APPEAL by the defendant, Elbert Hubbard, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of January, 1912, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling the defendant's demurrer to the complaint.
James McCormick Mitchell, for the appellant.
Ford White, for the respondent.
The complaint to which the demurrer is interposed alleges in substance, that pursuant to an oral contract made between the parties to the action, the plaintiff conveyed to a corporation, at defendant's request, her interest in certain property in exchange for certain shares of the stock of the corporation upon the agreement by the defendant that he would pay her twelve per centum annually upon the par value of the stock. She received the stock, but has not been paid the annual twelve per cent The action is brought to recover the same, and the question is whether the Statute of Frauds applies.
I am of the opinion that if this oral contract was not to be performed within one year from the making thereof, as the complaint indicates, it falls within the condemnation of the statute which requires such an agreement, promise or under taking or some note or memorandum thereof to be in writing and subscribed by the party to be charged therewith or by his lawful agent. (Pers. Prop. Law [[Gen. Laws, chap. 47; Laws of 1897, chap. 417], § 21; now Pers. Prop. Law [[Consol, Laws, chap. 41; Laws of 1909, chap. 45], § 31.)
Wood v. Shultis, 4 Hun,
Day v. N.Y. C. R.
R. Co., 51 N.Y. 583; 22 Hun, 412; 89 N.Y. 616; Reed v. McConnell, 133 id. 425.)
The action is founded upon an express contract, and seems to fall within the rule applied in the case of Reed v. McConnell (supra) where it appeared that the contract was void and a recovery was not permitted upon the theory of an implied contract.
The complaint is silent as to the value of the property conveyed by the plaintiff or the value of the stock, except the par value of the stock is given; and it is difficult to say from the complaint how long the annual payments were to continue, whether for one year, for the life of the plaintiff, or as long as she held the stock, as no time is stated.
It seems to me that the complaint is vitally defective and that the demurrer must be sustained. If I am right, it follows that the interlocutory judgment overruling the demurrer should be reversed and the demurrer ...