
    Mary Henning, Resp’t, v. Libbie Miller, as Administratrix, etc., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 06, 1894.)
    
    1. Contract—Statute op frauds.
    Where land is conveyed under an agreement void by the statute of frauds the grantor may recover its value on an implied promise to pay.
    2. Costs—Executors.
    Where a reference of a disputed claim is ordered after the amendment of 1893 to § 2718 of the Code, the costs are awarded as in an action.
    Appeal from a judgment in favor of plaintiff, and from an order awarding costs to him.
    
      Philip A. Laing, for app’lt; C. W. Sickmon, for resp’t.
   Bradley, J.

The trial was of a disputed claim made by the plaintiff against the estate of the defendant’s testatrix. The referee found that the plaintiff/ being the owner of an undivided one-third, part of certain lands, entered into an agreement with the defendant’s testatrix whereby it was verbally agreed between them that, in consideration of a conveyance by the- plaintiff to her of her interest in such lands, the defendant’s testatrix would devise and bequeath an equal undivided one-third part of all the estate, real and personal, of which she should die seized and possessed, to the plaintiff; that the plaintiff, in performance of the agreement, made such coveyance by deed, in which the consideration expressed was $1,100, and that the value of the plaintiff’s interest in the premises was then $366.66 ; that nothing has been paid to. her on account of the conveyance, and that the testatrix, by her will, devised and bequeathed to Libbie Miller all her estate, real and personal, except $100 conditionally bequeathed to the plaintiff ; and that at the time of her death she owned real estate valued at $500, and personal property of the value of $1,000. And as conclusion of law the referee determined that the plaintiff was entitled to recover $366.66, with costs and disbursements, and that if she receive the $100 legacy it be applied as payment upon the judgment. There is no serious controversy about any "of the facts so found by the referee, except that of the agreement between the plaintiff and the defendant’s testatrix, and there is evidence tending to support that fact.

On the review of a former trial (66 Hun, 558; 50 St. Rep. 559)r the paroi agreement was treated as one for the reversion to the plaintiff of the real estate conveyed to the grantee on the death of the latter; and the court held that the agreement, being within the statute of frauds, was void, and therefore ineffectual to cut down the estate which the deed purported to convey to a lesser estate. The evidence upon the trial, now the subject of review, tended to prove that the agreement of the grantee was to pay' the consideration for the conveyance in the manner as found by the referee, and that the conveyance was made to her by the plaintiff pursuant to such an agreement. In that view, as she failed to make payment in that manner, the plaintiff is not without remedy, although the agreement is void. While, for that reason, it will not support an action founded upon it, the plaintiff may recover the value of the property conveyed. Robinson v. Raynor, 28 N. Y. 494; Day v. N. Y. C. Railroad Co., 51 N. Y. 583 ; Reed v. McConnell, 133 N. Y. 425, 435 ; 45 St. Rep. 227 ; Id., 62 Hun, 153 ; 41 St. Rep. 815 ; Quackenbush v. Ehle, 5 Barb. 469 ; Lisk v. Sherman, 25 Barb. 433; Rosepaugh v. Vredenburgh, 16 Hun, 60; Bonesteel v. Van Etten, 20 Hun, 468. The action, in such case, does not rest upon contract, other than that implied, to pay the value of that which the party sought to be charged, or he whom he represents, has received upon the faith of his repudiated void promise from the claimant, when it can be done without the support of such agreement. None of the cases cited by the defendant’s counsel hold to the contrary of that proposition. In Morse v. Inhabitants of Wellesley, 156 Mass. 95, the oral promise of the grantee of certain premises conveyed by the plaintiff, to grant back to the latter certain privileges in them, was held ineffectual to support an action. As no such reservation was contained in the deed, or by any written contract, the promise sought to be enforced was within the statute of frauds, and was not available to qualify the estate which the deed, by its terms, purported to convey. In the present case the conveyance of. the entire estate of the plaintiff to the defendant’s testatrix is not questioned. The plaintiff seeks her remedy as a creditor of the estate represented by the defendant as such administratrix. It is suggested on the part of the defendant that the change in the state of facts from those on the first trial, permitted by the evidence on the last trial, is inapplicable to the plaintiff’s disputed claim, as presented to the defendant, and upon which this action is founded. If that were so, a serious difficulty would have been encountered by the plaintiff. Eldred v. Eames, 115 N. Y. 401 ; 26 St. Rep. 277. But such is not the fact. The claim, as made, and rejected by the administratrix, was that of an indebtedness of the estate of her testatrix for an undivided third part of the real estate conveyed by the plaintiff to her. This is the claim to which the evidence was directed on the trial. The referee certified that the plaintiff’s demand was duly and in due time presented, was wholly rejected, and the payment of the demand unnecessarily resisted by the defendant, and that the plaintiff was entitled to costs. Thereupon, after hearing the parties, the court ordered that the plaintiff recover her costs and disbursements against the defendant. It is now insisted that costs were improperly allowed to the plaintiff. By reason of the amendment to section 2718, Code Oiv. Proc., made in 1893, and which had taken effect at the time of the reference to the referee who made the report in question, this became an action, and must be treated as such. Adams v. Olin, 78 Hun, 309 ; 60 St. Rep. 695. The right of the plaintiff to recover costs was therefore dependent upon the statute (Code Civ. Proc. § 1836). The action was brought within he provisions of that section by the certificate of the referee. Nothing appears in the record to justify the conclusion that the referee’s certificate was not permitted by the facts disclosed at the trial. Ely v. Taylor, 42 Hun, 205; 5 St. Rep. 127; Field v. Field, 77 N. Y. 294; Garter v. Beckwith, 104 N. Y. 236; 5 St. Rep. 617 ; Matson v. Abbey, 141 N. Y. 179 ; 56 St. Rep. 690. In the special proceeding of Vaughn v. Strong, 66 Hun, 278 ; 49 St. Rep. 319; the facts upon which the court that the claim was hot unnecessarily resisted were mainly presented by the uncontroverted affidavit of the defendant. In the present case, nothing essentially bearing upon the question of costs appears outside of the evidence taken at the trial. The judgment and order should be affirmed. All concur.  