
    George D. Miller and Another, Respondents, v. Associated Gas and Electric Company, Appellant.
    Fourth Department,
    January 16, 1935.
    
      Fred Jeffers, for the appellant.
    
      Paul R. Taylor [Lamont Me Nall, Truesdale Clarke and J. Webb L. Sheehy of counse], for the respondents.
   Per Curiam.

The complaint alleges a provision for repurchase as a part of a contract of sale of securities and the action is brought under such provision for repurchase. This clause is inherently one for rescission; it is not void under the Statute of Frauds (Pers. Prop. Law, § 85). (Johnston v. Trask, 116 N. Y. 136; Fitzpatrick v. Woodruff, 96 id. 561; Wooster v. Sage, 67 id. 67.) The Statute of Frauds is, therefore, not a defense to the cause of action pleaded. Further there is no controversy between the parties as to the provision for repurchase being an integral part of the original contract of purchase. This is alleged affirmatively both in the complaint and in the answer. As the plaintiffs have on motion obtained an order striking out the defense afforded by the Statute of Frauds, they cannot consistently change their position and seek a recovery on an independent or subordinate contract of repurchase for then the very defense which they have succeeded in eliminating would be pertinent and conclusive against them. If upon the trial the plaintiff should attempt to produce proof (in conflict with the allegations of the complaint) of an independent or subordinate contract for repurchase, such proof could not be received without an amendment of the complaint which would necessitate the allowance of an amendment of the answer so as to set up anew its defense of the Statute of Frauds.

All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Lewis, JJ.

Order so far as appealed from affirmed, with ten dollars costs and disbursements.  