Rosen v. 250 West 50 Street Corp.

Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Desmond and Thacheb, JJ. Fuld, J., dissents in memorandum in which Conway, J., concurs. Taking no part: Dye, J.

(dissenting). As I see it, the allegations of the complaint give rise to issues of fact — as to part performance to remove the case9 from the bar of the Statute of Frauds — which should be resolved on a trial rather than upon motion. Quite apart from other allegations relating to defendants’ consenting to the assignment of the existing lease and their receiving and holding for four months plaintiff’s check for additional security under the new lease, proof at the trial in support of the allegation that plaintiff moved into the premises and spent ‘1 divers large sums of money ’ ’ in their improvement, may well establish the expenditure of such sums — and to defendants ’ knowledge — as would, first, be incommensurate with the mere assignment of the old lease and, second, be “ unequivocally referable ” only to a new and extended lease. (Cf. Burns v. McCormick, 233 N. Y. 230 , 232.) Accordingly, the judgment should be reversed and defendants’ motions to dismiss the complaint denied.