WEBB & KNAPP v. UNITED CIGAR-WHELAN STORES CORP.


276 A.D. 583 (1950)

Webb & Knapp, Inc., et al., Appellants, v. United Cigar-Whelan Stores Corporation, Respondent

Appellate Division of the Supreme Court of the State of New York, First Department.

April 11, 1950.


Attorney(s) appearing for the Case

Louis Nizer of counsel (Paul Martinson and Seymour Shainswit with him on the brief; Phillips, Nizer, Benjamin & Krim, attorneys), for appellants.

Martin S. House of counsel (Glass & Lynch, attorneys), for respondent.

GLENNON, J. P., COHN, CALLAHAN and SHIENTAG, JJ., concur; VAN VOORHIS, J., dissents in part and votes to affirm both orders.


Per Curiam.

A sworn statement that a writing sufficient to satisfy the Statute of Frauds exists, is not enough to defeat a motion to dismiss under subdivision 8 of rule 107 of the Rules of Civil Practice. It is incumbent upon the party opposing such a motion to produce the writing or explain the failure so to do. Plaintiffs in this case failed in that respect and as a consequence the motion to dismiss was properly granted...

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