St. Mary & Co. v. Halberstadt

Appeal from an order of the County Court of Franklin County at Special Term, entered February 26, 1976, which denied defendant’s motion to dismiss plaintiff’s complaint. Before issue was joined in this action for damages allegedly resulting from the refusal of defendant to accept and pay for certain notes which had been purchased pn her behalf by plaintiff pursuant to an agreement, defendant moved to dismiss the complaint for failure to state a cause of action (CPLR 3211, subd [a], par 7) and because the action was barred by a Statute of Frauds (CPLR 3211, subd [a], par 5). Defendant’s appeal from the order denying her motion rests on the latter argument alone, and we conclude that there should be an affirmance. The affidavit of her attorney merely recites that "no * * * written agreement exists” without specifying the basis for such a statement. It is not at all clear that the statute relied upon (Uniform Commercial Code, § 8-319) is applicable to the situation presented and, even if it does apply, plaintiff is justified in relying on its pleading until sufficient evidence of that fact is developed. While it might have been practicable for the court to direct an immediate trial of the issue (CPLR 3211, subd [d]), we find no error in its denial of the motion considering the posture of the instant record. Order affirmed, with costs. Sweeney, J. P., Kane, Staley, Jr., Larkin and Mikoll, JJ., concur.