Volk v. Olsen

Brady, J. Taking the testimony of plaintiff to be absolutely true, it appears that the defendant was the owner of certain buildings, the demolition of which he contemplated for the purpose of erecting a large building upon their site. The plaintiff orally agreed to remove the old buildings and pay therefor the sum of $500, and the defendant agreed to accept that amount. The buildings as they stood were assuredly real estate. Hot being in writing the contract was void. So far as the agreement allowed the plaintiff to enter upon the land it was a license and legal though oral (Dubois v. Kelly, 10 Barb. 496) ; but so far as it permitted the removal of the buildings and granted an interest therein it was for the sale of an interest in land and void. If the seller is to sever the thing from the land and deliver it, the contract may be oral; but if the buyer is to sever it and take it away, the case is within the statute and the contract must be in writing. Bish. Cont. (2d Ed.) 1907, § 1293; Green v. Armstrong, 1 Den. 551; Killmore v. Howlett, 48 N. Y. 570; Vorebeck v. Roe, 50 Barb. 302. If, on the other hand, the agreement be considered one for the sale of goods or chattels, it was void under section .21, Personal Property Law [228] (Laws of 1897, chap. 417), as the value exceeded fifty dollars, and the buyer did not receive any part of the goods nor pay any part of the purchase price. Again, the action is brought for damages for breach of contract. The plaintiff was bound to tender the purchase price. This was not done. Tender of a check even if made was not sufficient. On the question of preponderance of evidence, the burden was upon the plaintiff. We do not think be sustained the burden. His testimony stands contradicted by that of the defendant and of another witness whose disinterestedness is not attacked. The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. Gildersleeve and Seabury, JJ., concur in result. Judgment reversed and new trial ordered, with costs to appellant to abide event.