App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. CORNELIA SEYMOUR, Appellant, v. WALTER H. WARREN and J. HARPER SKILLIN, Respondents. Contract void under the Statute of Frauds — remedy where it has been partially performed omissions in a writing cannot be supplied by oral proof. A party to a contract, void under the Statute of Frauds, cannot, although the contract has been partially performed, maintain an action at law to recover damages for a breach of such contract, but his remedy, if any, is by an action for moneys had and received or other similar action. Where a written memorandum of a contract, within the Statute of Frauds, does not express all the matters which the Statute of Frauds requires such a memorandum to state, oral evidence is not admissible to supply the deficiency. APPEAL by the plaintiff, Cornelia Seymour, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 17th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from an order entered in said clerk's office on the 27th day of January, 1903, denying the plaintiff's motion for a new trial made upon the minutes. Edmund L. Mooney [Frederick A. Card with him on the brief], for the appellant. James J. Allen, for the respondents. JENKS, J.: On the first trial the plaintiff's verdict was set aside and a new trial was granted. We affirmed that order. (59 App. Div. 120.) The plaintiff then amended her complaint so as to state two separate and complete causes of action. The sole relief demanded is for damages for breach of contract. We held in the 59th Appellate Division Reports (supra) that "as the agreement is unquestionably one which, by its terms, is not to be performed within one year from the making thereof, it was void unless in writing." I do not perceive how the amendment has cured this defect. For it matters not whether the plaintiff plead upon a writing which is insufficient, or plead an oral agreement when it must be in writing. SECOND DEPARTMENT, JULY TERM, 1903. [Vol. 86. The learned counsel for the appellant stated upon the argument: "We made out a contract which was void by the Statute of Frauds, but having been performed to a certain extent, we are entitled to the fruits of performance as far as the performance went, and the damages on the repudiation of the agreement for the then current year." Suffice it to say that even if it be so, the plaintiff cannot enforce any such right in an action at law to recover damages for a breach of such agreement, as was said by HIRSCHBERG, J., in the opinion upon the first appeal (supra), when a similar contention was made. It is further contended that as oral evidence was admitted to clear an "ambiguity" in the writing, therefore there is presented a sufficient written memorandum. The objection found to the writing, as indicated in our previous opinion, was not that it was ambiguous, but that it was "fatally defective," in that it failed to express the consideration pleaded or any consideration; and, second, that it did not contain any agreement on the part of the defendants to pay taxes, etc., but otherwise expressly confined their liability. There was an obvious difference between an ambiguity and an omission. There is no force in the contention that the relation of the parties was landlord and tenant, and that although the agreement was void, being a lease for longer than a year and not in writing, yet it was effective so as both to create a tenancy from year to year and to regulate the terms of the possession of the defendants. The defendants were not lessees for they had neither possession nor right of possession. (1 McAdam Landl. & Ten. [3d ed.] 127.) Both the pleading and the proof clearly indicate that the defendants were put in charge of the premises by the plaintiff for the purpose of managing them, and to collect the rents from the tenants. It is further contended that, in any view of the contract, the plaintiff is entitled to recover the February rents and the sum given to the defendants to be applied to the taxes. But if the contract was valid, and the judgment erroneous, the defendants were entitled to the rents and the payment of the taxes as consideration of the contract, and the plaintiff is relegated to her damages. If the contract was invalid, she cannot sue as upon a breach thereof, though she might have her action for moneys had and received. (See Day App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. v. N. Y. C. R. R. Co., 51 N. Y. 583, 590; Reed v. McConnell, 133 id. 425, 435.) The judgment must be affirmed, with costs. BARTLETT, WOODWARD, HIRSCHBERG and HOOKER, JJ., concurred. Judgment and order affirmed, with costs. WILLIAM E. THORN, as Sole Surviving Executor and Trustee of and under the Last Will and Testament of WILLIAM T. GARNER, Deceased, Appellant and Respondent, v. MARCELLITE THORN (GARNER) DE BRETEUIL and Others, Respondents and Appellants. Will direction to the executors to carry on the testator's business with his property and estate for a period of lives, with a provision that, until the testator's children each attained the age of twenty-five years, a portion of the "profits and gains" of the business should be applied to their maintenance and support and that the surplus should be used as part of the working capital of the business the direction relates only to that part of the estate used in the business at the time of the testator's death the testator's children cannot prevent the business from being continued the will is invalid so far as it directs an accumulation after the children attain their majority — action by the testator's children to procure an adjudication that the will is invalid in this respect after the executors have acted on the assumption that it was valid when such action is not barred by the Statute of Limitations or by judgments rendered upon accountings by the executors · the testator's children held to be severally chargeable with advancements made to them, but not with moneys expended for their education, maintenance and support the executors are not in the position they would be were they stockholders of a corporation having the fund. A testator, by his will, provided as follows: "Second. I direct that my executors hereinafter named, or such of those named as shall qualify as such, their survivors or successors, shall prosecute and carry on with my estate and property, my present business under the firm name of Garner & Co., for and during the lifetime of my wife, Mary Marcellite, and my daughter Florence, and the survivors of them, and that all profits and gains arising from said business shall, after the sum set apart for the support of my wife and children, as hereinafter provided, are deducted, be added to and form a part of the working capital of my estate." He further directed his executors to pay to his widow out of the income of his cstate during her lifetime the sum of $70,000 a year, and out of the surplus income of his estate, to support, educate and maintain his children, until they severally attain the age of twenty-five years. Up to such age such 66 SECOND DEPARTMENT, JULY TERM, 1903. [Vol. 86. executors may advance any child or children such moderate sum or sums of money as, in their best judgment, will benefit or promote the happiness or comfort of such child or children, such advances to be charged against them. As each child attains the age of twenty-five years, said executors shall pay over to such child or children the full proportionate sum per annum, to which she or he may be entitled, from out of the profits of said business, after my wife's amount is paid her." The testator and his wife died in 1876, leaving them surviving three children, who were born respectively in 1868, 1869 and 1874. The executors continued the testator's business as directed by the will, and each year, until all of the children attained the age of twenty-five years, added a large surplus of profits to the capital of the business. The youngest child attained her majority in 1895. In 1899 the surviving executor brought an action for a settlement of his accounts and for leave to resign. The children of the testator served answers in 1899 and 1900, asking for a construction of the will and that they each be declared entitled to one-third of the surplus income accruing from the time that they became twenty-one years of age, and which had been added to the capital of the estate. Held, that the direction that "all profits and gains arising from said business shall, after the sum set apart for the support of my wife and children, as hereinafter provided, are deducted, be added to and form a part of the working capital of my estate," was equivalent to a direction for the accumulation of the rents and profits and of the interest, income and profits of the real and personal estate of the testator; That, so far as the will directed an accumulation of the profits and gains arising from said business, after any child became of age, the will was invalid; That the retention of the excess of profits and gains contemplated by the will was based, not upon a scheme for the maintenance and development of the business, but for the purpose of making provision for the testator's children; That the fact that the money to be accumulated was the product of a continuance of the business was not material; That the continuance of the business was not optional with the beneficiaries, and that consequently the accumulation of the income provided for could not be said to have been made with their consent; That adjudications by the court upon previous accountings made by the executors, to the effect that the general power to carry on the business existed in the executors, and that one of the testator's daughters having reached the age of twenty-five years was entitled to one-third of the profits and gains, did not preclude the court, in the present action, from passing upon the question as to the validity, after a child attained majority, of the provision directing the accumulation of the profits and gains, it appearing that such question was not raised in the former actions and that certain of the infant defendants in the present action were not parties to the former actions; That, whether the executors should be regarded as trustees of an express trust or as executors charged with trust duties, the right of the testator's children to the relief sought in the present action was not barred by the Statute of Limitations; App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. That the direction of the testator that the executors continue the business created a trust, and that the fund resulting therefrom was a trust fund; That the executors could not be said, because they had made a mistaken interpretion of the law, to have repudiated or violated the trust; That the testator presumably only authorized a continuance of the business by the use therein of that part of his estate so employed at the time of his death; That, consequently, the children were entitled to the proceeds of the sale of real estate, the use of which the testator had given to his widow during her life; That the respective shares of the several children should not be severally charged with the money devoted to the support, education and maintenance of each, but the total sum so expended was chargeable against the profits of the business; That each child should be charged with the specific moneys advanced to such child; That the executors were not in the same position that they would have been as holders of stock in a corporation to which the testator had transferred the fund which was in fact given in trust to them. CROSS-APPEALS by the plaintiff, William E. Thorn, as sole surviving executor and trustee of and under the last will and testament of William T. Garner, deceased, and by the defendants, Marcellite Thorn (Garner) de Breteuil and others, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 23d day of July, 1902, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Dutchess on the 23d day of July, 1902, whereby said judgment was adopted and made the judgment of the Supreme Court, and to bring up for review portions of the orders for judgment made by said referee and entered in said clerk's office respectively on the 27th day of May, 1902, and the 23d day of July, 1902. Nathaniel S. Smith, for the plaintiff. F. R. Coudert, Jr., and Daniel J. Holden, for the defendants de Breteuil. James Byrne [Lorenzo Semple, Augustine L. Humes and H. F. Wolff, with him on the brief], for the defendants DeMoltkeHuitfeldt and Gordon-Cumming. Peter B. Olney, guardian ad litem, for the infant defendants. |