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WILLIAM BALLAN, Respondent, v. T. PRESTON WATERMAN et al., Appellants. (And Another Action.)

¶ Order affirmed insofar as appealed from, with costs.

¶ A triable issue of fact exists as to whether the undisputed payment of $11,000 by plaintiff to defendant Waterman was a sufficient partial performance unequivocally referable to the alleged oral agreement to remove the agreement from the Statute of Frauds (Uniform Commercial Code, § 8-319, subd [b]; see Burns v. McCormick, 233 N.Y. 230; Gross v. Vogel, 81 A.D.2d 576; cf. Anostario v Vicinanzo, 59 N.Y.2d 662). We would note that in the event plaintiff is successful in his claim of establishing the alleged oral agreement, his recovery, if any, is limited by statute to the extent of payment actually made (Uniform Commercial Code, § 8-319, subd [b]). Lazer, J.P., Brown, Boyers and Eiber, JJ., concur.

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BALLAN v. WATERMAN
(Jul 16, 1984)