
    DEMON C. TUTHILL, Respondent, v. JEFFREY J. ROBERTS, Appellant.
    
      Parol agreement to pay a larger sum, for a deed, of land which purports to comey the land for one dolla/r — valid.
    Appeal from a judgment in favor of the plaintiff for $567.35, entered on the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes of the justice before whom the trial was had.
    The action was brought to recover the amount which it was alleged that the defendant had agreed to pay to the plaintiff for an equal undivided one-seventh part of a farm in Orange county. It was claimed by the plaintiff that the defendant had promised to pay the plaintiff, as a consideration for his conveyance, all that the said one-seventh part would bring on a sale in proceedings for a partition of the said premises. Said premises were sold, on May 30, 1873, at public auction, under and by virtue of a judgment in partition, for $3,350. The costs and disbursements of the action and all expenses of sale were deducted, to the amount of $788.76, and the sum of $2,561.24 was distributed to the owners of the said premises, and the defendant received from the referee, for the one-seventh part conveyed to him by the plaintiff, the sum of $365.89. The deed executed by the plaintiff to the defendant purported to be in consideration of $1.
    The court, at General Term, said: “Was this agreement within the statute of frauds ? We think not. The plaintiff sought by his action simply to recover of the defendant the agreed price for real estate sold and transferred to him. The plaintiff had fully performed the agreement upon his part by executing and delivering to the defendant a deed of his interest ■ in the premises, and the 'defendant had had the full benefit of such title. This contract between the parties was fully executed, except that the defendant had not paid the plaintiff the price agreed upon between them, as he had promised to do. This promise was not within the statute of frauds, and was not required to be in writing. (Bowen v. Bell, 20 Johns., 340; Thomas v. Bieldnson, 12 N. Y., 364; Bennett v. Abrams, 41 Barb., 619 ; Johnson v. Nathorn, 2 Keyes, 476; Ely ■V. McNight, 30 How., 97; Murray v. Smith, 1 Duer, 413.)
    “ It follows, therefore, that there was no error on the trial of this action for which the judgment herein should be reversed, and the judgment and order appealed from should be affirmed, with costs.”
    
      E. A. Vam SicMe, for the appellant.
    
      G. A. Qla/rh, for the respondent.
   Opinion by

Martin, J.

Present — Learned, P. J., Bockes and Martin, JJ. .

Judgment and order affirmed, with costs.  