
    Martha Kommer, Appellant, v. Cornelius Daly, Respondent.
    
      Oral agreement by a tenant of a servient ’tenement to repair a drain running, through his premises, and by the tenant of the dominant tenement to give therefor the use of part of his premises — it creates merely a revocable license.
    
    An oral agreement on the part of a tenant, whose premises were, so far as appeared, burdened with an easement of drainage in favor of the adjoining premises, with the tenant of such adjoining premises, whereby the tenant of the servient tenement agreed to repair, and to .keep in repair during the term of the tenant of the dominant tenement, the sewer to which the drainage easement applied (the repair or removal of which had been required by the board of health), in consideration of an agreement by the-tenant of the dominant tenement to allow the tenant of the servient tenement to use, during the former’s term, a portion of the dominant tenement, is void under the Statute . of Frauds, and the performance by the tenant of the servient tenement of his portion of the agreement will not entitle him to have such agreement enforced as against the successor in title of the tenant having the dominant tenement.
    Under such circumstances the right of the tenant of the servient tenement to use a portion of the dominant tenement is founded simply upon a revocable license, and it is immaterial upon the question of the right of revocation whether it was founded upon a consideration or not.
    Appeal by the plaintiff, Martha Kommer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county,of Mew York on the 6th day of April, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.
    
      Bernard M. L. Ernst, for the appellant.
    
      Edmund Coffin, for the respondent.
   Patterson, J.:

The plaintiff was seized as tenant for a term of years of premises in the borough of Manhattan in the city of New York, known as Nos. 388, 390 and 392 Eleventh avenue. She alleges that the defendant was in possession and withheld from her the rear portion of the lot known as No. 392 Eleventh avenue and that he had erected thereon certain wooden sheds. The plaintiff brought this action to recover possession of the premises and for damages for withholding the same. The defendant set up in his answer an affirmative defense,- as follows: That on or about the 1st of May, 1896, he was a tenant in possession under a lease of the premises known as No. 394 Eleventh avenue and at the same time John Kommer, the plaintiff’s predecessor in title, was the tenant in possession under a lease of the premises mentioned in the complaint, which adjoined the defendant’s premises; that Kommer’s premises had no sewer connection except by a sewer running through and under the house occupied by the defendant; that that sewer was in a broken and dilapidated condition and its removal or repair was required by the health department of the city of New York; that on or about, the 1st of May, 1896, an agreement was made between Kommer and the defendant that the latter would repair and maintain the said sewer connection for the benefit of the premises so leased and occupied by Kommer for the remainder of Kommer’s term, in consideration of which Kommer conceded to the defendant the right to occupy and use the rear portion of the lot No. 392 Eleventh avenue; that the agreement was made with the knowledge of the plaintiff; that thereafter-and in pursuance of the agreement the defendant at his own cost and expense repaired and restored the sewer connection of 392 Eleventh avenue with the public sewer in Thirty-fourth street and has maintained it through his premises and for the use of the premises described in the complaint; that John Kommer is now deceased, and the plaintiff’s right is derived through him. The defendant further alleged that his possession or use of any part of the premises mentioned in the complaint lias been under the agreement with John Kommer and with the consent of the plaintiff, and that she has continued to use and enjoy the sewer connection so maintained by the defendant during all the time for which she may have had any right or estate in the premises occupied by her. On the trial the defendant gave proof respecting the alleged agreement and the court directed a verdict for the defendant.

That the agreément sought to be proven by the defendant was void under the Statute of Frauds is conceded, but it is claimed that it will be recognized and enforced in' equity or as‘an equitable defense because of performance by the defendant of what he was required to do tinder it. Undoubtedly there are cases in which parol contracts with reference to land have been- upheld in equity,whére an adequate consideration has been shown and where performance or part performance of the parol agreement clearly appears to have been solely with a view of carrying out the agreement and where it would be a fraud upon one party unless the agreement were carried out by the other. , In such cases, courts of equity act not upon the agreement but upon the fraud. In this case the only consideration set up in the answer for the agreement on the part of Kommer to allow the use by the defendant of the rear portion of the premises Ko. 392 Eleventh avenue is an alleged concession of a right to Kommer to use the sewer running through the defendant’s premises and an undertaking of the defendant to repair his own sewer. But it is not made to appear that Kommer, by reason of this alleged agreement, acquired any new right. The defendant’s premises had always been burdened, so far' as appears, with an easement of, drainage in favor of the premises described in the complaint and the defendant would have been under obligation' to repair the sewer on his own premises if it were out of order, and had been condemned by the board of health. The repairs were made to the sewer on the defendant’s premises, the whole sewer connection under the cellar of Ko. 394 from its connection with Ko. 392. It does not appear in the proof that the defendant ever claimed of contended that this easement in his premises for the plaintiff’s benefit did not exist. It cannot be said that under the proof the repairing of the sewer by the defendant which he would have been obliged to make in any event, is to be regarded as having, been done simply because of the agreement made with Kommer.. The proof is inadequate to establish such an agreement as would be-enforced in equity. The right of the defendant to use and occupy the rear portion of the premises described in the complaint arose; under a license which was revocable, and it is immaterial whether a consideration was given for it or not. (Spink v. Corning, 61 App. Div. 84; Wiseman v. Lucksinger, 84 N. Y. 31; Cronkhite v. Cronkhite, 94 id. 323 ; Crosdale v. Lanigan, 129 id. 604; Eckerson v. Crippen, 110 id. 591.) The defendant acquired no estate in the plaintiff’s land. The relation between the parties, being that of licensor and licensee, the plaintiff had a right to revoke that license.

The judgment should be reversed and a new trial ordered, with, costs to appellant to abide the event.

Van Brunt, P. J., Ingraham, McLaughlin and Laughlin, JJ.,. concurred.

Judgment reversed, new trial ordered, costs to appellant to abide.' event.  