(concurring). The ground for affirmance, relied upon by Judge Conway in his able opinion, is a valid and sufficient reason for that result. However, I think this court should go further and, by stating another and equally valid ground for affirmance, decide and set at rest a question of law which has been left undecided, in this State, for decades. We should not, of course, reach out, on any appeal, for questions unnecessary to decision. But the primary function of this court is to settle and state the law of this State for the information and guidance *307of its citizens, and, unless we do so when occasion arises, a question like this can remain unanswered forever.
The important question of law to which, as I think, we should now give answer, is this: will the courts of this State enforce an oral agreement which has been made in another State where such oral agreements are valid, but which is of a kind that, under the New York Statute of Frauds, must, for enforcibility, be in writing?
I think that our answer to that question should be ‘ ‘ no ”, and that we should declare the New York rule to be as set forth in the Restatement of Conflict of Laws (§ 602, comment a) as follows: “ If the statute of frauds of the forum requires a written agreement as a condition of bringing action on a contract of a certain sort, no action can be maintained on a foreign oral agreement even if it complies with the law of the place of contracting.” That rule would derive, naturally and logically, from the settled New York rule that our Statute of Frauds is not substantive but procedural, that it makes oral agreements not void but unenforcible, and that it is, therefore, a rule of evidence for the New York courts (see Justice v. Lang, 42 N. Y. 493, 500, 501; Crane v. Powell, 139 N. Y. 379, 384).
Lewis, Ch. J., Dye, Fuld and Fboessel, JJ., concur with Conway, J.; Desmond, J., concurs in separate opinion; Loughban, Ch. J., deceased.
Judgment affirmed.