
    (71 Hun, 172.)
    ROBERGE v. WINNE et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Specific Performance—Parol Contract—Consideration.
    Defendant assigned a mortgage to plaintiff as a part of the consideration-for realty conveyed to her.by plaintiff. Subsequently the mortgage was found to be worthless, and defendant agreed by paroi to substitute another mortgage. Held that, defendant having received the consideration therefor, such paroi agreement is not within the statute of frauds, and maybe specifically enforced.
    Appeal from special term, Westchester county.
    Action by Franklin P. Roberge against Maria N. Winne and Elizabeth Cavannah for the specific performance of a paroi agreement to execute to plaintiff a mortgage on certain real estate. Plaintiff had judgment, and defendants appeal.
    Affirmed.
    Argued before BARNARD, P. J., and PRATT, J.
    Mooney and Shipman, for appellants.
    Frank H. Gray, for respondent.
   BARNARD, P. J.

The plaintiff conveyed to the defendant Winne certain real estate in New Jersey. It was part of the contract for the payment of the consideration that Winne should assign a second mortgage of $3,500 on real property on Thirty-Ninth street, New York, the first mortgage being $21,000. It was found that there was a second mortgage of $5,000, and that the $3,500 mortgage was worth nothing. The defendant Winne agreed to substitute a first mortgage on her lands in Westchester county for $3,500, and this second mortgage was to be released. The defendant now refuses to comply. The statute of frauds does not cover the case. Mrs. Winne has received the consideration for her promise. If the contract was an executory one, no action would lie upon it; but it has been performed by one party, and it would be inequitable to refuse a specific performance when the vendeehas transferred the property in question without consideration and fraudulently to evade her promise, and is worth nothing besides this land. Beardsley v. Duntley, 69 N. Y. 577; Newman v. Nellis, 97 N. Y. 285; Miller v. Ball, 64 N. Y. 286.

The judgment should be affirmed, with costs.

PRATT, J.,

(concurring.) The justice of the judgment given below cannot be questioned. We need only examine whether any technical objections require our interference. Appellants insist that by filing a bill in equity in New Jersey for rescission plaintiff is precluded from maintaining an action in affirmance of' the contract. A sufficient answer is that no such defense is pleaded.

It is said that no consideration existed for the agreement to give the mortgage decreed to be executed. A full consideration was paid in advance for the prior mortgage. When, upon the failure of that mortgage, the parties agreed upon a substitution, no further consideration than their mutual promises was necessary. The consideration of the first mortgage attached, and sustains the last. Nor is there any merit in the objection that to enforce the agreement to substitute a valid mortgage for the worthless one plaintiff must surrender the store, which was part of the original consideration. As to the objection that the decree provides for a mortgage to run a year, while the proof is silent as to the time the new mortgage should run, the law implied that the mortgage should run for a reasonable time. We think one year is such a length of time,' and that there is no variance.

Judgment affirmed, with costs.  