
    Marcus Nasanowitz, Appellant, v. Emma Hane, Respondent.
    (Supreme Court, Appellate Term,
    May, 1896.)
    1. Léase — Statute of Frauds — Memorandum.
    A receipt merely acknowledging payment of a month’s rent under a . lease to be given for more than a year, which does not describe or refer to the premises or specify the terms and covenants of the lease to be given, does not constitute a memorandum which will take the contract out of the Statute of Frauds.
    2. Same — Performance.
    A part performance by the payinéñt of money is not sufficient to take the contract out of the statute, as the money may be returned, and the parties thus placed in their former position.
    3. Money had and received — Void contract for leasing.
    Money paid upon, a contract for leasing which is void only because of the want of statutory formalities cannot be recovered as money had and received where the defendant was willing to perform and to make the covenants in the lease satisfactory to the plaintiff.
    4. Evidence — Testimony on former trial.
    Any person who was present in court and heard the testimony on a former trial is competent to testify in respect thereto.
    Appeal by plaintiff from judgment of the Eighth Judicial District Court.
    A. H. Sarasohn, for appellant.
    • Jacob Levy, for respondent.
   McAdam, J.

The action is to recover $133.33 as so much money had and received by the defendant to the plaintiff’s use. The money was paid to the defendant April 16, 1895, and the following re-' ceipt given therefor: “ Eeceived this day from "Marcus Easanowitz one hundred and thirty-three and. 33-100 dollars for one month’s rent in advance from May 1, 1895, to June 1, 1895. Lease to be given at $1,600 for one year, and $1,800 for next two years.. E. Hanf.”

The statute provides that every contract for the leasing for a longer period than one year * * * shall be void, unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and.be subscribed by the party by whom the lease * * * is to be made.” 4 R. S. (8th ed.), p. 2589, § 8.

The memorandum signed by the defendant .was not intended to operate as a present demise; possession was not given or intended to be taken under it, and it appears upon its face that a formal lease was intended to effectuate the intention of the parties. Law v. Pemberton, 10 Misc. Rep. 362; s. c., 63, N. Y. St. Repr. 435; Fullerton v. Dalton, 58 Barb. 236; Sourwine v. Truscott, 17 Hun, 432; Mayer v. McCreary, 119 N. Y. 434.

The lease which the defendant proposed to execute contains a fire clause; also covenant against assigning the lease or letting or underletting the premises; to permit persons wishing to hire or purchase to see the premises, and on or after the 1st of February next preceding the expiration of the term to. permit the usual notice of “ to let ” or “ for sale ” to be placed upon the walls or doors of the -premises; that all improvements made by the tenant shall belong to the landlord at the expiration of the term; that the landlord shall-not be liable on .account of leakage; that the tenant shall execute .and fulfill all the ordinances of the city corporation applicable to said premises, and all orders and requirements imposed by the board of health and the police department in,, upon or connected with said premises, and pay all Croton water taxes upon the premises during the term. If the receipt be considered the memorandum required by the statute, the tenant was not bound to assent to all the covenants imposed on him by the lease prepared by the defendant, but only to such of them as are usually incident to such hirings, and, therefore, presumed to have been within the contemplation of the parties, in order to secure the full effect of the agreement. The one the tenant particularly objected to was in regard to' paying Croton water rent, and this the defendant could not as of right demand (Taylor’s L. & T., § 45) in the absence of proof on her part, that such a covenant is usually incident to such a hiring, a matter in respect to_ which no evidence was given.

The memorandum required by the statute should contain the substantial terms of the contract, expressed with such certainty that they may be understood without reference to parol evidence. Waterman on Spec. Perf., § 234; Browne on St. of F., § 371; Mentz v. Newwitter, 122 N. Y. 491; Routledge v. Worthington Co., 119 id. 592. In this instance the memorandum does not describe or-even refer tó"the premises, the subject-matter and most material part of the contract. Lancaster v. De Trafford, 31 L. J. Ch. 554. It does not specify whether the subject-matter is a whole house or part-of one; while the lease offered describes parts of two adjoining houses as-the property.

It has been suggested that the' payment of the $133.33 constituted a part performance sufficient to take the case out of the operation of the statute. But the authorities hold that such result does not always follow; for the money may be: returned and the parties placed in the situation they were in before the payment was made. Rosen v. Rose, 13 Misc. Rep. 565; 68 N. Y. St. Repr. 370; 34 N. Y. Supp. 467; Dunckel v. Dunckel, 141 N. Y. 427. Aside from this, the rulé of law is that to take a case out of the operation of the statute there must have .been full performance by one of the parties to the contract, the doctrine of part performance being confined to courts of equity. Waterman on Spec. Perf., § 259.

Assuming, therefore, that the contract is void, not because it was illegal, but for want of the ordinary statutory formalities, it does not follow that the plaintiff is entitled to recover back the amount paid by him as so much money received by the defendant to and for his use. The rule allowing a recovery in such cases is confined to instances where the party receiving the money has refused or become unable to carry out the contract on his part, the plaintiff himself having faithfully performed or offered to perform. Dowdle v. Camp, 12 Johns. 451; Browne on St. of Fr. (3d ed.), § 122; Lockwood v. Barnes, 3 Hill, 128; Abbott v. Draper, 4 Den. 51; Collier v. Coates, 17 Barb. 471; Calvin v. Prentice, 45 N. Y. 165; Harris v. Frink, 49 id. 24. This requires us to examine the testimony for the purpose of determining whether the failure to carry out the arrangement was owing to the fault of the plaintiff or defendant, and whether any error to the prejudice of either party was committed in determining this question.

The defendant testified that when the plaintiff objected to the water tax she agreed to eliminate it from the lease. The plaintiff denied that the defendant expressed any such intention, and this evidence became material to the determination of the issue involved. With the view of contradicting the defendant in respect to this matter the plaintiff tried to.show by those who heard the defendant testify upon a former trial of the action that the defendant testified differently in respect to the water tax; but the justice, under objection by the defendant’s counsel, declined to permit the plaintiff to make such proof, upon the ground that the record of the former trial was the best evidence.. There was no necessity for producing the stenographer who took the evidence on the previous trial, for any person who was present in court and heard the testimony was competent to testify in respect thereto. Grimm v. Hamel, 2 Hilt. 434; Pickard v. Collins, 23 Barb. 444; Sitterly v. Gregg, 90 N. Y. 686, 688; Chapman v. Brooks, 31 id. 75; McCabe v. Brayton, 38 id. 196; Oderkirk v. Fargo, 61 Hun, 422.

■ The rule is that a witness may be'impeached by acts done or statements made out of court or on a different occasion inconsistent with the testimony given by the witness on the trial (Baylies Tr. Pr. 190), and it was for this purpose the testimony was offered. The justice found in favor o-f the defendant, the person whose testimony the plaintiff unsuccessfully sought to.impair by’the evidence excluded, and the error presumably injured the plaintiff. Greene v. White, 37 N. Y. 405; Baird v. Gillett, 47 id. 187, 188; Starbird v. Barrons, 43 id. 200; Williams v. Fitch, 18 id. 546; O’Hagan v. Dillon, 76 id. 170; Worrall v. Parmelee, 1 id. 519; People v. Wiley, 3 Hill, 214; Neudecker v. Kohlberg, 81 N. Y. 304, 305; Hawley v. Hatter, 9 Hun, 134.

It follows that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Daly, P. J., and Bischoff, J., concur.

Judgment reversed" and new tidal ordered, with costs to appellant to -abide event.  