The individual defendant is a well-known theatrical performer and she is the sole stockholder of the three corporate defendants which were organized and exist for the purpose of exploiting and carrying on her business interests as a performer. The plaintiff has acted as manager of the individual defendant for many years under a series of written contracts, the latest of which expired on January 4, 1967. Thereafter, the plaintiff did render services for the individual defendant and her corporations and negotiations were carried on between the plaintiff and one Levin, as attorney for the defendants, for the making of a new contract between the parties. Certain proposed contracts were prepared by the attorney but were not signed. Eventually, however, on or about April 1, 1968, an oral agreement was allegedly made between the parties for the employment of the defendant for a period of five years. Thereafter, Mr. Levin prepared four written contracts (one between the plaintiff and each of the four defendants, and on April 15, 1968 he transmitted the contracts as prepared, to the plaintiff with a letter, signed by him, reading:
Following the receipt of the contract forms, the plaintiff signed all four of them and delivered them to the individual defendant. The plaintiff claims that this was done within a
The defendants urge that the Statute of Frauds is a defense to the action but Special Term has denied a motion made pursuant to CPLR 3211 (subd. [a], pars. 5 and 7), with leave to defendants to assert the statute as a defense in their answer.
The applicable Statute of Frauds is section 5-701 of General Obligations Law which, insofar as relevant, provides:
Briefly stated, the plaintiff contends that the afore-mentioned letter, signed by the attorney for the defendants, and the enclosed unsigned documents, constitute sufficient compliance with the Statute of Frauds. Special Term, in denying the motion to dismiss, held that the applicability of the statute would depend upon the determination of disputed issues, including, "did the writings accurately reflect and contain all of the pertinent terms of the alleged oral agreement of the parties; did the alleged agent [the attorney Levin] have express or apparent authority to bind defendants or any of them; and, if not, are any unauthorized oral agreements presently enforceable by virtue of ratification or estoppel?"
While it is true that, under certain circumstances, unsigned writings may be considered in connection with a signed writing to constitute a memorandum sufficient to satisfy the Statute of Frauds (see Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48), we conclude that this rule does not apply under the present circumstances where the unsigned writings consisted solely of unsigned contracts, as drafted by an attorney, and the signed writing is merely a covering letter, signed by the attorney, that is silent as to the terms of the alleged agreement and expressly requires the plaintiff to obtain signatures on the enclosed contracts.
Although it is not necessary that the party or his agent subscribe or sign each of the several writings, it is essential that at least one of the writings be signed by the party or his agent with the intent, actual or apparent, to authenticate that writing (see Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., supra, p. 310) and including the intent to authenticate the existence of a contractual relationship in accordance with terms to be established by reference to properly connected writings, then in existence. "At least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged, while the unsigned document must on its face refer to the same transaction as that set forth in the one that was signed" (Crabtree v. Elizabeth Arden Sales Corp., supra, p. 56), and it must appear that the party's signature to the signed writing was made or adopted "with intent to authenticate the information contained therein and that such information does evidence the terms of the contract." (See Crabtree v. Elizabeth Arden Sales Corp., supra, p. 54.) Accordingly, where one of the several writings alleged to constitute a note or memorandum of an agreement is a letter, the signature of the party to such letter may not be accepted as a subscription of a note or memorandum in compliance with the statute unless the letter purports in some manner to assume or authenticate a contractual relationship in accordance with terms sufficiently stated therein or sufficiently stated in other existing and properly connected writings. (See decisions, supra. See, also, Clinton Paper Co. v. Mills Paper Co., 83 N.Y.S.2d 875, 877 [McNALLY, J.].)
Here, the letter drafted by defendants' attorney, as stated on its face, was intended merely as a means of transmittal to the
Looking at it another way, attorney Levin's letter may be considered merely as an offer in writing to contract, with specified terms laid down as the basis for the formation of the contract. The letter was merely a proposal to contract — a proposal that the parties should sign and deliver formal written contracts. Thus, the writing and the signing of the letter by the attorney was but a step looking toward the making of contracts which were to be formed when the parties executed the written documents which were enclosed. (See Dorian Holding & Trading Corp. v. Brunswick Term. & Ry. Securities Co., 230 App. Div. 514, 518.) Inasmuch as the documents were never approved or signed by the defendants and parol evidence is necessary to establish that the defendants had previously agreed to the terms stated in the documents, there was no compliance with the Statute of Frauds.
There are no relevant or material disputed issues requiring a trial. Under the circumstances, it is immaterial whether or not the unsigned contracts enclosed with the letter accurately reflect and contain all of the pertinent terms of a prior alleged oral agreement between the parties. The very purpose of the Statute of Frauds would be thwarted if parol evidence were permitted to establish an oral agreement which does not purport
The order, entered June 23, 1969, should be reversed, on the law, with costs and disbursements to the defendants, and defendants' motion to dismiss the complaint should be granted.
Order entered June 23, 1969, unanimously reversed, on the law, with $50 costs and disbursements to defendants, and defendants' motion to dismiss the complaint granted; and the Clerk is directed to enter judgment against the plaintiff dismissing the complaint with costs.