LUCY-TURNER v. BUILDERS BONDS LIMITED

The oral agreement to form a corporation and divide its stock and the earned commissions equally was sufficiently memorialized by correspondence between the parties, as well as by part performance (opening of a joint bank account, use of the corporate letterhead on stationery, etc.) which was clearly referable to the agreement (Marcraft Recreation Corp. v. Devlin Co., 506 F. Supp. 1081). The test for application of the Statute of Frauds is not the mere uncertainty of performance within one year, but the actual incapability of performance within that period (Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260, 265). There clearly existed the possibility of performance within that period (Silberstein v. Production Fashions, 137 A.D.2d 805). Murphy, P.J., Carro, Milonas, Kassal and Wallach, JJ.