
    Maurice Goldman, Appellant, v. Samuel Ackerman and David Davidson, Individually and as Copartners, Doing Business under the Firm Name and Style of Ackerman & Davidson, Respondents.
   Judgment reversed upon the law and the facts and a new trial granted, costs to abide the event. The statute (Pers. Prop. Law, § 31) requires a writing only, if such agreement “ by its terms is not to be performed within one year from the making thereof.” The contract of employment sued upon is claimed to have been made on Saturday afternoon, November 14, 1925, for the period of one year. It is not the plaintiff’s proofs that the year was to begin on the following Monday when he commenced work. The contract was capable of performance within one year from the time it was made (Crown v. Litvak, 159 N. Y. Supp. 34, and not officially reported; Prokop v. Bedford Waist & Dress Co., Inc., 187 App. Div. 662); and if there be any ambiguity in the testimony upon this point, “ it was for the jury to determine when the contract of employment began and when it terminated.” (Sheingold v. Baer, 145 App. Div. 493, 494.) Whether the plaintiff ought to be believed in his assertions of the over-assurances of the defendants as to the nature of his contract must be left to the jury. Lazansky, P. J., Young, Kapper, Seeger and Carswell, JJ., concur.  