Doty v. Rensselaer County Mutual Fire Insurance

Cochrane, J.: The plaintiff improperly characterizes her proposed pleading as an amended and supplemental complaint. It alleges no material fact occurring since the commencement of the action. The fact that the insurance company has since the commencement of the action paid the policy to the defendant Doty may affect the relief which equity will grant, but equity shapes its relief according to the facts established at the trial, and such relief, so far as it depends on the payment of the policy to the defendant Doty, would not be affected by the presence or absence of that allegation in the complaint. The proposed pleading is in reality an amended complaint. It is admitted that the agreement between the plaintiff and her husband alleged in the complaint was oral. It is, therefore, legally unenforcible, but it does not follow that it is in equity unenforcible. The rule is stated in Woolley v. Stewart (222 N. Y. 347, 350) as follows: “ An oral agreement to convey an estate or interest in real property, other than a lease for a term not exceeding -one year, is nugatory and unenforcible. (Real Property Law [Cons. Laws, ch. 50], § 242.) A party to the agreement may legally and rightfully refuse to recognize or perform it. The breach of a void agreement is not a fraud or a wrong in law. (Levy v. Brush, 45 N. Y. 589.) He may, however, withdraw himself from the policy and defense of the statute, or waive its protection, by inducing or permitting without remonstrance another party to the agreement to do acts, pursuant to and in reliance upon the agreement, to such an extent and so substantial in quality as to irremediably alter his situation and make the interposition of the statute against performance a fraud. In such a case a court of equity acts upon the principle that not to give effect to those acts would be to allow the party permitting them to use the statute as an instrument defending deception and injustice.” The theory of the plaintiff is that her husband gave her a life estate in the premises in question in fulfillment of his obligation to support and maintain her as his wife and that she accepted the same in satisfaction of such obligation, and that for twelve years this contract has been observed by both parties whereby during all of that time she has relin [32] quished such remedies against him as the law recognized for her support and maintenance, and she also alleges that by-reason of said agreement she has expended large sums of money in improving the premises. These facts, if established, may entitle her to equitable relief within the rule above enunciated. Perhaps she is not in as favorable a position as she would be except for the partly performed contract. The proposed complaint shows on its face that she has no adequate remedy at law for the enforcement of the void contract. What she seeks is a specific performance of the contract; a very familiar and fertile field for the intervention of equity. The same principle was involved in Freeman v. Freeman (43 N. Y. 34) and Lobdell v. Lobdell (36 id. 327), where partially performed parol contracts to convey real estate were decreed in equity to be specifically performed on the ground that non-performance would work injustice and hardship to the promisees. The fact that the house has burned and that the husband is in receipt of insurance money as a result thereof does not change the legal situation. The insurance money takes the place of the house. Whatever interest in the house the plaintiff had, a corresponding interest attaches to the insurance which is a substitute for the house. The proposed complaint, therefore, states a cause of action against the defendant Doty. As to the defendant insurance company it is made a defendant in an equity action merely to enable the plaintiff to reach money which as between the company and her husband concededly belongs to him and in respect to which as between her husband and herself she claims an interest. She makes no independent claim against the company. We are not now considering the merits of the controversy but the sufficiency of a pleading. If there is any doubt it is better to permit the pleading to be served. (People v. Beguelin, 184 App. Div. 759; Merrihew v. Kingsbury, 150 id. 40; Washington Life Ins. Co. v. Scott, 119 id. 847; Muller v. City of Philadelphia, 113 id. 92; Milliken v. McGarrah, 164 id. 110.) The rights of the parties whatever they may be may best be safeguarded by a trial on the merits of the questions raised by the proposed pleading. [33] The order should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs. All concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.