Opinion
November 17, 1967
Appeal by defendant from an order of the Supreme Court, Franklin County, which denied a motion made pursuant to CPLR 3211 (subd. [a]), to dismiss the complaint herein. The plaintiff asserts five causes of action in his complaint. In the first cause of action, it is alleged that the defendant was the wife of the late Charles I. Christy who died in April, 1958; that the defendant and her husband, prior to his death, were tenants by the entirety of a farm in Potsdam, New York; that in 1953, Charles I. Christy became ill and repeatedly requested the plaintiff, a nephew, to physically and financially assist him in the management of the farm, and represented to the plaintiff that if he did render such assistance, the farm would be left to him by will, and that the plaintiff would be the owner of the real property and personal property, machinery and cattle upon the death of Charles I. Christy and the defendant; that such requests and representations were made in the presence of the defendant; that the plaintiff did actually render such assistance until the death of Charles I. Christy in April, 1958; that thereafter on the defendant's request and promise that the farm would belong to him, he managed the farm and made expenditures for the benefit of the farm in reliance on the representations made by Charles I. Christy prior to his death, and by the defendant subsequent thereto. Plaintiff further alleges that, since the death of Charles I. Christy, the defendant has sold two parcels of land and intends to convey other parcels of land from said farm in violation of the rights of the plaintiff. In addition, plaintiff alleges four other causes of action in which he sets forth expenditures made by him for the use and benefit of the defendant, or work, labor and services performed by him for the use and benefit of the defendant whereby she became unjustly enriched. The plaintiff seeks a judgment declaring and enforcing his rights pursuant to the alleged agreement and representations made by the defendant and her husband, and impressing a trust on the real property described in the complaint to enforce such rights or, in the alternative, a money judgment based on the last four causes of action. Defendant's motion to dismiss the complaint is founded on the Statute of Frauds and the Statute of Limitations under CPLR 3211 (subd. [a], par. 5) and on the further ground that there is no privity between the plaintiff and the defendant because the complaint alleges that the agreement was made between the plaintiff and defendant's husband; this apparently under CPLR 3211 (subd. [a], par. 7). No affidavits or other extrinsic evidence were submitted by either side on the motion. Accepting the allegations of the complaint as true, the alleged acts of the plaintiff in reliance on the alleged promises may be sufficient to establish part performance on the plaintiff's part to remove the agreement from the Statute of Frauds. ( Roberts v. Fulmer, 301 N.Y. 277.) The burden will be upon the plaintiff to establish performance on his part, unequivocally referable to the agreement and sufficient to take the case out of the operation of the Statute of Frauds. ( Burns v. McCormick, 233 N.Y. 230.) The six-year Statute of Limitations asserted by the defendant cannot defeat the complaint on this motion since it is not the date the contract was made which governs, but rather the date of its breach. The complaint is dated June, 1964 and the alleged breach did not occur until a time subsequent to April, 1958. The exact date of the alleged breach being unknown, we cannot hold that the Statute of Limitations barred the action. Defendant also asserts a lack of privity between herself and plaintiff, apparently attempting thus to implement CPLR 3211 (subd. [a], par. 7) as an alternative basis for this motion. The complaint, however, is not limited to assertions that plaintiff contracted only with defendant's husband. There is a definite allegation that the contract was reaffirmed directly with defendant after her husband's death. Insofar as it might be applicable, lack of privity can be set up as a defense in the answer. Order modified, in the exercise of discretion, so as to permit the defendant to allege the same defenses in her answer asserted as grounds used on this motion, and, as so modified, affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.