
    Franklin P. Roberge, Resp’t, v. Maria N. Winne et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Specific performance—Statute of frauds—Agreement to substitute MORTGAGE.
    As part payment for certain land defendant was to assign a second mortgage on real property, but, it being found that it was worth nothing, she agreed to substitute a first mortgage on lands belonging to her; which she afterwards refused to do. Held, that there was a valid consideration for the agreement; that the statute of frauds did not apply, and that specific performance was properly decreed.
    Appeal from judgment in favor of plaintiff, in an action to compel specific performance of an alleged parol agreement.
    
      Edmund Luis Mooney and Andrew J. Shipman, for app’lts; Frank H. Gray, for resp’t.
   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 vendee has transferred the property in question without consideration and fraudulently to evade lier promise, and is worth nothing beside this land. Beardsley v. Duntley, 69 N. Y., 577; Newman v. Nellis, 97 id., 285; Miller v. Ball, 64 id., 286.

The judgment should be affirmed, with costs.

Pratt, J.

The justice of the judgment 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 pi’oof 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.

Dykman, J., not sitting.  