COLUMBIA BROAD. SYS., INC. v. Roskin Distribs., Inc.

28 N.Y.2d 559 (1971)

Columbia Broadcasting System, Inc., Respondent, v. Roskin Distributors, Inc., Appellant.

Court of Appeals of the State of New York.

Submitted January 4, 1971.

Decided January 21, 1971.

Arthur Elfenhein, Samuel Mezansky and Leon Brown for appellant.

Gilbert S. Edelson and Edward Sharf for respondent.

Concur: Chief Judge FULD and Judges SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON. Taking no part: Judge BURKE.

Order affirmed, with costs, in the following memorandum: The Appellate Division was correct in dismissing the fourth affirmative defense and first counterclaim on the ground that the agreement relied upon did not satisfy the Statute of Frauds (General Obligations Law, § 15-301, subd. 1). That part of the Appellate Division order which dismissed the second, third and sixth affirmative defenses is not final within the meaning of the Constitution and, therefore, not reviewable by this court. (See, e.g., Tjepkema v. Kenney, 24 N Y 2d 942; Markowitz v. Fein, 23 N Y 2d 800; see, also, Cohen and Karger, Powers of the New York Court of Appeals, p. 161.)