gave it to the defendant and the value of the coat as returned to the plaintiff. Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur. BUFF-MERZ v. RATKOWSKY. (Supreme Court, Appellate Term, First Department. May 25, 1920.) Frauds, statute of 158(3) -Term of contract omitted from writing cannot be supplied by parol. Where contract is required to be in writing, an infirmity of the writing, not being ambiguity, but incompleteness in not fixing period of employment, cannot be supplied by parol. Wagner, J., dissenting. Appeal from City Court of New York, Trial Term. Action by Ernest Buff-Merz against Gustave Ratkowsky, otherwise known as Gustave Ruth and Gustave Roth. From a judgment on a verdict for defendant, plaintiff appeals. Reversed and ordered dismissed. Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ. Joseph A. Arnold, of New York City (Samuel I. Rosenman, of New York City, of counsel), for appellant. Nathan Frankel, of New York City (Gustavus A. Rogers and Harry Rotkowitz, both of New York City, of counsel), for respondent. PER CURIAM. We think it is plain that the writing under which defendant claims, and has had a recovery upon his counterclaim, is wholly lacking in respect of the fixation of the period of employment. The parol evidence was therefore improperly received. There was no ambiguity to explain. The infirmity was of incompleteness, and not of lack of clarity. The opinion in Brauer v. Oceanic Steam Navigation Co., 178 N. Y. 339, 70 Ν. Ε. 863, seems to cover all the essential points that are dealt with in the opposing briefs. The plaintiff did all he was required to do to avail of the statute of frauds. The counterclaim should therefore have been dismissed. The defendant's liability under the plaintiff's first cause of action is conceded, and there would have been a direction in his favor had there been no counterclaim. The plaintiff's second cause of action has been withdrawn. It would serve no purpose to send the case back for a new trial. Judgment reversed, with costs, and judgment ordered (1) dismissing the counterclaim, and (2) for the plaintiff for $200 and interest from January 2, 1918, with costs in the court below. WAGNER, J., dissents. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) EICHENBAUM v. FRANK MELVILLE, Inc. (Supreme Court, Appellate Term, First Department. May 13, 1920.) 1. Courts 189 (15) -Default in Municipal Court opened where defendant's counsel was engaged in trial of another case. Though no affidavit that defendant's attorney was engaged in trial of a cause in another district of the Municipal Court was presented on motion to adjourn, when such excuse did appear in proper form upon motion to open the default, the motion should have been granted, but proper terms should have been imposed. 2. Courts 189 (15) -Where verified answer on file, affidavit of merits not necessary on motion to open default in Municipal Court. Where a verified answer containing a general denial and setting up separate defenses and counterclaims was on file, there was no necessity for further affidavit of merits on motion to vacate default judgment entered on inquest. Appeal from Municipal Court, Borough of Manhattan, First District. Action in Municipal Court by Joseph G. Eichenbaum against Frank Melville, Incorporated. From a judgment rendered on an inquest, and from an order denying defendant's motion to open the default and vacate the judgment, defendant appeals. Order reversed, judgment vacated, motion to open default granted, and new trial ordered. Appeal from judgment dismissed. Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ. FINCH, J. [1, 2] As appears by the affidavits to open the default, the defendant's attorney was actually engaged in the trial of a cause in another district of the Municipal Court. While no affidavit containing such excuse was presented upon the application to adjourn, as is required, yet when such excuse did appear in proper form upon the motion to open the default, the motion should have been granted upon proper terms, since the excuse was not presented originally by affidavit. The verified answer, containing a general denial of the allegations of the complaint and setting up two separate defenses and counterclaims, obviated the necessity for a further affidavit of merits. See, also, Imperial A. & T. Co. v. Dickens, 161 N. Y. Supp. 352. It follows that the order appealed from should be reversed, and the judgment vacated, and the motion to open the default granted, upon payment of $10 costs and plaintiff's disbursements up to time of trial, and a new trial ordered, without costs of appeal to either party. Appeal from judgment dismissed, without costs. All concur. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 1 HOFFBAUER v. MAJESTIC DOLL CO., Inc. (Supreme Court, Appellate Term, First Department. May 13, 1920.) Courts 189 (15) -Judgment in Municipal Court for plaintiff held unsup ported, there being no trial of the facts. It appearing merely that the case was submitted to the Municipal Court on the question of res judicata, with understanding that, if decision thereon be adverse to defendant, there should be a trial of the issues of fact, there is nothing on which to base a judgment for plaintiff for goods or money, in accordance with direction of the judge. Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Carl Hoffbauer against the Majestic Doll Company, Incorporated. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ. FINCH, J. The judgment appealed from by the defendant is a money judgment rendered in favor of the plaintiff in the sum of $82.50 damages, and costs and disbursements amounting to the sum of $15.20. The direction of the trial justice, upon which the clerk is required to enter the judgment, states: "That the plaintiff is entitled to recover judgment awarding him the possession of the goods, or in case of failure to obtain the goods a money judgment against the defendant for the sum of $82.50 after trial." There is neither oral nor written complaint in the record, nor are there any minutes of the trial, or any agreed statement of facts, or anything whatever to show what "goods" were referred to in the decision, or upon what the judgment was based. So far as can be gleaned from the record, the parties appeared before the justice on November 26, 1919, for trial. The defendant claimed that a former action had been brought for the conversion of the goods claimed in this action, which had resulted in a judgment rendered in favor of the defendant on the merits, and that, the present action having been brought in replevin for the same goods, the first action was res adjudi cata. Some discussion then arose between the attorneys for the respective parties and the court. The position taken by plaintiff's counsel is stated by him as follows: "We tried an action in this court for conversion of 111 dozen dolls, and judg ment was rendered for the defendant, and this action now is one in replevin. There is as much difference as day and night." Thereupon the defendant's attorney expressed his willingness to rely upon the foregoing statement as made, and to submit a memorandum on the "point that it is res adjudicata." Whereupon the court said: For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) "All right; give me a memorandum by December 5th, at the Second District Court. This case is adjourned to December 5th, Second District Court, and the court's time is extended 14 days from December 5th. The case to be decided upon an agreed statement of facts, but in the event of my deciding adversely to counsel for the defendant on his proposition of law that it is res adjudicata, will send it back here for trial, or else, if I get a chance, I will try it in the Second District Court and send it back here." Plaintiff's counsel then said: "If your honor decides, after this memorandum is before you, that my adversary is correct, that is the end of the case, and, if not correct, then we will have a trial." The court answered, "Yes." Nothing further appears to have been done in the case until December 9th, when the aforesaid judgment was entered. The only question submitted to the trial justice was upon an agreed question of law, and there was to be a trial of the issues of fact, if the decision of the justices was adverse to the defendant. There is nothing in the record upon which a judgment for the plaintiff can be based, and there must be a reversal. Judgment reversed; new trial ordered, with $30 costs to appellant to abide the event. All concur. (191 App. Div. 835) WICKWIRE v. WARNER. (Supreme Court, Appellate Division, Fourth Department. May 12, 1920.) 1. Injunction41-Equity may protect maker of promissory note from risk of its passing into hands of bona fide purchaser. Equity has jurisdiction to protect the maker of a promissory note before its maturity from the risk of its passing into the hands of a bona fide purchaser, where it has been diverted by the payee from the purpose for which it was given and converted by him to his own use. 2. Injunction 16-Remedy at law must be adequate to deprive party of relief. The remedy at law must be adequate, in order to deprive a party of relief by injunction. 3. Injunction 41-Remedy at law held inadequate. Where note given for stock was diverted by majority stockholder and converted, the maker of the note was justified in seeking relief in equity to prevent the note passing into the hands of a bona fide purchaser; the remedy at law not being adequate. 4. Injunction118(3) -Conversion of note and diversion to improper use sufficiently alleged. The conversion of a note given on a subscription for corporate stock to the majority stockholder of a corporation and a diversion to an improper use held sufficiently alleged in a complaint in an action by the maker of the note to restrain the improper use by the defendant of the note and the corporate stock and to cancel the note. Appeal from Equity Term, Erie County. Action by Theodore H. Wickwire, Jr., against George C. Warner. From a judgment (174 N. Y. Supp. 811) in favor of plaintiff, entered upon the decision of the court after a trial at Equity Term, defendant appeals. Affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ. John W. Ryan and Moot, Sprague, Brownell & Marcy, all of Buffalo, for appellant. Joseph G. Dudley and Dudley, Stowe & Sawyer, all of Buffalo, for respondent. DE ANGELIS, J. This is an action in equity, brought to restrain the use by the defendant of the plaintiff's subscription for 200 shares, of $100 each, of a proposed increase of the preferred capital stock of the Fulton Steel Corporation, a domestic corporation, whose principal office and place of business were in the city of Fulton, in the county of Oswego and state of New York, and the use by the defendant of the plaintiff's negotiable promissory note, not then due, and to cancel and annul the subscription and note, which subscription the defendant individually obtained from the plaintiff, and which note was made payable to the order of the defendant and was given to him for a loan which the defendant was to make to the plaintiff to pay in part for the stock when the same was issued, upon the ground, among others, that the stock was never issued or tendered to the plaintiff, the plaintiff never received any consideration for the note, and the defendant had diverted the note from the purpose for which it was given, and appropriated it to his own use. The defendant interposed the defense that the transaction between the parties was the purchase by the plaintiff of stock in the corporation, which stock was then owned and held by the defendant; that the note was delivered to the defendant and accepted by him as part payment for the stock, the stock to be retained by the defendant as collateral security for the payment of the note; and he denies that he diverted the note from the purpose for which it was given. There is no allegation in the complaint or in the answer that the note had passed out of the defendant's possession, but in the answer, in the form of an admission, not responsive to any allegation of the complaint, is the statement "that the holder thereof [the note] claims to be a bona fide purchaser and holder thereof." For aught that appears in the pleading, this alleged "bona fide purchaser and holder" is the defendant. Upon a motion made by the counsel for the defendant, in connection with the opening of the plaintiff's case, for a dismissal of the complaint, the defendant, with the permission of the court and the assent of the counsel for the plaintiff, amended his answer by setting up that the plaintiff had an adequate remedy at law. The principal question which we are called upon to determine is whether or not the plaintiff had an adequate remedy at law. The learned Equity Term has found, upon sufficient evidence, in favor of the plaintiff, to the effect that on and prior to the 22d day of November, 1917, Fulton Steel Corporation was a domestic corporation, having been incorporated in September, 1917, for the purpose of manufacturing high speed steel, with its principal office and place of business in the city of Fulton, in the county of Oswego and |