
    Joseph Ruggerio, Respondent, v. Rudolph Leuchtenburg, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Damages — Particular contracts and relations — Contracts for sale or purchase of land — Breach by vendor.
    Frauds, Statute of — Requisites and sufficiency of writing — Writings constituting memorandum — Sale of land.
    The memorandum required by the Statute of Frauds of the sale of real property must contain all the substantial and material terms of the contract between the parties.
    When the memorandum is complete as to the amount to be paid and no other terms are expressed the amount will be presumed to be payable in cash.
    In an action by the vendee upon the vendor’s breach of an agreement for the sale of real property where no special damages are pleaded, in the absence of fraud, the damages, if any, must' be limited to the return of the deposit with interest, and the expenses to which the plaintiff lias been put.
    Appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan.
    William G. Mulligan, for appellant.
    Herman B. Goldstein, for respondent.
   Hendrick, J.

In view of the fact that the Statute of Frauds was not pleaded as a defense, the written memorandum between the parties must be treated as the contract for the sale of the farm in question and the farm products. It is a well settled rule in this State that the memorandum required by the statute must contain all the substantial and material terms of the contract between the parties. It must show on the face what the whole agreement is, so far .as the same is executory. Drake v. Seaman, 97 N. Y. 230: The memorandum in question is wholly lacking as to other conditions of sale, but it is complete as to the amount to be paid, $3,500-; and, no other terms being expressed, the amount will he presumed to be payable in cash. The introduction of parol evidence of the terms of payment was a varying of the terms of the written contract and constituted error when objected and excepted to. Ho tender of performance was made by the plaintiff, and hence he is not in a position to recover. Moreover, the rule of damages adopted by the court was erroneous. The contract was for the sale of the farm and the farm products, and is an entirety. Ho special damages wc re pleaded; and, in the absence of fraud, the damages, if any, must be limited to the return of the deposit, with interest, and the expenses to which plaintiff had been put.

Giegerich and Ford, JJ., concur.

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