Herzog v. Brown

Headnote

Contract — Statute of Frauds — action to recover for breach of contract to purchase leasehold — issue of fact as to whether contract unenforcible under Statute of Frauds.

Herzog v. Brown, 217 App. Div. 402 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 21, 1926, which reversed an order of Special Term granting a motion for dismissal of the

complaint and directing trial of a stated issue of fact. The action was to recover for an alleged breach of contract - to purchase a leasehold interest in real property. In • support of his motion to dismiss the complaint defendant presented an affidavit showing that the contract alleged in the complaint referred to defendant’s interest in a twenty-one-year lease with renewal options, and that no note or memorandum of the contract was in writing and subscribed either by the defendant or by his lawfully authorized agent.

• The following questions were certified:

“1. Do the complaint and the affidavits in support of the motion to dismiss the complaint contain facts sufficient to show, prima facie, that the contract on which the action is founded is unenforcible under the provisions" of the Statute of Frauds?

“ 2. Does the answering affidavit in opposition to . said motion state facts sufficient to raise an issue of fact as to whether the contract on which the action is founded is unenforcible under the provisions of the Statute of Frauds?

“ 3. Do the complaint and the affidavits herein contain facts sufficient to show that the contract on which the action is founded is unenforcible under the provisions of the Statute of Frauds? ”

Order affirmed, with costs; second question certified answered in the affirmative; remaining questions not answered;