181 A.D. 681 | N.Y. App. Div. | 1918
This is an appeal from a judgment of foreclosure and sale. The sole defense relied upon by the appellants, the present owners of the mortgaged property, is that the debt secured is not yet due because, as is alleged, the time for payment has been extended by agreement, and the principal
Joseph Lichtenstein died on March 2, 1912, intestate, and leaving him surviving his widow and seven children, all of whom are appellants here. The defense to which allusion has been made is based upon a conversation, on or about February 6, 1914, between one of the officers of plaintiff and the defendant Isidore Lichtenstein, one of the heirs at law of the deceased mortgagor, and who appears to have acted in behalf of himself, his coheirs and his mother. None of these were personally liable for the debt.
The agreement between the plaintiff and Isidore Lichtenstein was pleaded in the original answer as follows: “ Thereafter such negotiations were had between the plaintiff, its officers and agents and the said defendant Isidore Lichtenstein that resulted into the making of an agreement between the plaintiff and the said Isidore Lichtenstein, acting on his own behalf and on behalf of the said defendants, Dora Lichtenstein, Perry M. Lichtenstein, Edna Blumberg and Lillian Green, whereby it was agreed between them that in consideration of the said defendants assuming the payment of the said sum of $4,000 to be paid to the plaintiff in- installments of $50Q semi-annually at the time of the payment of the interest on the said mortgage, the plaintiff would upon such payment extend the time of payment of the balance on said mortgage the sum of $41,000 to February 16, 1921.” To this defense, which was also pleaded as a counterclaim for the specific performance of the agreement to extend the time of payment, the plaintiff pleaded the Statute of Frauds in that the agreement alleged was not in writing and was not to be performed within a year. To this reply the defendants demurred, and upon the hearing of the demurrer it was overruled (98 Misc. Rep. 342), and the order overruling it was affirmed here (176 App. Div., 910).
The appellants thereupon amended by alleging that the agreement of February 6, 1914, was an executed and completed agreement whereby plaintiff agreed that it would then presently reduce the principal of the mortgage debt and
It. is not contended by .the respondent that the time for the payment of a debt, even when evidenced by a bond under seal, may not be extended by parol. The contention is that the alleged agreement to extend was not valid, because it was not only oral, but by its terms, as testified to, was not to be performed within a year. That this was the character of the agreement was made clear by the testimony of the witness Lichtenstein, who was the person, and the only person, who represented the appellants in the transaction. His testimony on that subject was as follows: “ I told Mr. Burdess that I came and wanted to know what the board of directors of the company had decided to do about the mortgage. He told me that if I would pay him the $500' every six months, they would allow me to reduce the mortgage to $41,000 by paying the $500 every six months on the interest date, and then after the $4,000 was paid, he would give me a written extension of the mortgage for three years. * * * Q. What else took place after that? A. Then I asked him whether he would not give me this agreement in writing. He said you will have to take our word for that. You make your payments regularly on the $500, and after you pay off
Clearly this agreement to extend, which is the agreement upon which appellants rely, was not to be performed within a year — it was to be performed after four years, that is, when $4,000 had been paid in eight semi-annual installments. It differed radically from the agreement pleaded in the amended answer.
It is objected that plaintiff may not avail itself of the Statute of Frauds because it did not plead the statute. It is undoubtedly true that where the invalidity of á contract under the Statute of Frauds is apparent upon the face of the pleading, or is such, as pleaded, that the proof may show it to be obnoxious to the statute, the objection that it contravenes the statute, to be availed of, must be taken by answer, reply or demurrer. (Crane v. Powell, 139 N. Y. 379; Honsinger v. Mulford, 90 Hun, 589; affd., 157 N. Y. 674.) But in the present case the extension agreement as pleaded in the amended answer did not contravene the statute, and if the proof had followed the pleading, it would have disclosed a contract valid so far as the Statute of Frauds was concerned. But the proof did not follow the pleading, but, on the contrary, disclosed that the agreement relied upon was obnoxious to the statute. Under such circumstances the void contract will not be enforced, notwithstanding the failure
It is further objected that the court directed judgment for the plaintiff without waiting for defendants to close their case. On its face this appears to be a formidable objection, but is not such in reality. The sole- defense upon which appellants relied was the alleged extension agreement. As to that the defendant Isidore Lichtenstein, the only one of the appellants who had personal knowledge, testified fully and repeatedly that he had nothing to add to, or alter in his evidence. That evidence showed that the agreement was unenforcible. It is not suggested and indeed is not possible that appellants had any witnesses to prove a different agreement, and to have permitted witnesses to be called to prove the same agreement that the principal witness had already testified to would simply have amounted to receiving cumulative evidence.
Finally, it is contended that although the extension agreement as proven may have been invalid under the Statute of Frauds because not to be fulfilled within a year, it became validated by pa,rt performance on the part of appellants, such part performance consisting of the payment by appellants of the interest on the mortgage as it. accrued, and four installments of $500 each on account of the principal. These payments were made between February 13, 1914, and March 31, 1916.
It is well settled that part performance by one party to a contract not to be performed within a year, as by paying part of the consideration, will not relieve the contract from the ban of the Statute of Frauds. The exception made by statute where the contract is for the purchase of personal property exceeding fifty dollars in value (Pers. Prop. Law, § 31)
It appears from the judgment that the amount paid by the appellants has been credited upon the amount found to be due upon the mortgage, thus relieving their property to that extent. It may be that if they had counterclaimed for it they could have compelled a repayment to them of this sum (See Cooley v. Lobdell, supra) and thus have been restored to the same position they were in when the alleged agreement was made. But no such claim is embraced in the amended answer, and it is, therefore, needless to pursue that subject.
The judgment appealed from is affirmed, with costs.
Laughlin, Dowling, Smith and Davis, JJ., concurred.
Judgment affirmed, with costs.
See, also, Pers. Prop. Law (Consol. Laws, chap. 41; Laws of 1909. chap. 45), § 85, as added by Laws of 1911, chap. 571.— [Rep.