OPINION OF THE COURT
Lupiano, J.Plaintiff in his complaint alleges an agreement entered into by plaintiff and the defendants in November, 1977, whereby defendants agreed to pay plaintiff upon completion of a certain motion picture, 25 % of the “markup” or gross profits payable for production services to be supplied by defendants in the making of such film, which agreement was *234thereafter amended to reduce the compensation payable to plaintiff to 12y2 % and that, the picture having been completed, the defendants refused to pay this compensation, although due and duly demanded. In their answer, defendants admit the agreement and its modification, but contend that such agreement as modified provided for compensation payable to plaintiff only “as and when actually paid” by the producer of the film to EUE/Screen Gems, a division of Columbia Pictures Industries, Inc. As a first affirmative defense, defendants assert that the agreement alleged by plaintiff in his complaint is barred by the Statute of Frauds “except to the extent any such agreement is hereinbefore admitted to exist on the part of Production”, the corporate defendant.
Issue having been joined, defendants move for summary judgment pursuant to CPLR 3212 on the ground that the oral agreement which plaintiff asserts in his complaint is unenforceable by virtue of the Statute of Frauds. The parties entered into a stipulation “admitting facts not in dispute and limiting issues in dispute” dated October 19, 1979. In that stipulation defendants again admitted that plaintiff, a cinematographer, film director and commercial television producer, in October, 1977, informed them that he might be retained as cinematographer for a motion picture tentatively entitled “California” to be produced by one Brooks. It was admitted that plaintiff offered to introduce the corporate defendant to the producer, who was in need of production services in connection with the picture, and that as a result, the corporate defendant through its president, the individual defendant, entered into an oral agreement with plaintiff predicated upon Brooks’ subsequent engagement of the corporate defendant to provide certain production services. It was admitted that the corporate defendant, being unable to undertake the task of rendering all the production services required by the producer, introduced the producer to another party who performed production services, to wit, EUE, and that EUE and the producer entered into an agreement for the rendition by EUE of production services. It was further admitted that EUE and the corporate defendant agreed that in return for said defendant’s referral of the producer Brooks to EUE and for said de*235fendant’s performance of certain limited production services in connection with the film, the “markup” would be divided as follows: 12% to plaintiff and the balance between EUE and the corporate defendant equally.
On this record Special Term granted summary judgment to the individual defendant, dismissing the complaint as to him, on the ground that there was no showing that he entered into the agreement with plaintiff in his individual capacity apart from his capacity as president of the corporate defendant. We agree with Special Term’s determination in this regard. However, Special Term also granted the corporate defendant summary judgment dismissing the complaint on the ground that the alleged oral agreement sued upon by plaintiff involved a contract to pay for services rendered to a principal as a finder or business broker in negotiating a business opportunity and hence was violative of the Statute of Frauds and unenforceable. This result fails to perceive that the defendants have at all times, both in pleading and in entering into the stipulation, admitted the oral agreement and that the only real dispute between the parties is when the 12% compensation is payable to plaintiff—plaintiff contending that the defendants who were purportedly' holding $20,000 of EUE’s money guaranteed payment to plaintiff on completion of the picture, and defendants contending that the compensation due plaintiff was payable or contingent upon payment by EUE to the corporate defendant of the portions of the “markup” due the corporate defendant and plaintiff.
As the defendants by their answer admitted, an oral agreement with subsequent modification entered into by the corporate defendant with plaintiff, and as they have set up the Statute of Frauds as a defense only as to those aspects of the agreement relied upon by plaintiff, not admitted to by defendants, it is clear that the Statute of Frauds has been waived (see 56 NY Jur, Statute of Frauds, § 358). This conclusion is buttressed lay the admissions of fact and contentions advanced by defendants in the stipulation alluded to above. The evidentiary aspect of such stipulation, viewed in the context of the pleadings, does not permit of the award of summary judgment to the corporate defendant dismissing the complaint under the Statute of Frauds. It is clear *236in New York that “an oral contract falling within the prohibition of the statute is merely * * * voidable rather than absolutely void. Thus, the statute of frauds is viewed as only a rule of evidence, that is, the statute affects the proof of the agreement and does not render it absolutely void or illegal, but only voidable, at the election of the party to be charged” (56 NY Jur, Statute of Frauds, § 318).
Of course, the above analysis presumes that the oral agreement relied on by plaintiff is one within the ambit of the Statute of Frauds. However, apart from such analysis, there is another basis warranting denial of summary judgment relief on this record. The oral agreement relied on by plaintiff is not particularized in the complaint, the particulars being supplied by way of answer and the afore-mentioned stipulation. Thus, the interpretation, the construction of the oral agreement, becomes critical. Plaintiff, in his affidavit in opposition to defendants’ motion for summary judgment, advances the view that the oral agreement, as modified, entered into by him with defendants, constituted an agreement between cofinders not subject to the Statute of Frauds. He points out that “(t)he defendants do not deny the making of the agreement or the modification of the agreement. They do not even deny that the amount due is $27,781.25. The defendants only deny that the money is due to plaintiff at present.”
In response, defendants submit a reply affidavit by counsel (not, in this context a party, with knowledge of the facts) who simply asserts that defendants have not admitted that the parties entered into a cofinder agreement. This is not sufficient to warrant a conclusion as a matter of law that the agreement sued upon is within the Statute of Frauds. Credibility is lent to the plaintiff’s characterization of the oral agreement as one between cofinders for purposes of disposing of the defendants’ summary judgment motion by virtue of the defendants’ admission that plaintiff was entitled to share in the “markup” obtained by EUE to the extent of 12y2 %. If the relation between the parties is such that they did not enter into a cofinder relationship, then there would simply be no reason other than unalloyed beneficence and a charitable sense for the corporate defendant to *237obtain a “slice of the pie” for plaintiff. Businessmen simply do not act this way, as a general rule.
As it is arguable on this record that the parties orally agreed to a cofinder relationship, and as such an agreement is not within the purview of the Statute of Frauds, it follows that plaintiff’s complaint should not have beep dismissed as against the corporate defendant (see Dura v Walker, Hart & Co., 27 NY2d 346).
In conclusion, the following oft-cited propositions are recollected: that on a motion for summary judgment “[i]s-sue-finding, rather than issue-determination, is the key to the procedure” (Esteve v Abad, 271 App Div 725, 727) and that as the granting of a summary judgment motion is the procedural equivalent of a trial, such drastic relief should not be granted where there is any doubt as to the existence of a triable issue (see Crowley’s Milk Co. v Klein, 24 AD2d 920; Moskowitz v Garlock, 23 AD2d 943).
The order, Supreme Court, New York County (Tierney, J.), entered April 14, 1980, and judgment of said court, entered April 17,1980, pursuant to said order which granted defendants’ motion for summary judgment dismissing the complaint, should be modified, on the law, to the extent of reversing the grant of summary judgment dismissing the complaint to defendant Fred Cammann Productions, Inc. and denying the corporate defendant’s motion for summary judgment, and, as so modified, should be affirmed, without costs and disbursements.