RAOUL v. OLDE VIL. HALL


76 A.D.2d 319 (1980)

Serge Raoul et al., Appellants, v. Olde Village Hall, Inc., et al., Respondents

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

July 7, 1980


Attorney(s) appearing for the Case

James V. De Marco for appellants.

Blauman & McCabe, P. C., c/o Siff & Newman, P. C. (Benjamin Vinar, Louis G. Adolfsen and Terrence M. McCabe of counsel), for Abby Towers, Ltd., and another, and for Olde Village Hall, Inc., and another, respondents (separate briefs filed).

GULOTTA, MARGETT and WEINSTEIN, JJ., concur.


DAMIANI, J. P.

The issue presented is whether the Statute of Frauds may be interposed for the first time on appeal where the allegations of the complaint reveal upon their face that the action is based upon an oral contract within the purview of the statute. Despite some old cases to the contrary, it is our view that under the present practice statute the defendants' failure to affirmatively raise the defense...

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