The nature of the contract is such that actions for its enforcement are instituted after the death of the promisor and consequently the difficulty of disputing the claim is enormous. Since claims based upon such oral contracts are frequently asserted and are unusually suspect (see Hamlin v. Stevens, 177 N.Y. 39, 47-48, 50; Matter of Ditson, 177 Misc. 648, 649-650, FOLEY, S.) they tend to hamper the expeditious and orderly administration of estates. It is true that an action upon an ordinary contract may be maintained to enforce an obligation of a person since deceased but that is not the usual case — it occurs by chance and not because of the nature of the contract. True it is, also, that the enforcement of the ordinary oral contract against an executor, like the enforcement of the claims of any of the decedent's creditors, affects a reduction of the assets available for distribution under a decedent's will.

Thus these cases cannot be considered on any ground as authority for the proposition that lifetime employment contracts are without the provisions of § 31(1). As further ground for its decision, the court in the Eckhart case pointed to dictum in In re Quigley's Estate, Sur.Ct. 1942, 179 Misc. 210, 38 N.Y.S.2d 330; Bayreuther v. Reinisch, 1st Dep't 1942, 264 App. Div. 138, 34 N.Y.S.2d 674, affirmed 290 N.Y. 553, 47 N.E.2d 959; In re Ditson's Estate, Sur.Ct. 1941, 177 Misc. 648, 31 N.Y.S.2d 468, that the purpose of the 1933 amendment was to prevent assertions of oral claims against the funds of deceased persons who after their death are unable to make a denial. That this amendment should be so limited seems quite doubtful, however, in view of the words of the Court of Appeals of New York in Meltzer v. Koenigsberg, 1951, 302 N.Y. 523, 99 N.E.2d 679 that "The language found in the statute is clear and unambiguous, and, as this court long ago declared, and frequently repeated, in the construction of statutes, the intent of the framers 'is to be sought first of all, in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation.

Because the complaint in this action seeks damages rather than specific performance, plaintiffs cannot rely on the part performance doctrine to remove this case from the Statute of Frauds. See Roulley, et al. v. Inex Co., et al., supra, at 16 n. 2; In re Ditson's Estate, 177 Misc. 648, 31 N.Y.S.2d 468 (Sup.Ct.N.Y.Cty. 1941); In Re Douglas' Will, 169 Misc. 716, 8 N YS.2d 717, aff'd 256 A.D. 1070, 12 N.Y.S.2d 359 (1939). Finally, plaintiffs claim that defendants should be barred from asserting the defense of the Statute of Frauds based on the doctrine of promissory estoppel.

However, part performance of an oral agreement not to be performed within one year does not take the agreement out of the Statute of Frauds. Grissman v. Union Carbide Corp., 279 F. Supp. 413 (S.D.N.Y. 1968); In re Ditson's Estate, 177 Misc. 648, 31 N.Y.S.2d 468 (Sur.Ct.N.Y.Co. 1941); Newkirk v. C.C. Bradley Son, 271 App. Div. 658, 67 N.Y.S.2d 459 (4th Dept. 1947); Deutsch v. Textile Waste Merchandising Co., 212 App. Div. 681, 209 N.Y.S. 388 (1st Dept. 1925). The complaint alleges that plaintiff's payment of increased rentals "is part performance of the said agreement which relates to an interest in or concerning land," and plaintiff contends that this case therefore comes under an exception to the usual rule.

Moreover the New York courts have held that the purpose of this 1933 amendment was to prevent assertion of oral claims against the funds of deceased persons who after their death are unable to make a denial. In re Quigley's Estate, 1942, 179 Misc. 210, 38 N YS.2d 330; Bayreuther v. Reinisch, 264 App. Div. 138, 34 N YS.2d 674, affirmed 1943, 290 N.Y. 553, 47 N.E.2d 959; In re Ditson's Estate, 177 Misc. 648, 31 N.Y.S.2d 468. The defendant's supplemental memorandum of law states that the court during oral argument of the motion indicated that such employment might be terminable within a year because the company might feel it would mean that the contract could be performed within a year is not the thought which the court intended to convey.

It is undeniable that subdivision 9 of section 31 of the Personal Property Law, enacted by chapter 104 of the Laws of 1943, effective March 11, 1943, under the sponsorship of the amicus curiae with the approval of the Insurance Department, was designed as the insurance counterpart of section 347 of the Civil Practice Act to prevent fraud against a deceased person and to end litigation based upon unsupported oral agreements with decedents "to assign" or to "name beneficiaries". However pertinent such enactment may be to situations depending for proof solely upon oral promise, it is not authority for dismissing the within complaint for insufficiency. Here we are not dealing with a cause of action based on an oral promise to give property in the future as in Matter of Ditson ( 177 Misc. 648); Rosseau v. Rouss ( 180 N.Y. 116), or to name a beneficiary ( Ward v. New York Life Ins. Co., 225 N.Y. 314), but rather to prevent consummation of a scheme between the insured and his sister to undo surreptitiously that which he, in fact, had done openly just as he had agreed to do. In this instance the plaintiff's case does not depend solely on an executory oral promise "to assign" the policy for, concededly, the policy when originally issued was delivered to her under circumstances indicating an intent "to assign" same to her. An insurance policy is but a chose in action ( Matter of Pastore, 155 Misc. 247) and delivery to the assignee or donee with intent to vest title is essential to a valid gift ( Matter of Van Alstyne, 207 N.Y. 298; Jackson v. Twenty-Third St. Ry. Co., 88 N.Y. 520; Marcus v. St. Louis Mut. Life Ins. Co., 68 N.Y. 625; McGlynn v. Curry, 82 App. Div. 431) and that delivery with such an intent also accomplishes a valid assignment ( Ridden v. Thrall, 125 N.Y. 572; Lo

(Personal Property Law, § 31, subd. 7.) Likewise any contract not to be performed within a year or "the performance of which is not to be completed before the end of a lifetime" is also void unless in writing (§ 31, subd. 1). If claimant was to recover, it had to be on the proof of an implied contract. Claims of this nature must be established by convincing and satisfactory evidence. ( Matter of Ditson, 177 Misc. 648; Matter of Van Slooten v. Wheeler, 140 N.Y. 624; Matter of Block, 258 App. Div. 342 and cases there cited.) The rule is that performance and acceptance of services raises the inference of an implied contract to pay the reasonable value thereof.

EPTL 13-2.1 (subd [a], par [3]) imposes a Statute of Frauds requirement for enforcement of "a promise by a personal representative to answer for the debt or default of his decedent". The purpose of this section is to require that all such agreements be in writing and "to outlaw as being against public policy claims based on alleged oral agreements" (Matter of Albin, 35 Misc.2d 322, 326; see, also, Rubin v Irving Trust Co., 305 N.Y. 288; Matter of Ditson, 177 Misc. 648). Any recovery by claimant herein, therefore, must be based upon proof of an implied contract because no formal contract was entered into.

Nor would the execution of such contracts, alone, constitute (nor are they alleged to constitute) sufficient part performance of the contract to take it without the statute. (See Alhambra Amusement Co. v. Associated First Nat. Pictures, 207 App. Div. 550, affd. 242 N.Y. 528; Matter of Ditson, 177 Misc. 648.) Finally, no claim is urged that plaintiff is entitled to recovery on these three contracts, as fully performed portions of a severable contract, and thus no need exists to examine that possibility.

Smith v. Irving TrustCo., 256 App. Div. 1070; Meltzer v. Koenigsberg, 302 N.Y. 523; Matter of Salerno, 8 Misc.2d 976.) Insofar as the alleged agreement might be regarded as one to make a testamentary bequest to claimant by will, it is likewise void because not in writing under subdivision 7 of section 31 Pers. Prop. of the Personal Property Law. ( Matter of Ditson, 177 Misc. 648, in which case Mr. Surrogate FOLEY reviews the history of the statute and indicates further that only full performance by both parties will remove such agreements from the effects of the statute. Other decisions to the same effect are: Matter of Quigley, 179 Misc. 210; Matter of Davis, 54 N.Y.S.2d 840; Matter of Kenny v. Brieger, 196 Misc. 85; Matter of Lettner, 112 N.Y.S.2d 540.