
    Apollonia Warth, Trading and Doing Business under the Firm Name and Style of Albin Warth, Respondent, v. Jacob Kastriner, Defendant, Impleaded with Charles Eisenman, Appellant.
    Second Department,
    June 7, 1907.
    Statute of Frauds — patent license to run more than one year — evidence.
    A contract to pay royalties for the use of patents having more than one year to run and providing that the licensee shall not use similar machines during the 'life of- the patents, must be in writing and oral evidence to establish such contract is incompetent. •
    The Statute of Frauds creates a rule-of evidence.
    Appeal by the defendant, Charles Eisenman, from a judgment. of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of "the county of Richmond on the 30th day of October, 1906, upon the verdict óf a jury, and also from an order entered in said clerk’s office on the 26th day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    The complaint alleges that the plaintiff’s predecessor and the defendants entered into two written agreements on April". 15th, 1892,.and July 2d, 1892, by which the defendants received from.the said predecessor and used in their business a certain machine of his patent, and on which he had a series of letters patent issued to him between April 9th, 1872, and April 10th, 1888, both inclusive, and agreed to pay therefor a specified sum down,, which they did pay, and then §100 every six months as a royalty ; '"with the right to the defendants to return the machine at any time and have the payment of royalties cease from that time, ripon condition that they should not thereafter use any other similar machine instead until the said patents should haxm run out. The machine xvas returned, and all royalties paid up to-that time. But the evidence'was that-the defendants substituted another machine instead, and the action is to-recover the royalties accruing after the machine- xvas returned.
    
      Henry B. Ketcham [J. Ard Haughwout with him on the brief], for the appellant.
    
      Augustus J. Koehler, for the respondent.
   Gaynor, J.:

The written agreements pleaded were never signed, by the defendants. They were sent to them by the other party, the plaintiffs predecessor, and retained by. them, and the learned trial judge allowed evidence for the plaintiff to the effect that they orally assented to their- -provisions. This was error, for the contract they contained was one which by its terms was to continue until the termination of the patents, and at the time of the making thereof there were seventeen of the- patents which still had from one to thirteen years to run, the life of a patent being seventeen years., The statute of frauds makes void every agreement not in writing and signed by the party to be- charged therewith — i. .6., sought to be charged therewith — and which “ by its terms is not to be performed xvithin one year from the making thereof.” . This statute created a rule of. evidence. It renders oral evidence incompetent to prove in whole or .in part a contract which' must be proved by á writing, and the objection to such evidence for iiicompetency was good.. The motion to direct a verdict for the defendant should have.been granted.

The judgment and order should be reversed. - - '

Jenks, Hookee, Rich and Miller, JJ., concurred.

Judgment and order reversed and. new "trial granted, costs to abide the event.  