
    Jennie Fogal, Resp’t, v. J. Seaver Page et al., Ex’rs, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    1. Vendor and purchaser—Sale op land by parol.
    Where a person, agreed verbally with another to sell her land and subsequently without having terminated or disaffirmed the contracts conveyed the land to a third person, Held, that the vendor was entitled to recover the money paid upon the contract.
    2. Same—Limitation.
    Where an action is brouslit within six years from the time of such conveyance, the statute of limitations is not a defense.
    
      Appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial.
    
      Henry Wehle, for app’lts; Henri Pressprich, for resp’t.
   Daniels, J.

The testator held a mortgage against premises owned by the husband of the plaintiff and upon which they resided in the county of Westchester. The mortgage was foreclosed and the premises purchased by the testator at the sale, and to maintain the action it is alleged that he entered into a contract to convey the premises to the plaintiff for the payment of the sum of $2,800. This contract, as the evidence tended to prove it, was not in writing, but if made at all was verbal and made on or about the 9th of January, 1880.

It is alleged that the plaintiff had paid upon the contract the sum of $1,552.58, and that the testator conveyed the premises to another person on or about the 20th of May, 1884, and thereby disabled himself to perform the contract alleged to have been made. It did appear upon the trial that the premises were verbally leased to the husband of the plaintiff after the sale in the foreclosure proceedings for the sum of $150 a year and the payment of the taxes, and that all the moneys had been paid for rent and taxes, with the exception of two items, one of $200 and another of $100. The right of the plaintiff to maintain the action was accordingly restricted to these two items. And if the contract was made as it was alleged, and the evidence of the plaintiff’s husband tended to prove it, and it was not afterwards terminated or dis-affirmed until the conveyance of the premises to another person in 1884, then the plaintiff was entitled to recover so much money as had been paid by her towards the purchase price of the premises. Chittenden v. Morris, 52 Hun, 601; 23 N. Y. State Rep., 807; Harris v. Frink, 49 N. Y., 24; Day v. N. Y. Central R. R. Co., 51 N. Y., 583.

And the defense of the statute of limitations interposed no objection to that recovery, for the reason that the action was commenced within six years after the conveyance.

As the evidence was given by the husband of the plaintiff it did tend to prove the making of such a contract, and that it was carried along without any refusal to perform on the part of the plaintiff, or the testator, until the time when he conveyed the •premises to the other party. The making of this agreement was denied by the attorney through whose agency, with the approval of the testator, it was affirmed to have been made. And his testimony was that these two sums of money were not paid upon an agreement for the conveyance of the property to the plaintiff, but to pay fire costs and expenses of the foreclosure suit. That was denied by the plaintiff’s witness. And there was evidence from two other persons sworn on behalf of the defendants, and contradictory evidence supplied by the affidavit of the plaintiff's witness, tending to confirm the correctness of the evidence given by the attorney. But this evidence was not so forcible in its effect as to deprive the plaintiff of the right to submit the questions to the jury upon which her action depended. It was still a question of fact to be determined by them whether this agreement had been made as it was alleged it had been in support of her suit. And they by their verdict must have found that fact in her favor.

In submitting the case to the jury it has been objected that they were not necessarily required to find the existence of the contract to entitle the plaintiff to recover. This objection has been taken to the statement that, ■ ®

“If Mr. Fogal made a verbal contract for the repurchase of this property, although the law requires such a contract to be in writing, and while it might be that Mr. Fogal could not have enforced that contract, if, in the belief that he had such a contract, he paid money on account of the purchase price, he would have the right to recover it back in this action, it being conceded that Mr. Page conveyed the property away in his lifetime, and consequently could not convey it to Mr. Fogal. But, of course, upon the testimony as it stands, it is a question of fact to be passed upon by the jury, as to whether Mr. Fogal’s account is correct, and if it is he is entitled to recover the $300.

And if the court did intend to place the right of the plaintiff to maintain the action upon the mere belief of Mr. Fogal that he had such a contract and paid the money on account of the purchase price, then the direction would be clearly erroneous. But in the preceding part of the charge the case was submitted to the jury upon the question whether the contract had been proved to have been made as it was affirmed on the part of the plaintiff. And when the exception was taken to this particular part of the charge the justice presiding responded “ I hold that he is entitled to recover it back provided it was paid as a part of the purchase price. ” And previously it was stated “ if you think that the three hundred dollars was on account of the payment made for the property, you will find a verdict for three hundred dollars, with interest, but if you think it was a payment on account of these costs then you will find a verdict for the defendants.” With this explanation and what had previously been said, the jury could not have misapprenended the ground upon which the right of the plaintiff was intended to be placed. It was not merely on the belief of Fogal, but upon the fact that a contract had been made for the sale of these premises to the plaintiff. And while the point is undoubtedly somewhat involved, no good reason presents itself for supposing that the jury could have been misled by the use of these words as they were employed in this paragraph of the charge.

Objection was made to the competency of the husband of the plaintiff to testify as to what had taken place between himself and the testator. But he do§s not appear to have been interested in the result of the action, in any form otherwise than his feelings would of course be enlisted in favpr of the success of his wife. But this is not the interest which, 'under the provisions of the Code, would render him incompetent to testify to a transaction or conversation with a deceased person. He had no such interest, and therefore was a competent witness in her behalf to prove that the attorney was authorized by the testator to make the contract.

When the $200 was paid a receipt was given for it in the name of the plaintiff in this action as so much money received from her by the hands of John J. Fogal on account of the agreement to be entered into between herself and the testator for these premises. At that time it was no doubt contemplated, as the evidence indicated the fact to have been, that a formal agreement was designed to be made, but was never in fact entered into. And this receipt confirms the- statement of the witness Fogal that the money was paid and intended to be applied on account of an agreement for the sale or conveyance of these premises. And as to that sum of money there was no deficiency in the evidence as to her right to recover if the jury credited the statements of her husband, as they seem to have done.

But the further sum of $100 does not appear to have been paid by her, or from any money or property belonging to her. This payment was made on the 24th of January, 1880, and by the receipt it was acknowledged as coming from Mr. Fogal ánd being paid on account. And his own testimony throughout is that he paid this money to the attorney of the testator. But there is not a word of evidence in the case that it was money of his wife, the plaintiff, or paid by her direction, or in any manner whatever which would entitle her to maintain an action for its recovery from the testator or the executors of his estate. In that respect there was no evidence from which the jury could reasonably find that this sum of money was paid otherwise than the witness stated it to have been paid, and that was by himself without any reference whatever to the plaintiff in the action. On this subject there was a misdirection consequently, for the jury were required by the charge if they found for the plaintiff to include this sum of $100 in their verdict, and that they seem to have done.

Upon this ground, therefore, the defendants were entitled to have the verdict set aside pursuant to their motion for a new trial, or that this sum, together with the interest allowed upon it, should be deducted from the judgment under the authority and consent of the plaintiff. And to attain that end the judgment should be reversed and a new trial ordered, with costs to the defendants to abide the event, unless within twenty days after notice of this decision the plaintiff stipulates to deduct this sum of $100, with the interest included upon it as it has been recovered by the verdict. And if such stipulation shall be given, then the judgment as so modified should be affirmed, without costs of the appeal to either party.

Van Brunt, P. J., and O’Brien, J., concur.  