Rosen v. 250 West 50 Street Corp. — 270 A.D. 171

Majority

p. 171

Gertrude Rosen, Respondent, v. 250 West 50 Street Corporation et al., Appellants.

First Department,

December 14, 1945.

p. 172

C. Walter Randall of counsel (Brush & Bloch, attorneys), for 250 West 50 Street Corporation, appellant.

Charles Segal for David A. Harris and others, copartners, appellants.

Charles H. Levy of counsel (Harvey I. Harris with him on . the brief) for respondent.

The oral agreement pleaded by plaintiff for a lease of the real' property here involved for a period of three years commencing January 1, 1946, is void and unenforcible inasmuch as no note or memorandum thereof expressing the consideration is in writing, subscribed by the defendant owner or its lawful agent thereunto authorized by writing (Real Property Law, §§ 242, 259). Furthermore, no facts are alleged showing part performance sufficient to take this case out of the Statute of Frauds.

The orders appealed from should be reversed, with $10 costs arid, disbursements to the respective appellants, and the motions to dismiss the complaint granted.

Martin, P. J., Cohn and Wasservogel, JJ., concur in Per Curiam opinion; Dore and Peck, JJ,, dissent and' vote to affirm, in the following memorandum: Defendants’ consenting to assignment of the existing lease, receiving and holding for four months plaintiff’s check under the new lease, and plaintiff’s moving in and making improvements in the premises raise issues of fact as to part performance which should be resolved on a trial rather than upon motion.

Orders reversed, with $10 costs and disbursements to the respective appellants, and the motions granted.