Opinion
April, 1906.
Joseph Fischer, for appellants.
Sternberg Jacobson, for respondents.
The plaintiffs as vendees and the defendants as vendors entered into a contract for the sale of the defendants' real estate. Thereafter, the defendants proposed a sale to them of the plaintiffs' interest in the contract for the sum of $1,600; the plaintiffs accepted the offer and a payment of $50 was made by the defendants on account. The plaintiffs being ready and willing to carry out the agreement, and the defendants having refused to pay, this action was brought to recover the balance of the agreed sum; and, after verdict for the plaintiffs, the court entertained a motion to set aside the verdict, granted the motion and directed a dismissal of the complaint. The ground of the decision was that the agreement in suit, for the purchase of the vendees' interest in a contract for the sale of lands, was an agreement involving the transfer of plaintiffs' interest in real estate, hence, not being evidenced by a writing signed by the plaintiffs, was void under the Statute of Frauds and afforded no consideration for the defendants' promise upon which the action is founded.
In the case of Fleischman v. Plock, 19 Misc. 649, the question now before us was considered by this court and the conclusion was reached that the Statute of Frauds was not available, under these circumstances, to defeat an action founded upon the defendants' promise.
The judgment and order appealed from must, therefore, be reversed and the cause remitted to the court below for entry of judgment upon the verdict, with costs to the appellants.
SCOTT and TRUAX, JJ., concur.
Judgment and order reversed and cause remitted to court below for entry of judgment upon the verdict, with costs to appellants.