Conlon v. Mission of Immaculate Virgin for Protection of Homeless & Destitute Children

O’Brien, J.: Upon the trial it was contended by the defendants that this action was barred by prior actions brought for the purpose of admeasurement of dower and for a construction of the will of the decedent, but as these contentions were not passed upon or considered, and, if material, the plaintiff thereon should have her day in court, it is unnecessary to discuss the effect or bearing of the prior actions further than to note in passing that they form no basis of the decision or judgment rendered against the plaintiff. She alleged and sought to prove an agreement with the decedent, her husband, by which, in consideration of her services and certain moneys advanced to him, the decedent promised to leave her all his property. The decision was based upon the grounds, first, that the plaintiff failed to sustain the burden placed upon her of establishing her claim by clear and convincing proof that such an agreement was made, and, secondly, that if it were established, as the greater part of her husband’s estate consisted of real property, she was not enti [168] tied to the specific performance of such an oral contract, the contention being that such an agreement under the Statute of Frauds is void because not in writing. With respect to the first ground, that the oral contract was not established by clear and convincing evidence, we are now presented with three statements, signed by the decedent, which have a direct bearing upon and tend to support her claim that such an agreement was made.. It is admitted, because not denied, that these, papers are in the handwriting of the decedent; that they have been found since the trial and that their existence at the time of the trial was unknown to the plaintiff. Notwithstanding, it is contended that, under the rules governing a motion for a new trial upon newly-discovered evidence, these are insufficient and do not sustain the test as required by the rule. Thus, the defendant insists that the plaintiff does not show that she exercised due diligence, nor that she could not, had she made a sufficient search, have had these •papers upon the trial. The answer to this is. apparent from her statement that she did not look for them because she did not know of their existence, and that it was only after the trial, and when engaged in another and different search, that she unearthed these writings. It would be unreasonable to charge plaintiff with laches for failure to. make search or to find papers the existence of which were unknown to her. In further contending that these statements at best are but declarations and do not rise to the dignity of añ agreement and were never delivered and, therefore, would not aid the plaintiff upon a new trial, we think that the respondent overlooks the bearing and the purpose for which these writings could be used upon the new trial. As they were never delivered the plain tiff jcould not rely upon them as establishing a written contract, but they are available as corroborating evidence to support her contention of an oral agreement. We do not think we should dwell upon their force or effect because their weight, in connection with the rest of the evidence, is to be determined by the trial judge upon the new trial. We deem it proper, however, to say that in our view their tendency is to strengthen the plaintiff’s case by furnishing more satisfactory evidence than was given upon the former trial, and, if unimpeached or not refuted, might lead to a different decision. [169] Taking, therefore, the uncontradicted evidence bearing upon the finding of these papers and their authenticity, we think that under all the tests that are applicable to motions of this kind, the plaintiff has brought herself within the rules entitling her, upon this newly-discovered evidence, to a new trial. The further insistence that even though upon such new trial she should establish the oral agreement this would be unavailable for the reason that it would be void under the Statute of Frauds (Laws of 1896, chap. 547, § 224) as applying to real estate, is not an exact statement of the law. Whether an oral agreement which requires for its fulfillment the conveyance of real estate will be enforced depends on the nature of the contract itself and what has been done under it. Thus, in Ludwig v. Bungart (48 App. Div. 613), in speaking of an action brought for breach of an oral contract for the conveyance or devise of real property, it was said: “ Such an agreement is void under the Statute of Frauds unless there has been such performance ' on the part of the plaintiff as to take it out of the operation of that statute. Where the oral agreement is to convey the land upon the payment of a specified sum of money, such payment alone is not deemed a sufficient part performance, inasmuch as a recovery of the consideration in an action at law would fully indemnify the party by whom the purchase price was paid. (Miller v. Ball, 64 N. Y. 286.) Where, however, the entire consideration has been paid and the purchaser has taken possession by consent of the vendor, has made improvements upon the land, paid the taxes and incurred expenditures which cannot easily be made good to him in an action at law, he will be entitled to enforce the contract in equity. (Winchell v. Winchell, 100 N. Y. 159, 163:) So, where the consideration for the promised conveyance consists of services to be rendered and the services are rendered but the land is not conveyed, equity will not compel a conveyance unless the character of the services is so peculiar that it is impossible to estimate their value by a pecuniary standard — as in the case of an agreement to care for an epileptic. (Rhodes v. Rhodes, 3 Sandf. Ch. Rep. 279.) ” Whether the services which the plaintiff alleges she performed were of that exceptional character that their value could not be estimated by a pecuniary standard is upon the evidence to be determined upon the trial. [170] Having reached the conclusion, therefore, that the plaintiff has presented facts entitling her to the relief sought, and without intending to in any way pass upon the merits of her claim or the defenses which havé been heretofore or may be hereafter urged against her right to relief, we think that the motion for a new trial upon the ground of newly-discovered evidence should have been granted. The order accordingly should be reversed, with ten dollars costs and disbursements of this appeal to the appellant, and the motion granted upon the payment of all the costs in the action, including the costs and disbursements of other appeals up to the date of the motion. Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred. Order reversed, with ten dollars costs and disbursements to appellant, and motion granted upon payment of all costs in the action, including costs and disbursements of other appeals up to the date of the motion.