Merit Oil Heating Corp., Respondent, v. Joseph H. Somlo, Appellant, et al., Defendant

Merit Oil Heating Corp., Respondent, v Joseph H. Somlo, Appellant, et al., Defendant. [MAJORITY] —In an action to recover the reasonable value of fuel oil allegedly sold to the defendants, defendant Somlo appeals from a judgment of the Supreme Court, Westchester County, entered April 25, 1978, which, upon a jury verdict, was in favor of the plaintiff in the principal amount of $10,786.90. Judgment affirmed, with costs. No opinion. Suozzi, J. P., Cohalan and Martuscello, JJ., concur. [CONCURRENCE — Lazer, J.,] Lazer, J., concurs in the result with the following memorandum: I concur because defendant Somlo (1) failéd to plead the Statute of Frauds despite the fact that he had ample notice from the bill of particulars that plaintiff intended to rely on an oral agreement; (2) never moved to amend the answer to assert the Statute of Frauds and simply moved to dismiss on the basis of the statute after the jury had retired to deliberate; and (3) stipulated that his liability was a matter of fact to be determined at trial. It is apparent that the jury believed the plaintiff rather than Somlo and thus decided in favor of the plaintiff the underlying fact issue as to whether Somlo had agreed to be personally liable for the oil deliveries involved.