
    Joseph E. Shea, Appellant, v. Frank A. Keeney, Respondent.
    First Department,
    March 20, 1913.
    Landlord and tenant — specific performance of executory contract to lease premises — complaint.
    A complaint in a suit for the specific performance of an agreement to lease certain premises for a period of six years, which does not show whether or not the agreement was in writing, but alleges that “the defendant agreed to lease to the plaintiff and the plaintiff agreed to hire from the defendant ” the premises for the period specified at a certain rental; that the plaintiff was to deposit with the defendant a certain sum as security; that the plaintiff duly performed all the terms of the agreement on his part excepting in so far as he was prevented from so doing by the defendant, but that the defendant has failed and refuses to make the lease and that plaintiff has no adequate remedy at law, states a good cause of action.
    A court of equity may enforce specific performance of an executory contract to lease premises.
    Appeal by the plaintiff, Joseph E. Shea, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of January, 1913, denying the plaintiff’s motion for judgment on the pleadings.
    
      George Edwin Joseph, for the appellant.
    
      Rollin W. Meeker, for the respondent.
   Laughlin, J.:

This is a suit in equity for the specific performance of an agreement to lease certain premises upon which a theater had been erected in the borough of Manhattan, New York, for the period of six years from the 1st day of September, 1912.

The complaint does not show whether or not the agreement was in writing. It is alleged that “'the defendant agreed to lease to the plaintiff and the plaintiff agreed to hire from the defendant” the theater for the period, specified at an annual rental of $15,000, payable in forty weekly installments commencing on the 1st day of September, 1912, and that plaintiff was to deposit with the defendant the sum of $1,500 as security, which sum was to be applied in payment of the last rental for the term; that plaintiff duly performed all of the terms and conditions of the agreement on his part to be performed excepting in so far as he was prevented from so doing by the defendant and duly tendered the amount he was required to deposit as security and duly offered to enter into the lease and was at all times ready, able and willing to perform the agreement on his part, but that the defendant has failed and refused to perform on his part and has failed and refused to carry out the agreement or to make the lease, and that plaintiff has no adequate remedy at law.

The defendant demurred on the ground that the complaint fails to state facts sufficient to constitute a cause of action. It appears by the record that the motion was denied upon the ground that the plaintiff alleges a voluntary executory agreement to lease,” and that equity will not enforce such an agreement. It is contended, in effect, in behalf of the respondent, that the agreement rests in parol and is without consideration and that, therefore, it is unenforcible; and also that plaintiff has an adequate remedy at law. We are of opinion that these contentions are untenable. The agreement upon which the action is based could not be performed within one year and it would, therefore, be void if not in writing; but the Statute of Frauds is a defense to be pleaded and proved and it is not to be presumed, since it is not so alleged, that the agreement rests in parol. (Stern v. Drinker, 2 E. D. Smith, 401; Livingston v. Smith, 14 How. Pr. 490; Cozine v. Graham, 2 Paige, 177; Marston v. Swett, 66 N. Y. 206; Crane v. Powell, 139 id. 379; Matthews v. Matthews, 154 id. 288; Dupignac v. Bernstrom, 37 Misc. Rep. 677; affd., 76 App. Div. 105.) It is within the jurisdiction of a court of equity to enforce specific performance of an executory contract to lease premises. (Pittsburgh Amusement Co. v. Ferguson, 100 App. Div. 453; Steiner v. Hellman, 7 id. 248; Covert v. Brinkerhoff, 41 Misc. Rep. 230.) The allegation that the plaintiff has no adequate remedy at law is the customary allegation in such cases and is sufficient to admit of proof upon the trial to show the necessity for relief at the hands of a court of equity.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, but with leave to defendant to withdraw the demurrer and answer on payment of the costs of the appeal and of the demurrer.

Ingraham, P. J., McLaughlin, Clarice and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.  