
    Anthony Quinto, Respondent, v. Arthur Alexander, Appellant.
    Second. Department,
    December 5, 1907.
    Real property — contract to sell — Statute of Frauds available to vendor only.
    A vendee of lands cannot recover earnest money paid upon the ground that the co'ntract was not enforcible under the Statute of Frauds because not signed by him. The vendor only can raise the question of the Statute of Frauds, and the vendee is bound after tender by the vendor even though the contract be oral.
    Appeal by the defendant, Arthur Alexander, from a judgment-of the Municipal Court of the city of New York in favor of the plaintiff.
    
      Meyer Greenberg, for the appellant.
    
      James E. Smyth, for the respondent.
   Gaynor, J.:

This action is to recover back $50 paid by the plaintiff to the defendant as a deposit on a contract for the purchase by the former of the latter of a .lot of land. The defendant did not refuse performance, but the -’plaintiff claims the right "to recover on the ground that the contract was not sufficiently expressed in writing to satisfy the statute of frauds. But this is wholly irrelevant. It is only the vendor who can raise that question. Even if-.the contract be oral, the. vendee has to carry it out or forfeit the amount which lie has paid, on a tender of performance by the vendor. The statute only requires'tliat the contract of sale be reduced to writing and signed by the vendor; the vendee dogs not need to sign it (Real Property Law, § 224; Collier v. Coates, 17 Barb. 471; Pelletreau v. Brennan, 113 App. Div. 806).

The judgment should be reversed.

•• Woodward, Jenks, Hooker and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  