Fitzgerald Bros. Brewing Co. v. Larossi

Plaintiff appeals from an order of the Supreme Court which denied its motion for summary judgment. The action seeks to recover a balance due for goods sold and delivered. Defendant interposed a counterclaim for damages for breach of an oral contract. From the allegations of the answer and statements in defendant’s moving papers it sufficiently appears that defendant contends that in return for his agreement to handle and promote plaintiff’s beer, plaintiff agreed to furnish adequate beer for defendant’s business at current prices, and agreed not to terminate the distributorship except upon a notice of six months. Plaintiff denies that such an oral agreement was made. This clearly raises a question of fact as to the existence and the breach of the alleged contract. We agree with the court below that on the present state of the record the Statute of Frauds is not a defense. Order unanimously affirmed, with $10 costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.