
    Chelsea Exchange Bank, Respondent, v. Metta Weinstein, Appellant, and Others, Defendants.
   Order reversed upon the law, with ten dollars costs and disbursements, motion denied and judgment reinstated, with ten dollars costs. In our opinion, the stipulation in question, made by appellant in the New York county action, does not warrant the granting of a new trial because it cannot change the result. The mortgages in question create an interest in real property. (Sleeth v. Sampson, 237 N. Y. 69.) The Statute of Frauds requires, in effect, that such an interest can be created only by a deed or conveyance in writing subscribed by the person creating it or his lawful agent thereunto authorized in writing. (Real Prop. Law, § 242.) An oral authorization is insufficient. (Davis v. Dunnet, 239 N. Y. 338; Nestell v. Hart, 202 id. 280.) While the stipulation in question was binding upon the appellant in the action in which it was made, it can have no greater effect in the case at bar than an oral admission and is, therefore, insufficient to satisfy the statute. The doctrine of performance invoked by the respondent has no application here because the respondent took these mortgages with notice and knowledge of the trust agreement. It had no knowledge of the parol authority of the appellant’s son, and did not rely thereupon. The mortgages were made entirely for the benefit of Kopple and his dummy corporation and with no benefit to the appellant. Lazansky, P. J., Young, Kapper and Tompkins, JJ., concur; Hagarty, J., dissents and votes to affirm.  