Zimmerman v. Zimmerman

Sandler, J. (concurring).

These are cross appeals from a judgment entered after a jury trial in favor of the plaintiff, defendant’s daughter, in the amount of $6,709, plus interest and costs, the principal amount representing unpaid tuition fees incurred by plaintiff during attendance at Adelphi University for her second and third years. The judgment was entered following the jury’s affirmative response to the following question put by the trial court: “On September 5,1975, did the defendant make a promise as defined by the court to pay for the plaintiff’s college education which he should have reasonably expected that she would rely upon and did she in fact rely on the promise by *526taking substantial action to her detriment or disadvantage?” The evidence convincingly confirms that defendant had in fact promised that he would pay his daughter’s tuition fees if she attended a local college within commuting distance, and that plaintiff had done so in reliance on that promise. Indeed the defendant in effect acknowledged that he had made such a promise in September of 1975, had reaffirmed it during the summer of 1976, and had paid the first semester’s tuition in August, 1976. Thereafter, consistent with the promise, defendant paid in installments the tuition for the second semester of the first year. The principal issue on this appeal arises out of defendant’s failure to pay the tuition for plaintiff’s college attendance for the second and third years, an omission which has resulted in her legal obligation to pay those sums to the college. We do not disagree with the dissenting opinion’s able analysis of section 5-701 (subd a, par 1) of the General Obligations Law and its description of the development and scope of the doctrine of part performance with regard to agreements that are “not to be performed within one year from the making thereof”.* Our disagreement is rather with the dissenting opinion’s interpretation of the nature of the promise, which assumes erroneously that plaintiff and defendant had entered into a mutually binding agreement under which plaintiff was obligated to attend a local college for four years, and the defendant was obligated to pay tuition fees for that entire period. The genesis of this interpretation may be found in the complaint where it served as a foundation for an effort to recover far more from defendant than the limited sum embraced in the judgment. The reality disclosed by the record, whichever of the several versions of conversations is accepted, is very different. The defendant promised to pay the plaintiff’s tuition fees if she attended a local college. It was implicit in that promise that he would pay such fees only as long as she continued to attend a college within commuting distance. Even if one credits plaintiff’s testimony that she agreed to go to such an institution, we are not persuaded that plaintiff assumed a legally enforcible obligation to attend the college for four years. Having commenced her matriculation at Adelphi, plaintiff at all times had the right to discontinue her attendance for any of the reasons that commonly lead many college students either to drop out of school or to change schools to one that seems to them more appropriate or congenial. Moreover, in our view of defendant’s promise, and consistent with the principles of promissory estoppel underlying the jury’s verdict, defendant reserved the right at any time to terminate his undertaking with regard to the payment of tuition fees for future semesters. Under the circumstances presented, we reject, as did the trial court, plaintiff’s thesis that once she had started to attend Adelphi, defendant was bound to pay plaintiff’s tuition fees "as long as she continued to matriculate there. Providing only that defendant gave appropriate notice to plaintiff, so that she could timely make other arrangements, thereby avoiding further substantial detrimental reliance, he at all times had the option to terminate or limit his future obligation. For these reasons defendant’s promise was capable of performance within one year and therefore its enforcement does not violate section 5-701 (subd a, par 1) of the General Obligations Law. (North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171; Nat Nal Serv. Stas. v Wolf, 304 NY 332; see Duncan v Clarke, 308 NY 282, 286.) Defendant did not withdraw his promise during the plaintiff’s second and third years at college. Plaintiff testified, and the defendant did not deny, that he repeatedly assured her during her second and third years at college that he would pay the tuition fees when he had the money. The issue raised by this aspect of the testimony was not submitted by the trial court to the jury on the *527apparent view that it was not embraced within the pleadings. We nonetheless believe that these separate repetitive promises, not contradicted by the defendant during his testimony and confirmed by his admission that on at least one occasion he so assured the Adelphi bursar, independently support the judgment. For it is readily apparent that these promises, unmistakably keyed to the payment of current tuition charges, were each performable within a single year, and that they were relied upon by plaintiff. (Nat Nal Serv. Stas. v Wolf, supra, 304 NY 332.) The order and judgment, Supreme Court, New York County (Kassal, J.), entered April 18, 1980, awarding plaintiff $6,709, plus interest and costs after a jury trial, should be affirmed, without costs.

As to the dissenting opinion’s interesting discussion of the law of fraudulent representation, we are unable to perceive its relevance to any issue presented on this appeal.