Opinion
July Term, 1903.
Edmund L. Mooney [ Frederick A. Card with him on the brief], for the appellant.
James J. Allen, for the respondents.
On the first trial the plaintiff's verdict was set aside and a new trial was granted. We affirmed that order. ( 59 App. Div. 120. ) The plaintiff then amended her complaint so as to state two separate and complete causes of action. The sole relief demanded is for damages for breach of contract. We held in the 59th Appellate Division Reports ( supra) that "as the agreement is unquestionably one which, by its terms, is not to be performed within one year from the making thereof, it was void unless in writing." I do not perceive how the amendment has cured this defect. For it matters not whether the plaintiff plead upon a writing which is insufficient, or plead an oral agreement when it must be in writing.
The learned counsel for the appellant stated upon the argument: "We made out a contract which was void by the Statute of Frauds, but having been performed to a certain extent, we are entitled to the fruits of performance as far as the performance went, and the damages on the repudiation of the agreement for the then current year." Suffice it to say that even if it be so, the plaintiff cannot enforce any such right in an action at law to recover damages for a breach of such agreement, as was said by HIRSCHBERG, J., in the opinion upon the first appeal ( supra), when a similar contention was made.
It is further contended that as oral evidence was admitted to clear an "ambiguity" in the writing, therefore there is presented a sufficient written memorandum. The objection found to the writing, as indicated in our previous opinion, was not that it was ambiguous, but that it was "fatally defective," in that it failed to express the consideration pleaded or any consideration; and, second, that it did not contain any agreement on the part of the defendants to pay taxes, etc., but otherwise expressly confined their liability. There was an obvious difference between an ambiguity and an omission.
There is no force in the contention that the relation of the parties was landlord and tenant, and that although the agreement was void, being a lease for longer than a year and not in writing, yet it was effective so as both to create a tenancy from year to year and to regulate the terms of the possession of the defendants. The defendants were not lessees for they had neither possession nor right of possession. (1 McAdam Landl. Ten. [3d ed.] 127.) Both the pleading and the proof clearly indicate that the defendants were put in charge of the premises by the plaintiff for the purpose of managing them, and to collect the rents from the tenants.
It is further contended that, in any view of the contract, the plaintiff is entitled to recover the February rents and the sum given to the defendants to be applied to the taxes. But if the contract was valid, and the judgment erroneous, the defendants were entitled to the rents and the payment of the taxes as consideration of the contract, and the plaintiff is relegated to her damages. If the contract was invalid, she cannot sue as upon a breach thereof, though she might have her action for moneys had and received. (See Day v. N.Y.C.R.R. Co., 51 N.Y. 583, 590; Reed v. McConnell, 133 id. 425, 435.)
The judgment must be affirmed, with costs.
BARTLETT, WOODWARD, HIRSCHBERG and HOOKER, JJ., concurred.
Judgment and order affirmed, with costs.