Contracts · MBE-tested

Winthrop R. Berth, Appellant, v. W. G. Knapp Co., Inc., Respondent

215 A.D. 693·New York Supreme Court, Appellate Division·1925·NY

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Opinion

Winthrop R. Berth, Appellant, v. W. G. Knapp Co., Inc., Respondent. [MAJORITY] Order denying motion to set aside order of the trial court dismissing plaintiff’s complaint, and for a new trial, reversed upon the law, and motion granted, with costs to abide the event. According to the evidence the original contract was fully performed, and hence the Statute of Frauds was not a defense. The contract sued upon was one implied by law from the performance of the original contract, and is not affected by the Statute of Frauds. According to the evidence it would seem plain that the original hiring was for a year at $6,000 per year. Even if there was a doubt as to the intention of Mr. Knapp when he said “ All right ” in response to plaintiff’s offer, it would be for the jury to determine. Kelly, P. J., Rich, Manning, Young and Kapper, JJ., concur.