
    Josef Weindl, Inc., Appellant, v. Harry Braverman, Respondent.
    Supreme Court, Appellate Term, Second Department,
    June 24, 1958.
    
      Fred I. Zabriskie for appellant.
    No appearance for respondent.
   Per Curiam.

The plaintiff having served no reply to the counterclaim its motion for summary judgment was properly denied on that ground alone. (Civ. Prac. Act, § 272; United States Trust Co. v. Hardwood Operating Corp., 271 App. Div. 233.) The agreement upon which the counterclaim is based is not illegal merely because it is oral. An oral agreement is only unenforcible at the election of the party sought to be charged if the Statute of Frauds is pleaded as a defense and the agreement found within the ambit of such statute. (Matthews v. Matthews, 154 N. Y. 288; Flanagan v. Flanagan, 209 App. Div. 190.)

The order denying summary judgment should be affirmed, without costs, the respondent having neither appeared nor filed a brief on this appeal.

Concur — ■ Pette, Hart and Brown, JJ.

Order affirmed, etc.  