63 N.Y.S. 91 | N.Y. App. Div. | 1900
The plaintiff is a legatee under the will of the defen dant’a testatrix. In the first cause of action set out in the complaint she seeks a judicial construction of that portion of the will whereby the testatrix bequeathed to the plaintiff all her “ household furniture and store with contents of house, known as 29 Hamilton avenue, Borough of Brooklyn, County of Kings and State of Hew York.”
The learned judge at Special Term held that “inasmuch as the Surrogate of the County of Kings has complete power and jurisdiction to administer such relief in the premises as the plaintiff may be entitled to, if any, by reason of the matters and things set forth in the first alleged cause of action, this court in the exercise of its discretion should decline to entertain said action in this respect.”
The substance of the second cause of action may be stated as fol-
It was admitted upon the trial that the agreement above set forth was oral, and the learned judge at Special Term held that it was void under the Statute of Frauds. He, therefore, directed a dismissal of the complaint on the ground that it did not state facts sufficient to constitute a cause of a action.
So far as the first alleged cause of action is concerned, we.do not think the dismissal can be sustained. While it has many times been held that the Supreme Court may properly decline to take cognizance of a matter over which the Surrogate’s Court has concurrent
The complaint was properly dismissed as to the second alleged cause of action. The gist of that cause of action is the breach of an oral contract for the conveyance or devise of real property. Such an agreement is void under the Statute of Frauds, unless there has been such performance on the part of the plaintiff as to take it out of the operation of that statute. Where the oral agreement is to convey the land upon the payment of a specified sum of money, such payment alone is not deemed a sufficient part performance, inasmuch as a recovery of the consideration in an action at law would fully indemnify the party by whom the purchase price was paid. (Miller v. Ball, 64 N. Y. 286.) Where, however, the entire consideration has been paid and the purchaser has taken possession by consent of the vendor, has made improvements upon the land, paid the taxes and incurred expenditures which cannot easily be made good to him in an action at law, he will be entitled to enforce the contract in equity. (Winchell v. Winchell, 100 N. Y. 159, 163.) So, where the consideration for the promised conveyance consists of services to be rendered, and the services are rendered but the land is not conveyed, equity will not compel a conveyance unless the character of the services is so peculiar that it is impossible to estimate
Our conclusion is that the case was rightly disposed of so far as the second cause of action was concerned, but that the court should have entertained jurisdiction of the first cause of action. Under these circumstances the proper course seems to be to reverse the judgment as rendered. (Board of Underwriters v. National Bank, 146 N. Y. 64, 67.) It may be assumed that upon the new trial the court at Special Term will make the same disposition of the second cause of action as was made upon the trial already had, and the only matter upon which further adjudication - is required will be the construction of that clause of the will which is set out in the first cause of action.
All concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.