Borden v. Chesterfield Farms, Inc.

Steuer, J. P. (concurring).

I concur in the result but arrive at the conclusion by a somewhat different course than that *168expressed in the majority opinion. It was not error to refuse to allow amendment of the answer to plead the Statute of Frauds but only because the statute did not apply. Such leave should be freely given (CPLR 3025). Even prior to the mandate of the statute, the application was timely in that defendant was not aware, prior to the trial, as to what plaintiffs were going to testify to as to the duration of the contract. Actually no one testified that there was any discussion about the duration of the contract. One plaintiff testified that it was to last “forever.” Under familiar rules, a contract without time limits is terminable at will (Churchill Evangelistic Assn. v. Columbia Broadcasting System, 236 App. Div. 624; 1 Williston, Contracts [3d ed.], § 38, pp. 115-116). Having been so terminated, it was fully performed and the statute would not be applicable. Under the interpretation that the contract was to last as long as the parties were in business, it is very doubtful whether the statute would apply. None of the cases cited in the majority opinion is based on that express term. However, in view of the conclusion reached, a discussion in depth as to why a contract on the stated term would be vulnerable to the statute is not called for.

Plaintiffs’ right of recovery here rests on their acting in pursuance of a promise to their detriment (Restatement, Contracts, Tentative Draft No. 2, 1965, § 90; see especially Illustration 12). As such, their damages would be what justice would require (Restatement, op. cit.; see, also, Suslak v. Rokeach & Sons, 269 App. Div. 779, affd. 295 N. Y. 799). The method of computation outlined in the majority opinion does, in my opinion, conform to that standard.

Capozzoli and Rabin, JJ., concur with McNally, J.; Steuer, J. P., concurs in opinion.

Judgment, so far as appealed from, unanimously reversed upon the law, upon the facts and in the exercise of discretion, without costs and without disbursements, and a new trial ordered limited to the issue of damages. (Mercado v. City of New York, 25 A D 2d 75.)