so long as change of heart was not induced by any fraud or misrepresentation, plaintiff has no cause of action for inducing breach of contract otherwise unenforceable
How later courts described this case
- so long as change of heart was not induced by any fraud or misrepresentation, plaintiff has no cause of action for inducing breach of contract otherwise unenforceable
- “The oral contract ... was not void since it is the settled New York rule that our Statute of Frauds ... makes oral agreements not void but unenforcible [sic].” (alternation, internal quotation marks and citation omitted)
Written by the judges who cited it.
The opinion
Martuscello, J. (dissenting).
I concur in the views expressed in the dissenting opinion of Presiding Justice Gulotta as to the sufficiency of the cause of action for tortious interference with contract. However, I would modify the judgment under review by deleting therefrom the direction for a reconveyance of the property and would remand for a new trial as to damages.
The direction for a reconveyance violates the Statute of Frauds and, moreover, the cause of action for such relief asserted against the appellant was dismissed upon his motion at the trial.
We should not permit that direction to remain in the judgment "since equity will not suffer the making of a vain order” (see Pennington v Ziman, 13 AD2d 769 ).
Latham and Cohalan, JJ., concur with Shapiro, J.; Gulotta, P. J., dissents and votes to modify the judgment by deleting the alternative award of damages contained therein and remanding the action to Special Term for a new trial to fix the amount of such alternative award, with an opinion; Martuscello, J., dissents and votes to modify the judgment by deleting therefrom (1) the direction for the reconveyance of the property and (2) the alternative award of damages and remanding the action to Special Term for a new trial to fix the amount of such alternative award, with an opinion.
Judgment of the Supreme Court, Suffolk County, entered September 17, 1975, reversed insofar as appealed from, without costs or disbursements, and complaint dismissed.