
    Baldwin against Palmer.
    A party to a contract void by the statute of frauds, who has voluntarily performed -part, cannot therefore be compelled to peform the residue.
    This, even tlmugh he has performed all that part of the contract which is within the statute, and the residue, upon which the action was brought ’was void only from its connection with the part already performed.
    The cases where a recovery is permitted for money paid or services performed upon a void contract are those where the action is brought in disaffirmance of such contract, and not in affirmance and with a view of enforcing it.
    Baldwin brought assumpsit against Palmer in the superior court of the city1 of New-York, in March, 1847. The declaration was upon a special agreement between the parties, and contained; also the usual money counts; The defendant: pleaded non-assumpsit.
    Upon .the trial before Mr, Justice Oaklet and a jury, the plaintiff proved that on the 25th of January,. 1847, he entered into a- verbal agreehient with, the defendant for the purchase of certain - real estate in the city of New-York; that the defendant had at the time an agreement for the purchase of the premises from William B. Astor and others, who held the title as trustees, for the sum of $8000; that the defendant agreed to convey the premises, or cause them to be conveyed, free of incumbrances, for $8250. He stated at the time of making the bargain that the $250 would be required to pay taxes, assessments and expenses. On the twenty-ninth of January the sum of $8000 was paid to Astor and others, trustees, and $250 to the defendant, and a conveyance executed from Astor and others directly to the ■ plaintiff. After the deed was given, an assessment for a local improvement was discovered, for $152.24, which had been confirmed by the city authorities on the 23d of January, 1847. The plaintiff had paid this assessment, the amount of which he now sought to recover. An admission of the defendant was proved, that the plaintiff “ ought not to pay the assessment; that "he had bought the premises free and clear from the assessment, and that he (the' defendant) was going to try to get the trustees, to pay the whole or part of it;”
    The defendant moved for a nonsuit on the grounds: First. As to the special • count; that there' was a total variance between that count and the evidence; Second. As to the money-counts, that there was no evidence of any contract or promise whatever, either express or implied, on the part of the defendant,' to pay the assessment in question, which could properly be submitted-to a jury; Third. That all the promise on the part of the defendant which could he inferred from the testimony was void, as not being-in writing, by the statute of frauds; Fourth. That, as far as regards the money counts, the money received by the defendant of the plaintiff, to pay the assessment mentioned in the declaration, was so received under and by virtue of an agreement connected with and forming a part of the agreement for the-sale of real estate, and a part of the agreement being void, as not being in writing, the whole is void and the plaintiff cannot recover. Upon these grounds the court granted a nonsuit, judgment upon which was affirmed at general term. The plaintiff brought error to this court.
    
      Barnard for the plaintiff in error.
    
      A. Crist for the defendant in error.
   McCoun, J.,

delivered the opinion of the court.

The several objections taken on the trial below, and upon which the nonsuit was granted and afterwards sustained, are reducible to this one, viz., that the agreement on which the plaintiff relies for the reimbursement of the money expended by him in the payment of an assessment was a part of the agreement for the sale to him of the land, and was by parol, not reduced to writing, and therefore void by the statute. (2 R. S., 134, §8.)

Although the agreement has been executed between the parties, so far as to consummate the sale by a conveyance and the payment of the purchase money, yet a voluntary part performance of a contract originally void is not a ground for a compulsory peformance of the residue of the same contract. The party sought to be charged is still at liberty to raise the objection in a court of law. Part performance, without more, is not a waiver of the objection. There are cases where a part performance of a parol contract is allowed by a court of equity to dispense with the requirement of the statute. This, however, is upon the principle of preventing a fraud. A court of law has no such dispensing power.

The demand in question appears to be a very meritorious one, and such, according to the contract proved, as the defendant ought to pay; but it is founded upon or grows out of a contract so made as to be of no force or validity whatever in law. Van Alstine v. Wimple (5 Cow., 162) was quite as strong if not a stronger case for the plaintiff, and there it was held as settled law, upon the authority of Lexington v. Clarke (2 Ventris, 223), and Chater v. Beckett (7 Term R., 197), and Crawford v. Morrell (8 John., 253), that though a part of a* contract which was void by the statute of frauds had been actually performed, yet another part of the same contract, forming one entire agreement, could not be separated from the rest and be the subject of an action, either on the agreement or the money counts. I am unable to perceive any distinction in principle between those cases and the present. The cases to which we have been referred by the counsel for the plaintiff were cases of actions brought to recover back money paid or for services performed upon contracts which had been afterwards rescinded by consent of parties, or disavowed by the party sued because not binding in law. In all such cases the money is to be refunded, and the services rendered in part performance are to be paid for, because the contract is at an end, and the action brought for the purpose is in disaffirmance of the void contract, and not in affirmance and with a view of enforcing it as in the present case. Gillet v. Maynard (5 John., 85); Rice v. Peet (15 id., 503); Burlingame v. Burlingame (7 Cow., 92); King v. Brown (2 Hill, 485), and Lockwood v. Barnes (3 id., 128), are all to that effect.

The nonsuit was properly granted, and the judgment below must be affirmed.

Judgment affirmed.  