261 A.D. 447 | N.Y. App. Div. | 1941
This is an action against the executors of the estate of James J. Fox, deceased, for specific performance of an oral contract alleged to have been made by and between plaintiff and Mr. Fox, whereby plaintiff agreed to serve as housekeeper for the testator during his lifetime, in consideration of his agreement to leave her all of his property by will. It is alleged that plaintiff performed on her part. The defendants-appellants, who were joined as parties by order, are apparently beneficiaries under the will of decedent, the terms of which will do not conform to the alleged agreement.
The dismissal is sought pursuant to subdivision 8 of rule 107 of the Rules of Civil Practice, on the ground that this action is barred by the Real Property Law (§ 259) in that the subject-matter of the contract consists of both real and personal property. Respondent urges performance. (See Real Prop. Law, § 270.)
Any possible distinction between Burns v. McCormick (supra) and the present case on the ground that there the agreement was to leave a specific parcel of realty with furniture and equipment, whereas in the present case the agreement was to leave all of decedent’s property, which might not necessarily involve realty, is rendered immaterial in the light of the authority of Kezer v. Seely (236 N. Y. 567). There a judgment in an action for specific performance, wherein plaintiff demanded that defendants execute and deliver to her a conveyance of their rights in real property left by a decedent, was reversed and the complaint dismissed on the authority of the Burns case (supra), the agreement, as here, being that decedent promised to leave to plaintiff all of her property.
The contract is not good even as to personalty where realty is also involved. It will be noted that in the Burns case (supra) the contract embraced both a house and lot and personalty. In Thayer v. Rock (13 Wend. 53) it was held, as appears from the syllabus, that “ A contract, made as well for the sale of real as of personal property, which is entire, founded upon one and the same consideration, and is not reduced to writing, is void, as well in respect to the personal as the real property, the subject of the contract.” To the same effect is the authority of DeBeerski v. Paige (36 N. Y. 537, 539) where it was stated that “ It is well
Accordingly, the order should be reversed on the law, with ten dollars costs and disbursements, and the motion to dismiss the complaint granted, without costs.
Lazansky, P. J., Johnston, Adel and Close, JJ., concur.
Order denying motion to dismiss complaint reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs.