# Dickenson v. Dickenson Agency, Inc.

> Appellate Division of the Supreme Court of the State of New York · February 27, 1987 · 127 A.D.2d 983

URL: https://www.frixlaw.com/law-library/cases/5893536

## Case

- **Full name:** James B. Dickenson, Individually and on Behalf of Himself as Shareholder of Dickenson Agency, Inc. v. Dickenson Agency, Inc.
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** February 27, 1987
- **Citations:** 127 A.D.2d 983; 512 N.Y.S.2d 952; 1987 N.Y. App. Div. LEXIS 43479
- **Precedential status:** Published
- **Opinion:** Dissent by Davis
- **Judges:** Davis
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Davis, J.
(dissenting). I respectfully dissent from the majority’s conclusion that plaintiff’s (Dickenson) first and second causes of action in the first amended complaint are not barred by the Statute of Frauds. The applicable Statute of Frauds provides:
"a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:
"1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime”. (General Obligations Law § 5-701 [a] [1].)
In paragraphs 13 and 15 of Dickenson’s complaint, he made the following allegations:
"13. That from approximately 1957 until June of 1980, plaintiff was employed as an insurance agent by Dickenson Agency, Inc. under an oral agreement of employment whereby the plaintiff was entitled to be compensated for insurance policies sold in the amount of 50% of the commissions received by the agency, and in the amount of 50% of renewal commissions received by the agency on those policies previously sold * * *
"15. That in accordance with the compensation arrangement entered into between defendant Dickenson Agency, Inc. and the plaintiff, the plaintiff is entitled to receive renewal commissions upon all insurance policies sold by the plaintiff and renewed, whether or not renewed subsequent to his termination of employment.”
Dickenson thus admitted that he had no written employment contract with defendant Agency and that his oral contract contemplated commissions both during his employment by the Agency and after his employment terminated. Dickenson’s sworn allegations bring the first and second causes of action squarely within the Statute of Frauds. Dickenson has *986 alleged the existence of an "oral commission sharing agreement” which is not by its terms performable within one year.
This case falls within the rule enunciated in the case of McCollester v Chisholm ( 104 AD2d 361 , affd, 65 NY2d 891 ). In McCollester (supra, at 361-362 ), the Second Department held: "A service contract of indefinite duration, in which one party agrees to procure customers, or accounts, or orders on behalf of the second party, is not by its terms performable within one year — and hence must be in writing and signed by the party to be charged — since performance is dependent,' not upon the will of the parties to the contract, but on that of a third party [citations omitted].” (See also, Zupan v Blumberg, 2 NY2d 547 ).
Accordingly, I would reverse Special Term’s denial of defendant’s cross motion dismissing Dickenson’s first and second causes of action. With respect to the fifth and sixth causes of action contained in the first amended complaint, I concur with the majority. (Appeal from order of Supreme Court, Erie County, Wolfgang, J. — dismiss causes of action.) Present — Dillon, P. J., Callahan, Green, Balio and Davis, JJ.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5893536. Public record. Not legal advice.