dissenting:
Believing that the oral lifetime employment contract as claimed by plaintiff is void under the New York Statute of Frauds, I am compelled to dissent. The majority decision appears not only to be in error, but also to be particularly unfair to defendant in light of the way the case was tried, the instructions of the trial judge to the jury, and the form of the special questions submitted to the jury.
Although there is no disagreement with much of the ably expressed majority opinion, the issue between us needs to be carefully explained.
I
The “oral employment contract,” as claimed by Ohanian in this Court (Brief for Ohanian, p. 7) — and at all times since the action began (A 6-18; “A” references are to pages of volume I of the Joint Appendix) —was a “lifetime employment contract” (Brief for Ohanian, p. 1), which he could terminate at any time, but which Avis could terminate only for “just cause.” The evidence showed that the words “just cause” were never used. The evidence for plaintiff showed, if believed, that Ohanian was guaranteed his job for life “unless he totally screws up” (A 304), and that Ohani-an was told he would not be fired “unless you screwed up badly” (A 304). “Just cause” was the legal term selected by counsel for Ohanian as a translation of the words actually used: “totally screws up” and “screwed up badly.”
The answer of Avis denied the existence of the oral employment contract as averred by Ohanian, pleaded as an affirmative defense that his employment was governed by a written agreement dated April 21, 1981, under which both Avis and Ohanian “can terminate [his] employment at will,” and pleaded as an affirmative defense the New York Statute of Frauds. (Jurisdiction had been based by plaintiff on diversity of citizenship.) The answer also contained a counterclaim alleging that Ohanian “fraudulently submitted expense reports” and that Avis was entitled to recover from him a sum to be determined.
II
Because of the way the case was tried and the form of the questions put to the jury, the decision of this appeal turns on the meaning of “just cause” for the contract here in suit.
As already noted, the words “just cause” were never used by the parties in the oral contract they made. The words actually used were that Avis would not terminate Ohanian’s employment unless “he totally screws up” (A 281-82); Avis told Ohanian: “unless you screwed up badly there is no way you are going to get fired” (A 304). Counsel for Ohanian has avoided any statement of the right of Avis to terminate in the actual words of the contract; counsel for Ohanian prefers to use “just cause” in place of the words actually used. Counsel for Avis did not object to this, apparently in part because Avis has always claimed that the employment agreement was written, {not oral) and was terminable by either side at any time, and in part because Avis reasonably believed that “just cause” was intended as a synonym for “totally screws up” or “screwed up badly” and would be (and was) defined to the jury as such; this belief is reflected in the definition of “just cause” requested by Avis as a jury instruction and in the authorities cited to support it (Court Exhibit 2, A 23-24).
The question which should have been put to the jury, in my view, is: Did Ohanian prove that Avis agreed to employ him until he retired unless he was terminated because he “totally screws up” or “screwed up badly”?
Ohanian requested, however, that the question be put to the jury using the expression “just cause” instead of the contract words “totally screws up” or “screwed up badly,” and without objection from Avis, Chief Judge Weinstein did so.
It is undisputed that under the New York Statute of Frauds, if an agreement may be terminated by one party solely for breach of the agreement by the other par*112ty, the agreement is barred by the Statute of Frauds. This is because breach of the agreement is not performance.
It had many years ago been determined that where either party might terminate at will within the one year, this rightful termination was performance and took the contract out of the Statute. Blake v. Voight, 134 N.Y. 69, 72, 31 N.E. 256 (1892). But it is otherwise when the contract may be terminated only for a breach by the other party. “Being terminable only by plaintiffs breach, the agreement alleged in the complaint was not one which by its terms could be performed within one year. As such, it came within the ambit of the Statute of Frauds and is void for being unwritten.” Boening v. Kirsch Beverages, 63 N.Y.2d 449, 458, 483 N.Y.S.2d 164, 472 N.E.2d 992 (1984) (emphasis in original).
Avis has contended, and does so in this Court, that the Statute of Frauds makes the oral agreement void under this principle because (Brief, p. 13; emphasis in original):
Both plaintiff and Mahmarian [general manager for Avis when the contract was made; dismissed about the same time as Ohanian] testified that plaintiff could remain at Avis until retirement unless he totally fouled up. Thus, the only “just cause” for terminating the agreement would “be the other party’s [plaintiffs] breach.” Plaintiffs alleged oral agreement falls squarely within the holding in Boening and its enforcement is barred by the Statute of Frauds.
Avis at trial argued that the oral contract to which Ohanian had testified at trial and Mahmarian had testified by deposition meant that Ohanian could be dismissed only for breach by him of the contract. After the plaintiff had rested at trial, Avis moved, among other motions, to dismiss on the Statute of Frauds. The discussion at this point ended with an argument by counsel for Avis as follows (Tr. 679-80; “Tr.” references are to pages of the stenographic transcript; emphasis supplied):
So what did Mr. Ohanian tell us? He said that the only way he can get fired from Avis is if he totally ¿fouls up. There’s no issue here about whether or not Mr. Mahmarian told him or he understood that if Avis somehow needed to reorganize or if it was in the best interest of Avis for numerous reasons which Boening didn’t specify what they were, but they said there could be other reasons other than the employees misconduct which could lead to termination, but those aren’t present here. Mr. Ohani-an’s own words on Page 54 of the transcript was that, I will stay at Avis unless I totally foul up.
So that the only possible reason for the contract to end before a year is on the grounds of defeasance on the grounds of wrongful conduct by Mr. Ohanian, some type of just cause.
Now, it is not a contract which is provable because it’s barred by the statute of frauds. And we again renew our motion to dismiss the lifetime claim on the grounds of the statute of frauds. That’s the second part of our motion.
The COURT: Decision reserved.
After both sides had rested, the motions for Avis were renewed and decision again reserved by the district court (Tr. 799). So far as can be found from the record, there was never any decision on the motions, but from the fact that judgment was entered on the jury verdict, it must be assumed that sub silentio and by implication they were denied; the denial, as I see it, was erroneous. In any event, there is no indication in the record that counsel for Ohanian ever argued that Ohanian could be terminated “if adverse market conditions.... would force Avis to make a change in its business strategy” or “for reasons other than the plaintiff’s breach,” as the majority now holds. To the contrary, Ohanian has always insisted that he was induced to leave California only by an oral contract giving him lifetime job security unless he “totally screws up”.
Ohanian therefore has never claimed that Avis had any right to fire him except for a breach by him of the oral contract. Counsel for Ohanian has urged an entirely dif*113ferent argument to defeat application of the Statute of Frauds, (Brief, pp. 16-17):
Here, clearly, is a description of Ohani-an’s option to discontinue the contract if he were dissatisfied with how it was working out — an option which Boening, some two years later, was to say took the agreement out of the Statute of Frauds (if ever it was there).
Although neither party ever made the claim in this Court or in the trial court, the majority now holds (opinion, p. 6717) that under the oral contract here in suit “there may be just cause to dismiss without a breach” by Ohanian. For this reason, the majority rejects the application of the Statute of Frauds and affirms the judgment against Avis. There being no evidence that the oral employment contract gave Avis any right to dismiss Ohanian unless he “screwed up badly,” unless “he totally screws up,” the Statute of Frauds in my view makes the oral contract void; the majority seems clearly wrong.
Ill
The case for Avis as presented to the jury in summation was that “Ohanian was a dishonest employee who broke company policy and neglected his responsibilities” (Tr. 823). This was the beginning of the summation for Avis. The argument was also made for Avis that a written contract, signed by both parties, allowed either party to terminate at will and governed their relationship. If the jury were to find that no such written contract was intended, then the oral employment contract would become the issue. Counsel for Avis referred in summation to evidence that Oha-nian was told that he would not be fired “unless you totally foul up” (Tr. 830), “unless he screwed up badly” (Tr. 835), “if he didn’t do the job, if he screwed up, he would go out” (Tr. 836), “he has a right to stay at Avis the rest of his life unless he totally fouls up” (Tr. 846), that Ohanian was terminated for “malfeasnace, dishonors” (Tr. 847), that Ohanian was stealing from Avis (Tr. 852), that Ohanian was “a person who was dishonest,” “a person who ignored the duties of his office” (Tr. 852), that he made “a bid which is against company policy” and “refused to abide by the rules” (Tr. 854), that he admitted taking his girlfriend to Boston and charged all expenses to Avis (Tr. 857), and that he admitted “a thousand dollars worth of false charges” (Tr. 858). Counsel for Avis ended the summation by stating (Tr. 863) that “plaintiff has told you that he would not be fired by Avis unless he totally fouled up. We say that he had no such agreement with Avis, but even if he did, the evidence that you have heard establishes conclusively that Mr. Ohanian in July of 1982 really fouled up.”
The case for Ohanian as presented to the jury in summation emphasized that Ohani-an was primarily concerned about job security, that he must have his job for life unless there was fault on his part. The proposal for Avis through Mahmarian, to which Ohanian agreed, is quoted by his counsel in summation to the jury from the deposition of Mahmarian, as follows:
I would guarantee this man his job. There is no way, as long as he has done a good job, unless he totally screws up somehow, and even then he can’t get hurt, because I will give him the month per year severance_ (A 281-82; emphasis supplied).
Counsel for Ohanian also quoted Mahmari-an to this Court (Brief, p. 8):
Q. And did you explicitly tell Mr. Ohani-an that he would not be fired unless it was for cause?
A. Unless he screwed up, I didn’t use the word — I remember using screwed. Unless you screwed up badly, there is no way you are going to get fired_ (A 304; emphasis supplied).
Counsel for Ohanian concludes his argument that Ohanian was asking for security (Brief, p. 9):
Ohanian’s concern for security had thus been satisfied. Mahmarian’s personal policy of not firing anyone without just cause was made explicit to Ohanian on behalf of Avis.
*114The further argument for Ohanian to the jury in summation was that he was a “hard worker” (Tr. 864), a “star salesman” (Tr. 865), that “he was responsible for annual revenues for Avis of approximately $100,-000,000 a year” (Tr. 865), that he had “exceptional mastery of all phases of work” (Tr. 867), that his firing “was not a firing for cause” but “was a new management team taking over” (Tr. 867), that Avis thought “he was the best man we had” (Tr. 868), that Avis had a hard time to persuade Ohanian to leave California because he wanted job security and was “doing a good job and he would rather stay there” (Tr. 870), that Avis told him “he need not be concerned that he would never get hurt ... unless he screwed up totally, he was not going to get burned” (Tr. 871), that Avis told him (Tr. 876): “If he did the job, he had a place in that company. If he didn’t do the job, if he screwed up, he would go out and at worst get the severance.”, that “expense report irregularities” were “a sham,” and “[t]his was a pretext and a sham” (Tr. 899-900), that when Ohanian was “up in Boston he took his brother out once with Nancy Edwards and then took Nancy Edwards on one occasion. I am telling you that ... was a commonly accepted practice by people at Avis ...” (Tr. 908), that Avis “tried to make Ohanian appear to be a thief in front of you” (Tr. 909), and that Avis “came in here with a lot of reasons which were not the reasons for sacking him” (Tr. 915). It was emphasized to the jury that the oral promise to Ohani-an was the job security he sought — that he could not be dismissed unless he “totally screws up”.
Counsel for Ohanian told the jury (Tr. 886):
And what did it cost Avis? Think about this. Think of the logic of it. You have got a man that is an absolute star. If things go as you are fully sure they’re going to go, he is not going to foul up, he is always going to be a star, he is your top salesman, the best you have ever had.
* $ * * *
Wasn’t that a sensible thing to offer Ohanian? I give you [my] word. You say you are going to be out there [California] and you are going to retire from the company because you are a star and you like it out here, [New York], you are going to retire from the company unless you foul up. Right. That was the promise. The promise he couldn’t refuse. The promise he should have refused.
The record is clear that the case on the oral contract was tried to the jury on the premise by both sides that Avis could dismiss Ohanian only if he “totally screws up,” meaning “did not do the job,” violating his employment agreement. Counsel for Avis argued that Ohanian “was a dishonest employee who broke company policy and neglected his responsibilities” (Tr. 823). Counsel for Ohanian argued that the firing was not “for cause,” and not because “somebody did something wrong,” but because “this was a new management team taking over” (Tr. 867).
The issue as presented for the parties to the jury was completely inconsistent with the holding of the majority that under the oral contract “there may be just cause to dismiss without a breach [by Ohanian].”
IV
The parties in their requests to charge— and at all other times — used “just cause” to express the right of Avis to dismiss Ohanian contained in the words of the oral contract: “totally screws up” or “screwed up badly.”
Plaintiff did not ask for any instruction on the meaning of “just cause.”
Counsel for Avis asked for an instruction on “just cause” as follows (Court Ex.2, A 23):
Defendant bears the burden of proof of establishing that plaintiff was discharged for just cause. In deciding whether plaintiff was discharged for just cause, however, you may not consider whether defendant had other reasons for firing him. Rather, if you find that *115plaintiff breached his duty as an employee to defendant or failed to comply with plaintiffs reasonable instructions, you must return a verdict for defendant. If an employee has an agreement where-under he could only be terminated for “just cause,” then misconduct, neglect of duties, insubordination, dishonesty, padding expense accounts, and other such disloyal acts supplies that “just cause” and entitles the employer to terminate the employee.
The trial judge gave this request in substantial part (making some additions and subtractions) as follows (A 63):
Defendant bears the burden of proof of establishing that plaintiff was discharged for just cause. If you find that plaintiff breached his duty as an employee to defendant or failed to comply with defendant’s reasonable instructions and that this was the reason he was discharged or that there was an otherwise valid reason for discharge, you must return a verdict for defendant. If an employee has an agreement providing that he could only be terminated for “just cause,” then substantial misconduct, neglect of duties, insubordination, dishonesty, falsifying expense accounts, and other such disloyal acts supply that “just cause” and entitle the employer to terminate the employee. But if he was really fired for another invalid reason and these were merely excuses or pretexts, they would not constitute just cause.
This instruction, as I read it, clearly and correctly equates “just cause” for the oral 'contract in suit with breach of the contract by Ohanian. Indeed, the text from which the trial judge read his charge to the jury, at the end of the section “breach of contract” which contains the instruction on “just cause” quoted above, lists the authorities in support of the charge as given (A 53); they are the same authorities cited by Avis in support of its request on “just cause” (A 23), except for the addition of the New York Pattern Jury Instructions — Civil 4:21 Comment p. 225 (Supp. Nov. 1984).
In New York, a breach by an employee of the employment contract is ground for dismissal, whether or not there is a termination provision for “just cause.” Grozek v. Ragu Foods, Inc., 63 A.D.2d 858, 406 N.Y.S.2d 213, 214 (1978) (“If, however, the employment is for a definite term, the employer, in order to justify a discharge, must be able to show a breach by the employee of some express or implied provision of the contract.”) The New York cases and other authorities cited by Avis, as shown above, and accepted by the trial judge, all dealt with breach of contract by an employee and not with the meaning of “just cause.”
a.
In the instructions, “breached his duty as an employee” states a breach of contract by an employee which would justify dismissal. Rudman v. Cowles Communications, Inc., 35 A.D.2d 213, 216, 315 N.Y.S.2d 409 (1970) (“then the disobedience is a breach of duty and like other breaches, entitles the employer to rescind the employment contract”), modified on other grounds, 30 N.Y.2d 1, 330 N.Y.S.2d 33, 280 N.E.2d 867 (1972).
b.
In the charge, “failed to comply with reasonable instructions” is a paraphrase of “disobedience of reasonable orders” quoted by Williston as a “well stated” violation of an employment contract justifying its termination by the employer. 9 Williston on Contracts § 1012B, at 30 (3d ed. 1967); accord Jerome v. Queen City Cycle Co., 163 N.Y. 351, 356, 57 N.E. 485 (1900) (disobedience of reasonable orders “justifies rescission of the contract by the master and the discharge of the servant”).
c.
In the Avis requested definition, one of the examples of “just cause” was “misconduct” of Ohanian. In the charge as given, “substantial misconduct” was the expression. This was because counsel for Ohani-an wanted the jury told that it should balance prior years of good conduct against the misconduct now claimed by Avis. (T. 804; “T” references are to pages of Volume II of the joint appendix.) The trial *116judge declined to do this, but, without objection for Ohanian, added the word “substantial” before “misconduct” in order to meet the point (T. 804). Either “misconduct” or “substantial misconduct” clearly states a breach of contract by an employee. LaDuke v. International Paper Co., 258 A.D. 375, 17 N.Y.S.2d 608, 610 (1940) (employer may discharge employee “for misconduct or if the work is not done as directed”).
d.
In the instructions, “neglect of duties” states a violation by an employee of an employment contract. Farquhar v. American Code Co., Inc., 201 App.Div. 408, 459, 194 N.Y.S. 492 (1922) (“[I]f the plaintiff failed to perform his duties or to obey reasonable orders, the defendant was at liberty to discharge him.”) (dictum), aff'd, 234 N.Y. 650, 138 N.E. 483 (1923).
e.
In the instructions, “insubordination” is another example of conduct which would be a violation of an employment contract. Williston states: “Disobedience which is accompanied with an element of insubordination” ... will always justify immediate discharge. 9 Williston on Contracts § 1013B, at 49; accord Speiden v. Innis, Speiden & Co., Inc., 216 A.D. 408, 215 N.Y.S. 515, 515-16 (1926) (discharge of employee justified by his “insubordinate letters” and refusal and neglect to obey orders).
f.
In the instructions, “dishonesty” describes conduct which would be a breach of an employment contract and ground for discharge. Hadden v. Consolidated Edison Co., 45 N.Y.2d 466, 410 N.Y.S.2d 274, 276, 382 N.E.2d 1136, 1138 (1978) (employee’s conceded acceptance of bribes and gifts from those doing business with employer “constituted such grave misconduct and dishonesty as to justify the servant’s discharge”).
g-
In the Avis requested definition, one of the examples of “just cause” was “padding of expense accounts.” In the charge as given, “falsifying of expense accounts” was the expression. This was by agreement of both sides, approved by the trial judge (T. 803-04). “Padding of expense accounts” or “falsifying of expense accounts” (which seem equally dishonest) would be a breach of the employment contract. 3A Corbin on Contracts § 680 (1960) states: “Fraud or dishonesty by an employee in relation to his employer is sufficient ground for his discharge. Obvious cases include ... padding expense accounts.”
h.
In the instructions, “other such disloyal acts” is a description of acts of an employee which would be breaches of the employment contract because “such” refers to “substantial misconduct” and the other enumerated violations, all of which are breaches of the employment contract. In Sunland v. Korfund Co., 260 A.D. 80, 20 N.Y.S.2d 819, 821 (1940) “disloyalty” is stated to be a violation of the employment contract.
i.
The trial judge made some additions and subtractions to the definition of “just cause” requested by Avis. As will be seen, these were certainly not for the purpose of enlarging the definition to mean that “just cause can be broader than breach and here there may be just cause to dismiss without a breach [by Ohanian],” as the majority now holds.
The additions made by the trial judge were caused by a sentence in the Avis requested instruction (Court Exhibit 2, A 23): “In deciding whether plaintiff was discharged for just cause, however, you may not consider whether defendant had other reasons for firing him.” Ohanian asked for the following contrary instruction on this point (Requests to charge p. 6): “In deciding whether plaintiff was discharged for just cause, however, you may not consider whether defendant had other reasons for firing him.” Ohanian asked for the following contrary instruction on this point (Requests to Charge p. 6): “In deciding *117whether plaintiff was discharged for just cause, however, you may not consider whether defendant had other reasons for firing him.” Ohanian asked for the following contrary instruction on this point (Requests to Charge, p, 6): “In deciding whether plaintiff was discharged for just cause, however, you need not, but may, consider whether defendant had other reasons for firing him.”
Declining to give either of the requested charges on “other reasons” for a discharge, the trial judge ruled that the real reason in fact for his discharge could be considered by the jury; if the real reason for the discharge was “just cause” as defined in the charge, then there should be a verdict for defendant, but if the real reason for the discharge was not “just cause” as defined in the charge, then Avis would be liable for a wrongful discharge. To meet the first alternative, the trial judge added to the Avis request, the words “or that there was an otherwise valid reason for discharge.” If the other and real reason were a “valid reason” (that is, plaintiff had been at fault in the performance of his job in some way other than, but equally serious as, a breach of duty as an employee or a failure to comply with reasonable instructions of Avis) then the real reason was a breach on his part; there was “just cause”, and the jury “must return a verdict for defendant”.
To meet the second alternative, the trial judge added the last sentence to his definition of “just cause”: “But if he was really being fired for another invalid reason and these were merely excuses or pretexts, they would not constitute just cause.” If the other reason were an “invalid reason” (that is, was not “substantial misconduct, neglect of duties, insubordination, dishonesty, falsifying expense accounts, and other such disloyal acts”) then the real reason was not a breach on his part, the real reason was not “just cause”, the reasons alleged for discharge were “merely excuses or pretexts”, and Avis would be liable for an unlawful discharge.
There was nothing in the explanation by the trial judge to the jury of “just cause” which would suggest that Avis could justify its discharge of Ohanian by proof of anything short of a material breach by him of the oral employment contract. There is certainly no hint to the jury that “there may be just cause to dismiss [Ohanian] without a breach [by him],” the holding on which the majority decision is based.
V
The trial judge submitted the case to the jury for answers to written questions (Fed. R.Civ.P. 49(a)). The first two questions, the only ones now relevant, were submitted substantially as proposed for Ohanian and were these:
“1. Did Ohanian prove that Avis agreed to employ him until he retired unless he was terminated for just cause?”
The jury answered “Yes” to this question.
“2. Did Avis prove that Ohanian was terminated for just cause?”
The jury answered “No” to this question.
In the light of these answers and the charge to the jury, judgment against Avis followed for the amount of damages found by the jury in other answers.
The issue on this appeal is whether the agreement as found by the jury — an oral agreement — is barred by the New York Statute of Frauds (N.Y.Gen.Oblig.Law § 5-701(a)(l) (West.Supp. (1984)); the cited section provides in relevant part that every agreement which is not by its terms to be performed within one year from its making is void unless in writing and subscribed by the party to be charged therewith.
As has been pointed out, the decisive question on this issue is: What is the meaning of “just cause” for the oral contract here in suit?
VI
The majority decision rejects the application of the New York Statute of Frauds because the majority holds that under the oral contract in suit “there may be just *118cause to dismiss without a breach [by Oha-nian],” and that Avis could fire Ohanian if “adverse market conditions ... would force Avis to make a change in its business strategy ...” (op. p. 6717) and also “could fire the plaintiff on account of conduct that would not constitute breach of contract” (op. pp. 6717-18). From what words in the oral contract these provisions can be found we are never told; in a careful reading of the testimony, none have been found.
The only explanation for the result reached in the majority opinion seems to be that “under New York law ‘just cause’ for termination may exist for reasons other than an employee’s breach” (op. p. 6716; emphasis supplied) and “some contracts terminable for ‘just cause’ do not require a breach in order to terminate” (op. p. 6716; emphasis supplied). The only precedent and example given for the holding is Weiner v. McGraw Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982).
There can be no disagreement with the statement for the majority that “just cause” for an employment contract “may” include grounds for termination “other than an employee’s breach”; of course, it depends on the definition of “just cause” in the contract and on all the circumstances under which the words of the contract were used. Similarly “some” contracts do not require a breach to be terminable for “just cause”; it depends on how “just cause” is defined in the contract and on all the circumstances under which the words of the contract were used. That there “may” be “some” such cases, however, is no guidance for the particular oral contract here in suit, where the words “just cause” were never defined because they were never used.
In the oral contract in suit, Avis had a right to terminate if Ohanian “totally screws up” or “screwed up badly.” There is no evidence that these words referred to anything other than a breach by Ohanian of the duties and obligations of an employee, a breach of contract. There is no evidence that the words included a right in Avis to terminate whenever Avis was forced “to make a change in its business strategy” or for reasons other than fault on the part of Ohanian.
The majority opinion recognizes (op. p. 6708) that the promise made by Avis to meet “Ohanian’s concerns about security” was: Avis would not fire him unless he “screwed up badly.” It then holds, however, that, despite these words, Ohanian could be fired even though he had not done anything in violation of the employment contract. To me, it is inconceivable that Ohanian — demanding job security to persuade him to leave California — would agree to leave California for an oral contract which could be terminated by Avis without any breach on his part. To give Avis a right to fire him even though he had not “screwed up badly” or “totally” would deprive Ohanian of the very security on which he was insisting.
It would serve no useful purpose to debate the thesis of the majority opinion that “the Statute of Frauds is an anachronism today” and that the “reasons that prompted its passage no longer exist” (op. pp. 6713-14). The New York legislature has not seen fit to repeal the Statute of Frauds and the latest decision of the state’s highest court, so far as research reveals, while recognizing a “narrow interpretation” of the Statute of Frauds which holds some contracts performable within one year to be “saved” from the Statute, states: “... clearly there are others which simply are impossible of completion within that time by their own terms and are therefore void if unwritten.” Boening v. Kirsch Beverages, 63 N.Y.2d at 456, 483 N.Y.S.2d 164, 472 N.E.2d 992. The contract then before the Court in late 1984 was found terminable “only by plaintiff’s breach” and “void for being unwritten.” Id. at 458, 483 N.Y.S.2d 164, 472 N.E.2d 992.
The Statute of Frauds does not seem to be an “anachronism” for such cases as that at bar. The oral lifetime employment contract was claimed by Ohanian to have been made in a telephone conversation between him in California and Mahmarian for Avis in New York. The conversation was not *119recorded; no memoranda were made. The only testimony was, and could only be, that of Ohanian and Mahmarian. Not only was Ohanian a witness hostile to Avis, but, Mahmarian, whose testimony was given by deposition on November 9, 1983 (A 245), had himself been dismissed by Avis on August 4, 1982 (A 246), a few days after Ohanian was dismissed, and was presumably hostile to Avis. Thus, Avis was at the mercy of Ohanian and Mahmarian in the sense that no person and no writing was available to confirm or contradict them; they alone had made the claimed oral contract and there was no writing.
VII
The one “example” which the majority cites for its holding is Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982). There are such enormous differences in significant facts as to make Weiner irrelevant to the case at bar; it affords no support for the holding of the majority.
In the Weiner case, the employment contract was written as well as oral. A written application form signed by Weiner specified that his employment would be subject to the provisions of the McGraw-Hill “handbook on personal policies and procedures.” Id. at 460, 457 N.Y.S.2d 193, 443 N.E.2d 441. The written provision pertaining to termination in the Handbook was:
The company will resort to dismissal for just and sufficient cause only, and only after all practical steps toward rehabilitation or salvage of the employee have been taken and failed. However, if the welfare of the company indicates that dismissal is necessary, then that decision is arrived at and is carried out forthrightly-
Id. at 460-61, 457 N.Y.S.2d 193, 443 N.E.2d 441. Thus it will be seen that in Weiner there was a writing, the -writing used the words “just and sufficient cause,” all practical steps to rehabilitate or salvage the employee were required, and if these failed and “if the welfare of the company indicates that dismissal [is] necessary,” then the company had a right to terminate. The New York Court of Appeals in its Weiner opinion made it clear that the “operative facts deserve emphasis.” Id. at 460, 457 N.Y.S.2d 193, 443 N.E.2d 441. The difference between the written termination provision in Weiner and the oral termination provision in the case at bar (if Ohanian “totally screws up”) is crucial. The New York Court of Appeals itself later described the right to terminate in Weiner as one where McGraw-Hill could “determine for any just and sufficient reason that termination was necessary for the good of the business.” 63 N.Y.2d 449, 458, 483 N.Y.S.2d 164, 472 N.E.2d 992 (1984).
Two other important differences between the case at bar and Weiner should be mentioned. In Weiner, no question as to the Statute of Frauds was raised by defendant, as the Court itself pointed out. 57 N.Y.2d at 463, 457 N.Y.S.2d 193, 443 N.E.2d 441. In Weiner, the case reached the New York Court of Appeals on only a pleading question as to the sufficiency of the complaint; there had been no trial.
VIII
Because the majority has rejected the defense of the Statute of Frauds for a reason never suggested by either party, the majority does not specifically address the argument against the Statute of Frauds which in fact has been urged by Ohanian (Brief, pp. 12-18).
The only argument advanced by Ohanian against the Statute of Frauds (Brief, pp. 12-18) is that since he, the plaintiff, had an option to terminate at any time, the contract was not within the Statute of Frauds. After quoting from the record to show his option to terminate, counsel for Ohanian summarizes his argument as follows (Brief, pp. 16-17):
Here, clearly, is a description of Ohani-an’s option to discontinue the contract if he were dissatisfied with how it was working out — an option which Boening, some two years later, was to say took the agreement out of the Statute of Frauds (if ever it was there).
*120It has for many years been the law of New York that if both parties have the right to terminate a contract at any time, the contract is not barred by the Statute of Frauds. Blake v. Voight, 134 N.Y. 69, 31 N.E. 256 (1892). This is because the contract can be “performed” within a year if either party has a right to terminate it at any time.
But if only the plaintiff, not the party to be charged, may rightfully terminate an oral agreement at any time, the contract is void in New York under the Statute of Frauds. North Shore Bottling v. Schmidt & Sons, 22 N.Y.2d 171, 177 n. 3, 292 N.Y.S.2d 86, 239 N.E.2d 189 (1968); Harris v. Home Indemnity Co., 6 A.D.2d 861, 175 N.Y.S.2d 603 (1st Dep’t 1958); Belfert v. Peoples Planning Corp., 22 Misc.2d 753, 199 N.Y.S.2d 839 (1959), aff'd, 11 A.D.2d 760, 202 N.Y.S.2d 101 (1st Dep’t 1960), aff'd, 11 N.Y.2d 760, 226 N.Y.S.2d 693, 181 N.E.2d 630 (1962); Abady v. Interco, 76 A.D.2d 466, 430 N.Y.S.2d 799 (1st Dep’t 1980); Special Event Entertainment v. Rockefeller Ctr., 458 F.Supp. 72 (S.D.N.Y.1978; Duffy, J.). It may be inferred from its opinion that this principle would be accepted by the majority. The opinion states (pp. 6714-15; emphasis supplied):
Therefore, a contract to continue for longer than a year, that is terminable at the will of the party against whom it is being enforced, is not barred by the statute of frauds because it is capable of being performed within one year.
It seems perfectly clear that the argument against the Statute of Frauds in fact made by Ohanian is without merit.
IX
For the reasons given, I would hold that, under New York law, the oral lifetime employment contract claimed by Ohanian is void for being unwritten. I would reverse and remand with instructions to enter judgment for defendant.
Even if, as the majority holds, the claimed oral contract is not barred by the Statute of Frauds, to affirm the judgment below for $327,693 against Avis seems to me to be unjust and unfair.
The jury has answered two questions:
1. Did Ohanian prove that Avis agreed to employ him until he retired unless he was terminated for just cause?
2. Did Avis prove that Ohanian was terminated for just cause?
The same definition of “just cause” should, and must, govern the determination of both questions.
A majority of a panel of this Court has now determined a question of the New York Statute of Frauds. The oral employment contract gives Avis a right to terminate if Ohanian “totally screws up” or “screwed up badly,” words which were translated into “just cause” in the questions put to the jury. The majority has held that “just cause can be broader than breach and here there may be just cause to dismiss without a breach [by Ohanian]” (op. p. 6717), that “there would be just cause for.... dismissal [of Ohanian]” if the results achieved by Ohanian “might prove poor because of adverse market conditions” and if this forced Avis “to make a change in its business strategy” (op. p. 6717), and that Avis could fire Ohanian “on account of conduct that would not constitute breach of contract”(op. p. 6718).
Because of the way the case was tried and the understanding of the parties as to the meaning of the oral contract, the jury was instructed in substance that “just cause” — as a translation of “totally screws up” and “screwed up badly” — meant breach of the contract by Ohanian by such breaches of duty as substantial misconduct, dishonesty, and falsifying expense accounts, etc. The jury answered the questions based on the trial court’s instructions. They were never told that “ ‘just cause’ for termination may exist for reasons other than an employee’s breach” (op. p. 6716), that “ ‘just cause’ can be broader than breach and here there may be just cause to dismiss without a breach” (op. p. 6717), that “under the terms of the contract it would be possible that despite [Ohanian’s] best efforts the results achieved might *121prove poor because of adverse market conditions” and that this “would force Avis to make a change in its business strategy, perhaps reducing or closing an operation” and that “there would be just cause ... for dismissal [of Ohanian]” (op. p. 6717), that “the contract provided that plaintiff could be terminated for reasons other than [Oha-nian’s] breach” (op. p. 6717), or that Avis “could fire [Ohanian] on account of conduct that would not constitute breach of contract” (op. pp. 6717-18).
Had the parties realized that the meaning of the contract they had made was as now held by this Court, they surely would have submitted further and different evidence and arguments to the jury. Had the jury been given the explanation of “just cause” for the oral contract in suit as now made by this Court, it surely would have taken additional and different material into consideration. Whether the result would have been different is speculative, but, particularly as to whether Avis had “just cause” to dismiss Ohanian, the result might very well have been different. The burden of proof on Avis to show “just cause” under the very broad meaning now given to the oral contract by the majority would have been very much lighter than under the instructions given to the jury at the trial. “Just cause” was explained to the jury in the context of the contract in suit, the words actually used in the contract, and the circumstances of the parties. The majority has, with deference, divorced “just cause” from the operative facts and has treated it as a legal constant, having a fixed and changeless meaning without regard to the facts.
Ohanian, of course, now has the best of all possible worlds. Under his claim of a limited right of dismissal in Avis and only for breach of contract by him (“totally screws up,” “screwed up badly”), a heavy burden was placed on Avis at trial and Ohanian secured a substantial verdict. On appeal, he now wins on the Statute of Frauds issue, not on the arguments he made, but because the oral contract is differently interpreted: Avis could rightfully have dismissed Ohanian without any breach of contract by Ohanian but for unspecified “conduct that would not constitute breach of contract,” or without any “conduct” or fault by Ohanian if “adverse market conditions ... force Avis to make a change in its business strategy_” (Op. p. 6717).
Avis, on the other hand, is placed by the majority decision in the position of a player in a sporting contest where the rules of the game are changed after the game is over.
A meaning of the oral contract in suit having been determined by the majority to be different from that heretofore acted upon, it is “inconsistent with substantial justice” (Fed.R.Civ.P. 61) to affirm a judgment based upon the rejected meaning. Fairness seems to require that at least the action be remanded for a new trial, with directions to instruct the jury consistent with the-majority opinion of this Court.