
    Hettie Parker Kyner, Appellant, v. Emmett Bolton, as Administrator with the Will Annexed, etc., of Olive Wright, Deceased, Respondent.
    Third Department,
    January 6, 1916.
    Statute of Frauds — when defense not available on appeal—bills and notes — note given to carry out parol agreement not to bid on lands at partition sale—when Statute of Frauds no defense — consideration.
    The defense of the Statute of Frauds cannot be taken for the first time upon appeal.
    It is no defense to an action on a promissory note that it was given by the maker, a defendant in an action of partition, to her codefendant, to carry into effect a parol agreement, whereby the payee was not to bid at the partition sale, but was to allow the maker to bid in the premises. This, because, even though the original parol agreement were void under the Statute of Frauds, it has been .fully carried out by the parties, and also because the action is brought upon the notes and not upon the oral agreement itself.
    As the payee of the promissory notes, being a tenant in common, agreed not to bid upon the partition sale, there was a consideration for the notes passing from her to the maker.
    Appeal by the plaintiff, Hettie Parker Kyner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Otsego on the 2d day of October, 1914, dismissing the complaint upon the decision of a referee.
    
      Harry J. Mosher, for the appellant.
    
      Ulysses O. Welch, for the respondent.
   Howard, J.:

Prior to April t, 1899, the plaintiff and Olive Wright were tenants in common of certain lands in Otsego county. Olive Wright had brought suit for the partition of the property and the sale was to take place on the above date. A few days prior to the day of sale the plaintiff and Olive Wright, who was her aunt, had a conversation concerning the property wherein it was agreed that Olive Wright was to give the plaintiff $5,500 for her one-half interest in the farm, $2,500 in cash and $3,000 in notes, and that Olive Wright was to bid off the farm. The sale took place and the property was struck off to Olive Wright. On the morning of April 24, 1899, Olive Wright signed the two notes, one for $1,000 and one for $2,000 (the notes in question) and delivered them to the plaintiff. Afterwards and on the same day she received the referee’s deed of the premises. Olive Wright died April 15, 1905, without having paid the notes. Subsequently the plaintiff gave notice to the executor that she held the notes and demanded payment. She filed the ordinary claim for the indebtedness against the estate, but the same was rejected and the matter was referred to a referee and became an action in the Supreme Court. The referee disallowed the claim and a judgment for costs has been rendered against the plaintiff.

On this appeal an attempt is being made by the defendant for the first time to present the defense that the contract between the two women was contrary to the Statute of Frauds and, therefore, void. This question was not thought of or litigated before the referee and cannot, therefore, be considered here. This tribunal sits, not as a court of original jurisdiction, but as a court of review. It is not within the purview of our jurisdiction to consider issues in the first instance; we sit only to correct errors in the courts below. This has been repeatedly held. (Marion v. Coon Construction Co., 157 App. Div. 95; Hammond v. Union Bag & Paper Co., 136 id. 100; Mulligan v. McDonald, 135 id. 536; Matthews v. Matthews, 154 N. Y. 288; Goldman v. Cohen, 167 App. Div. 666.) However, inasmuch as we are about to order a new trial we are disposed to express ourselves on this subject for the guidance of the parties, in case the question presents itself again. And in this connection it is only necessary to say that if there was an agreement that the decedent was to give the plaintiff $2,500 in cash and $3,000 in notes for her interest in the property, and that the decedent was thereupon to hid in the property the agreement has heen fully carried out. The property was bid in by the claimant, the cash was paid and the notes delivered, and it is immaterial whether the agreement before it was performed was capable of enforcement or not. This action is not brought on the agreement, but on the notes, and, therefore, the Statute of Frauds has no application.

From a careful reading of the evidence it becomes apparent that Olive Wright wished to secure to herself the ownership of the premises which she and the plaintiff held together. Her conversation with Dr. Lough, just prior to the contract in question, makes this quite certain. She evidently feared that the plaintiff might attempt to purchase the farm at the sale and she wished to avoid this danger. A reasonable interpretation of the conversation between the two women results in the conclusion that they agreed between themselves that Olive Wright should give the plaintiff $5,500 for her share in the farm; that the partition sale should be allowed to proceed; and that the plaintiff would refrain from bidding at the sale so that Olive Wright might obtain the property and get the referee’s deed. Perhaps this was considered to be the simplest way of consummating the arrangement. It was an adjustment of the matter to the satisfaction of both parties and was perfectly legitimate. At all events a legal and abundant consideration for the notes passed from the plaintiff to Olive Wright.

The genuineness of the signature of Olive Wright to these notes was proven beyond dispute and beyond doubt. The plaintiff’s testimony as to the conversation with her aunt, drawn out by defendant’s counsel, was wholly undisputed. In fact it was strongly corroborated by the testimony of Dr. Lough. No fraud is charged and none was proven. Indeed the record discloses no defense to the claim either on the facts or in the law.

The judgment and decision appealed from should be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event.

All concurred; Kellogg, P. J., in result.

Judgment reversed on law and facts, referee discharged, and new trial granted, with costs to appellant to abide event. The court disapproves of the 5th, 6th and 9th findings of fact; and finds, in place of the 9th finding made by the referee, that the notes were duly made and executed by Olive Wright on April 2Í, 1899, and on that day delivered to the plaintiff.  