Opinion
January, 1928
Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. The consideration of each alleged oral agreement is too indefinite to sustain such an agreement. The acts relied upon as part performance are insufficient to take the alleged oral agreements out of the Statute of Frauds. They are not unequivocably referable to the oral agreements. The husband's marital duty explains them, they being a performance of the husband's duty to furnish a habitation for which in other circumstances he necessarily would pay rent, and which habitation the husband was obligated to furnish the wife. ( Cooley v. Lobdell, 153 N.Y. 596; Woolley v. Stewart, 222 id. 347; Burns v. McCormick, 233 id. 230.) Findings of fact and conclusions of law inconsistent with this memorandum are reversed, and new findings will be made in accordance herewith. Lazansky, P.J., Rich, Kapper, Seeger and Carswell, JJ., concur. Settle order on notice.