Order, entered on April 17, 1963, denying summary judgment unanimously reversed, on the law and the facts, with $20 costs and disbursements to the appellant, and the motion for summary judgment granted, with $10 costs. Plaintiff sues on an oral hiring for the calendar year 1961 at a stated salary plus a commission of 2% of any increase in sales of defendant's fashion department over the sales made in 1960. The alleged contract was entered into on December 6, 1960. It was clearly not capable of performance within one year ( Briefstein v. Rotondo Constr. Co., 8 A.D.2d 349; cf. Dukes of Dixieland v. Audio Fidelity, 19 A.D.2d 872). The attempt to bring the action within the rule of Raes v. So-Lite Furniture Corp. ( 4 A.D.2d 851) on the theory that this was a hiring at will and the terms fixing the commission were merely descriptive of the method of computation, does not accord with plaintiff's own version of the conversation constituting the agreement. Appeal from order entered on May 17, 1963, dismissed, without costs.
Concur — Breitel, J.P., McNally, Stevens, Eager and Steuer, JJ.