Majority
p. 750Arthur Schwartz, Appellant, v. Leo Greenberg, Respondent.
In our opinion the proof establishes that there was a valid and binding oral agreement entered into by the parties upon which their minds met in all respects; and failure to deliver a signed copy of the writing setting forth the terms of that agreement cannot defeat its enforcement. (Pratt v. Hudson Riv. R. R. Co., 21 N. Y. 305 , 308; Sherry v. Proal, 131 App. Div. 774 , 776.) The signing by respondent of a copy of the writing setting forth the terms of the agreement constituted a memorandum sufficient to satisfy the Statute of Frauds. (2 Williston on Contracts [Bev. ed.], § 579A; Restatement, Contracts, § 216; Argus Co. v. Mayor of Albany, 55 N. Y. 495 .) Appellant proved damages in the above-stated amount
p. 751
within subdivision 2 of section 145 of the Personal Property Law (Agar v. Orda, 264 N. Y. 248 ) and is entitled to interest thereon from the time of respondent’s refusal to perform. (Civ. Prac. Act, § 480; Steinbugler v. Atwater & Co., No. 1., 264 App. Div. 864 , affd. 289 N. Y. 816 .) Findings of fact inconsistent herewith are reversed and new findings will be made. Carswell, Adel, Sneed and Wenzel, JJ., concur; Nolan, P. J., dissents and votes to affirm. Settle order on notice. [For opinion denying motion to dismiss complaint see 199 Misc. 117 .]
Cases cited
- Pratt v. Hudson River Railroad 21 N. Y. 305 at 308 p. 750
- Argus Co. v. Mayor of Albany 55 N. Y. 495 p. 750
- Agar v. Orda 264 N. Y. 248 p. 751
- Steinbugler v. William C. Atwater & Co. 289 N. Y. 816 p. 751
- Schwartz v. Greenberg 199 Misc. 117 p. 751