(dissenting). Defendants appeal from an order by Nathan, J., denying their motion, pursuant to rule 113 of the Rules of Civil Practice, for summary judgment dismissing the complaint upon the ground that the contract alleged therein is void under the Statute of Frauds (Personal Property Law, § 31, subd. 1) in that the agreement “ By its terms is not to be performed within one year from the making thereof * * *
*210Plaintiff, owner of a garage and gas station, alleges that during 1938 it entered into an agreement with the defendants, the terms of which are set forth in the complaint as follows: “ Fourth: That heretofore the defendants duly entered into an agreement with the plaintiff, wherein and whereby the defendants promised and agreed to and with the plaintiff that so long as plaintiff purchased from Socony Vacuum Oil Company or the Standard Oil Company or either or both, its requirements for gasoline at its place of business through the defendants and the defendants accepted the same, the defendants would pay to the plaintiff an amount equal to the discount allowed to defendants by said Socony Vacuum Oil Company and Standard Oil Company or either or both of them, on each gallon of gasoline so purchased. ’ ’
Plaintiff alleges that it purchased a number of gallons of gasoline pursuant to this arrangement for which defendants have not made the stipulated payment.
In support of their motion for summary judgment dismissing the complaint as setting forth an oral agreement violative of the Statute of Frauds, defendants placed chief reliance upon the doctrine of Cohen v. Bartgis Bros. Co. (264 App. Div. 260 [1st Dept., 1942], affd. 289 N. Y. 846 [1942]), which was cited with approval by the Court of Appeals in Martocci v. Greater New York Brewery (301 N. Y. 57 [1950]). In the Cohen case the plaintiff, a salesman, sued his employer for commissions ‘ ‘ * upon all orders placed by Resolute Paper Products Corp., at any time, whether or not plaintiff was in defendant’s employ at the time of the placing of such orders.’ ” (P. 260.) As the court there pointed out, although the defendant could obviate any necessity to pay commissions to the plaintiff by refusing to accept orders from the customer, such refusal, however long continued, would in no way affect defendant’s obligation to pay commissions should it at some time in the future accept such an order. Therefore the obligation placed upon the defendant under the oral contract was one which would continue so long as defendant and the Resolute Paper Products Corp. existed. While the dissolution or retirement from business of either of these concerns would terminate the contract, and such event might occur within one year, the court pointed out that termination is not performance where there is no provision permitting either of the parties to terminate as a matter of right. In the present case, however, it is clear that both parties can terminate their obligations as a matter of right.
*211Although the agreement here sued upon is set forth in the complaint as though it were a single contract, it is readily apparent that in effect, the plaintiff is suing to recover damages for breach of a series of independent contracts. The promise by the defendants set forth in the complaint certainly did not constitute a contract since the plaintiff made no promise nor was under any obligation to do anything. Indeed, the defendants’ promise may not even have constituted an offer, since he reserved the right not to accept any order placed by the plaintiff. Even if considered an offer, it was at most one looking to a series of independent unilateral contracts, either party having at any time the right to terminate that series.
What we have here was simply an invitation by the defendants to the plaintiff to make offers looking towards separate contracts by placing with the defendants orders for gasoline from the two oil companies mentioned above. Upon acceptance by the defendants of each order for gasoline, a single contract was created under which the defendants were obligated to pay to the plaintiff the specified discount. Each order placed and accepted created a single independent contract. Neither party was under any contractual obligation to enter into any new contract, and with respect to any projected new contract both parties retained the power to bargain fully concerning its terms. Thus, if the defendants were to advise the plaintiff at any time that acceptance of future orders would no longer involve any contractual obligation to pay the discount, that communication would effectively eliminate all such liability for future orders. This fact fundamentally distinguishes this case from the Cohen case (supra) where the defendant could in no way avoid liability on any accepted orders from the named customers.
Since plaintiff is suing to recover on the basis of a series of independent contracts each consisting of a single offer and a single acceptance, and since it is plain that such contracts were individually capable of performance within one year, I am of the opinion that the Statute of Frauds is not here applicable.
Peck, P. J., Dore and Van Voorhis, JJ., concur with Callahan, J.; Shientag, J., dissents in opinion.
Order reversed, with $20 costs and disbursements to appellants and the motion for summary judgment granted, and judgment is directed to be entered dismissing the complaint, with costs. Settle order on notice.