Robie v. Fred F. French Co. — 220 A.D. 414

Majority

p. 414

Marshall Robie, Appellant, v. Fred F. French Company, Respondent.

First Department,

May 6, 1927.

Headnote

Contracts — pleadings — allegation that contract was made in or about month of November — -evidence admissible that contract was made on December sixth — plaintiff given leave to amend complaint to allege exact date.

In an action on a contract which pleads the execution of the contract about the month of November, evidence is admissible to show that the contract was executed on the sixth of December. But the plaintiff is given leave to serve an amended complaint to plead the specific date on the ground that the Statute of Frauds is involved.

Appeal by the plaintiff, Marshall Robie, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of February, 1925, granting defendant’s motion to strike out plaintiff’s amended reply and for judgment on the pleadings dismissing the second cause of action.

Eugene Morgan Hawkins of counsel [William L. Tierney, attorney], for the appellant.

Robert H. Scholl of counsel [/. Fearon Br^wn with him on the brief; Kellogg, Emery, Inness-Brown & Cuthell, attorneys], for the respondent.

Ordinarily, under the allegations of a complaint that the contract was made in or about the month of November, evidence would be admissible that a contract was made on the sixth of December. Inasmuch as the Statute of Frauds (Pers. Prop. Law, § 31, subd. 1) is involved, however^ the plaintiff, if he be so

p. 415

advised, should plead exactly in his complaint. The order should, therefore, be modified by granting the plaintiff leave to serve an amended complaint, without prejudice to the present position of the case on the calendar, and as so modified affirmed, without costs.

Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.

Order modified by granting plaintiff leave to serve an amended complaint, without prejudice to the present position of the case on the calendar, and as so modified affirmed, without costs, with leave to plaintiff to serve an amended complaint within twenty days from service of order upon payment of ten dollars costs awarded to the defendant by the order appealed from.