Thacher v. New York, Westchester & Boston Railway Co.

Greenbaum, J. It seems to be the settled rule in this state that the right to recover" the value of services upon an implied assumpsit to pay therefor, upon an agreement void under the Statute of Frauds, arises when it is shown that the plaintiff has been ready and willing" to perform and the other party has repudiated or refused to perform. Day v. New York Central R. R. Co., 51 N. Y. 583; Galvin v. Prentice, 45 id. 162. In the latter case it is said: “ The effect of the statute is to prevent either party from enforcing performance of the verbal contract against the other, but not to make a different contract between them.” Erben v. Lorillard, 19 N. Y. 299, 302, relied upon by defendant, is in harmony with the rule above set forth. The opinion of Grover, J., at page 302, states:. “ When the agreement fixing the compensation is void, it furnishes no evidence of value.” At page 304, Denio, J., concurring, says: “ It is true, a party who has made a payment, in money, property or services upon a contract which is invalid, for want of the formalities required by the statute of frauds, may, upon the other party refusing to go on, recover back the amount of such payments in an action upon an implied assumpsit.” We thus find an express recognition of the principle recognized in the Day and Galvin cases, supra. It therefore follows that the Statute of Limitations did not begin to run until long after 1903, and that it is not a bar to a recovery herein. The case of Sweeny v. 62 City of New York, 173 N. Y. 414, 416, is <3ecisive upon the point that plaintiffs are entitled to interest from February 29, 1908 the -time of demand for payment of their claim. .The reference to the Sweeny case in the opinion of Markham v. Stevenson Brewing Co., 111 App. Div. 178, to which . defendant’s counsel calls attention, has no bearing upon this rule. A verdict is accordingly directed pursuant to stipula-. tion in favor of plaintiffs for $12,400 and interest thereon, computed from February 29, 1908, to March 11, 1912, to ■wit, the sum of $15,398.73, and the clerk is directed to enter the verdict for $15,398.73 as of the date of March 11, 1912. Judgment for plaintiffs.