I am unable to agree with the majority that the Statute of Frauds (General Obligations Law, § 5-701, subd a) does not bar suit on this claimed three-year oral contract of employment. Contrary to the conclusion reached by them, the recital in the profit-sharing agreement of March 25, 1975, is insufficient to constitute "some note or memorandum [of the alleged three-year oral agreement of employment] in writing, and subscribed by the party to be charged”. The recital referred to is no more than a precatory statement. It reflects the intent of the parties. That plaintiff was not bound by the three-year term and was left free to terminate his employment without incurring any liability for breach of the so-called "oral agreement” is manifest from other provisions of the profit-sharing agreement. Thus, the *485obligation to share profits set forth in paragraph 1 is conditioned upon plaintiff’s remaining an employee during the defined earnings period. Paragraph 3 confers upon plaintiff the right to "voluntarily” terminate his employment with the forfeiture of his right to share in the profits as the only penalty to be incurred therefor. Not only do these provisions negate agreement as to a fixed term, they made clear that no fixed term existed. Hence, no note or memorandum sufficient to meet the mandate of the statute was ever executed.
On the other hand, I agree with the conclusion of the majority that the amendment of the agreement between Gould and Fell, on the one hand, and Interco, on the other, dated May 24, 1977, which changed the period which would serve as a basis for computing the right of Gould and Fell to share in the earnings of Interco from the three-year period preceding February 28, 1978 to the three-year period preceding February 28, 1979 did not inure to the benefit of plaintiff. This amendment to the original agreement followed by some time plaintiff’s departure from employment. Plaintiff’s agreement with Gould and Fell expressly limited his right to share in their profits to the three-year period ending February 28, 1978. Nothing in the agreement of May 24, 1977 between Gould and Fell and Interco and nothing in the evidence presented at the trial indicated an intent to make plaintiff the beneficiary of the agreement. Hence, he is not entitled to use the three-year period ending February 28, 1979 as a base for computing his share of the profits.
There remains only the computation of damages to be assessed in connection with the profit-sharing agreement. Using the formula so meticulously worked out by Justice Lupiano, this would entitle plaintiff to damages of $2,924.32.
Accordingly, I would modify the judgment to the extent only of awarding damages to plaintiff in that sum and otherwise affirm.