
    TEREN v. SAN-NAP-PAK MFG. CO., Inc., et al.
    District Court, S. D. New York.
    March 31, 1943.
    Ring and Murray, of New York City, for plaintiff.
    Baar, Bennett & Fullen, of New York City (John J. Bennett and David E. Winer, both of New York City, of counsel), for defendants.
   HULBERT, District Judge.

Motion for judgment on the pleadings.

The complaint alleges:

.That in or about the month of December, •1940, the plaintiff and the defendant corporation, represented by the defendant Harry Preston, entered into an oral agreement whereby the plaintiff agreed to render certain technical services to the defendant corporation in connection with the production of the defendant corporation’s products and the defendant corporation agreed to pay the plaintiff $100 per week retainer and certain expenses and in addition thereto, $2 per ton on every ton of the said products produced.

That in or about the month of February, 1942, the defendant corporation, acting by the said defendant Harry Preston, reaffirmed the said agreement and modified it by increasing the weekly retainer to $150 per week.

That on or about the first day of September, 1942, the defendant corporation decided to discontinue the said contract arrangement and so advised the plaintiff.

That, upon information and belief, the defendant corporation has, between June, 1941, and September, 1942, produced between 6,000 and 10,000 tons of the said product.

The defendant corporation has paid the plaintiff his retainer and expenses and the plaintiff sues to recover the $2 per ton on the said production.

The defendant, in addition to pleading a general denial, alleges, for a first separate and distinct defense, that the agreement sued on is unenforceable under the Statute of Frauds.

The oral agreement originally made was not performed within one year and the reaffirmance and modification as pleaded could not take it out of the statute.

It may be the plaintiff has a cause of action based on the modified agreement.

The motion is granted with leave to amend within ten days if the plaintiff be so advised. Settle order on notice.  