Steinberg v. Universal Machinenfabrik GMBH

• Decision Date: 15 November 1965
• Citation: 24 A.D.2d 886,264 N.Y.S.2d 757
• Parties: Julius STEINBERG et al., Respondent, v. UNIVERSAL MACHINENFABRIK GMBH, Universal Knitting Machines Corp., and Speizman Knitting Machine Co., Defendants-Appellants, and Dr. Rudolf Schieber et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 757

264 N.Y.S.2d 757

24 A.D.2d 886

Julius STEINBERG et al., Respondent, v. UNIVERSAL MACHINENFABRIK GMBH, Universal Knitting Machines Corp., and Speizman Knitting Machine Co. Defendants-Appellants, and Dr. Rudolf Schieber et al., Defendants.

Supreme Court, Appellate Division, Second Department.

Nov. 15, 1965 As Amended on Court's Own Motion Nov. 23, 1965.

Becker, Ross & Stone, New York City, for appellant Speizman Co.

Kunstler, Kunstler & Kinoy, and Moses, McGlew & Toren, New York City, for appellants Universal; Alexander Stone, New York City, of counsel.

Ballon, Stoll & Shyman, New York City, for respondents; David Kaplan, New York City, of counsel.

Before CHRIST, Acting P. J., and HILL, RABIN, HOPKINS and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In an action based on an alleged breach of contract, inducement to breach the contract, and fraud: (a) two corporate defendants appeal from an order of the Supreme Court, Kings County, entered May 18, 1965, which denied their motion to dismiss the first three causes of action and for summary judgment; and (b) a third corporate defendant (Speizman Knitting Machine Co.) appeals from the first mentioned order and from another order of said court, entered the same day, which denied its separate motion for summary judgment.

First above mentioned order modified: (a) by denying the motion as to the third cause of action only, which is severed as against the defendant Universal Machinenfabrik GMBH; and (b) by granting such motion as to the first and second causes of action. As so modified, said order is affirmed. Appeal by defendant Speizman Knitting Machine Co. from said order dismissed without costs.

Second above mentioned order reversed and motion granted.

Appellants are allowed a single bill of $10 costs and disbursements.

Since this determination leaves no causes remaining as against defendants Universal Knitting Machines Corp. and Speizman Knitting Machine Co., so that they would be entitled to judgment dismissing the action as against them, the action as against them is severed.

The contract which plaintiffs claim has been breached is one by which appellant Universal Machinenfabrik GMBH (hereafter called Machinenfabrik) in October, 1961 appointed plaintiffs as its exclusive sales agents in the United States and Canada for a period ending October 31, 1964. Plaintiffs (or some of them) had been serving as such agents under a written contract made in 1956 for a term ending May 31, 1961 but which was to continue thereafter subject to termination on three months' notice. In June, 1963, Machinenfabrik, purporting to act on the theory that the operative agency agreement was the 1956 document, gave notice of termination effective September 30, 1963.

The alleged 1961 agreement does not satisfy the requirements of the Statute of Frauds and, therefore, is void (General Obligations Law, § 5-701, subd. 1; formerly Personal Propery Law, § 31, subd. 1). The written memorandum on which plaintiffs rely was not 'subscribed' by any of the parties charged therewith by plaintiffs, as required by the statute. The scrawl at the top of the memorandum, which plaintiffs claim is the initals of Machinenfabrik's principal officer, is inefficient for the purpose. The subscription which the statute demands is a writing at the end of the memorandum (Davis v. Shields, 26 Wend. 341; James v. Patten, 6 N.Y. 9; 300 West End. Ave. Corp. v. Warner, 250 N.Y. 221 165 N.E. 271). This statutory requirement should not be confused with the requirement applicable to a required writing concerning a sale of goods, which is that the writing be 'signed' (Uniform Commercial Code, § 2-201, subd. ).

Further, the memorandum does not satisfy the requirement that it 'must include all the terms of the completed contract' (Poel v. Brunswick-Balke-Collender Co. of New York, 216 N.Y. 310, 314, 110 N.E. 619, 620). 'An incomplete writing may not be supplemented by testimony of oral...