Robie v. Fred F. French Co.

Ordinarily, under the allegations of a complaint that the contract was made in or about the month of November, evidence would be admissible that a contract was made on the sixth of December. Inasmuch as the Statute of Frauds (Pers. Prop. Law, § 31, subd. 1) is involved, however^ the plaintiff, if he be so *415advised, should plead exactly in his complaint. The order should, therefore, be modified by granting the plaintiff leave to serve an amended complaint, without prejudice to the present position of the case on the calendar, and as so modified affirmed, without costs.

Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.

Order modified by granting plaintiff leave to serve an amended complaint, without prejudice to the present position of the case on the calendar, and as so modified affirmed, without costs, with leave to plaintiff to serve an amended complaint within twenty days from service of order upon payment of ten dollars costs awarded to the defendant by the order appealed from.