contract is not one which by its terms can be performed within a year. If it were, it would be without the statute even if, as a practical matter, it were well nigh impossible of performance within a year (see Freedman v. Chemical Constr. Co., 43 N.Y.2d 260, 401 N.Y.S.2d 176, 372 N.E.2d 12). Nor is it a contract involving alternative performances, one of which is fully performable within a year (see Coinmach Inds. Corp. v. Domnitch, 37 N.Y.2d 889, 378 N.Y.S.2d 370, 340 N.E.2d 735). Finally, this agreement is not similar to that discussed in North Shore Bottling Co. v. Schmidt & Sons, 22 N.Y.2d 171, 292 N.Y.S.2d 86, 239 N.E.2d 189, for the court found the contract involved in that case to be susceptible of termination by the defendant within a year without breach of the contract. In this case, defendant has allegedly promised plaintiff, as a part of the consideration for designing the advertisement, that defendant will pay plaintiff an additional fee for every year in which the advertisement is used. Defendant is not obliged to use the advertisement, and can incur no liability for not using it. Defendant's failure to use the advertisement for any period of time, however long, does not, of course, terminate the contract. Clearly, defendant could not have terminated his contractual...