First Department, July, 1921. [Vol. 197 Gould v. Gould, 51 Hun, 9; Woolley v. Stewart, 222 N. Y. 347.) The facts in the case at bar differ materially from those in Gallagher v. Gallagher (135 App. Div. 457; affd., 202 N. Y. 572) and other cases cited by appellant. In the Gallagher case the deed had been given by a man to his wife for the sole purpose of enabling her to become the surety on the husband's bond. It is apparent that in such case it was necessary for a court of equity to intervene in order to prevent a fraud. Similar situations arose in Amherst College v. Ritch (151 N. Y. 282) and Ahrens v. Jones (169 id. 555). A court of equity will not override the Statute of Frauds unless it clearly appears that such statute would in the given case, except for the intervention of a court of equity, be an instrument of fraud. The facts alleged in the complaint in the case at bar show no such necessity. The order appealed from should, therefore, be modified by providing that the complaint be dismissed unless the plaintiff serves an amended complaint within twenty days from service of the order to be entered hereon, leave for which is granted on payment of ten dollars costs, and as so modified affirmed, without costs of this appeal. DOWLING and LAUGHLIN, JJ., concur; PAGE and GREENBAUM, JJ., dissent. PAGE, J. (dissenting): I cannot concur in the prevailing opinion that the agreement alleged in the complaint is too indefinite to be enforced in equity by specific performance. It is conceded that if the facts alleged can be proved, an action at law will lie to recover damages for the breach of the agreement to pay the $1,500 and the $500. But that is only a part of the agreement alleged. The remaining portion as alleged in the complaint is, "that the said parties the plaintiff, Frank J. Brockie and said Alice L. Ankele, shall each have a one-third interest in said property, and that in the event of the death of either, the said plaintiff or Alice L. Ankele, deceased, the share of the one so dying shall go to the survivor, that is plaintiff or the decedent." It is thought by the majority of my brethren that it is App. Div. 684] First Department, July, 1921. improbable that the plaintiff would give an absolute deed to his wife in reliance upon this oral agreement, when he might have reserved to himself such rights in the property as he desired to retain. We are not weighing evidence or considering the possibility of plaintiff's ability to prove the facts alleged. We are considering a demurrer to a defense of the Statute of Frauds, which has been overruled at Special Term, properly, if the defense alone is involved; but on the theory that a demurrer searches the record and reaches the first error in pleading, the sufficiency of the complaint is challenged. We must, then, consider that all the facts stated are true, and indulge every inference that can reasonably be drawn in favor of the plaintiff. It is not a question of whether he can prove the facts or of the improbability of his having done a thing that he has asserted he did do. We must accept the facts alleged as proved. If the portion of the agreement relating to payment by Alice L. Ankele is sufficiently definite to support an action at law for the breach (and I agree with Mr. Justice MERRELL that it is), the whole agreement is proper matter for enforcement in equity, as it relates to an interest in real property. That a contract calls for the creation of an interest in land has long been regarded as a demonstration that the remedy at law, which cannot compel specific performance, is inadequate. If any uncertainty exists by reason of the fact that the complaint does not name the person to whom the grantee was to pay the $1,500, it is removed by the recital in the will of Alice L. Ankele, a copy of which is annexed to the complaint and made a part thereof, of a debt of $1,500 due her husband, Robert Ankele (the plaintiff), in connection with the property in question, coupled with a mention of the $500 due the defendant Brockie. The liberal construction of the pleadings required by section 519 of the Code of Civil Procedure must be that the $1,500 was to be paid to the plaintiff. An agreement that A will transfer land to B, and B will pay $1,500 to A and $500 to C, and A, B and C each will have a one-third interest in the land, the survivor of A and B to succeed to the share of the other, is not so indefinite or uncertain so as to be incapable of enforcement. The answer to the question defined by Mr. Justice MERRELL depends First Department, July, 1921. [Vol. 197 not on the indefiniteness of the agreement, but on whether there has been sufficient part performance to take the case out of the Statute of Frauds. (See Real Prop. Law, §§ 242, 259.) The inquiry is not whether the agreement can be proved, but whether sufficient appears to require its enforcement in spite of the fact that it was not in writing. Here we have an agreement, in reliance upon which the plaintiff conveyed the land to his wife, thus fully performing his part. By the agreement he was to get $1,500 and a twothirds interest in case he survived his wife. Her will has attempted to disregard the agreement and give him only $1,500 and a one-fourth share of the net income and of the proceeds of the property when it is sold. Reference to the record on appeal in the case of Gallagher v. Gallagher (135 App. Div. 457; affd., 202 N. Y. 572), of which the prevailing opinion says: "It is apparent that in such case it was necessary for a court of equity to intervene in order to prevent a fraud," reveals that the complaint contained only one allegation, the counterpart of which is not found in the complaint under discussion, namely, that subsequent to the deed the husband had paid all taxes and water rents, had collected the rents and appropriated them to his own use, and the wife had made no protest. Here, however, we have the allegation that the wife had repeatedly promised to live up to the terms of the agreement and the plaintiff relied on her promises. The fraud is just as apparent as in the Gallagher case. The case of Gould v. Gould (51 Hun, 9), a decision of the General Term in the Fifth Department, cited in the prevailing opinion, has been expressly disapproved of by the same General Term in the later case of Gage v. Gage (83 Hun, 362, 364). McCartney v. Titsworth (119 App. Div. 547) was a three to two decision of the Appellate Division of the Fourth Department, which was never passed upon by the Court of Appeals. The action was against a life tenant to restrain waste. He defended on the ground of an oral agreement of his wife, from whom he held the life tenancy, to convey the land to him on request. The majority of the court considered only certain evidence and held it insufficient to show the defendant entitled to specific performance of any agreement that the farm should App. Div. 693] First Department, July, 1921. be deeded to him in consideration of his making certain improvements on it. The question was decided with relation to an agreement made after the property was conveyed to the wife. The minority of the court based their dissent on the proposition that the land was conveyed to the wife in performance of the agreement, and all the improvements were made in addition. The decision of the majority was based on a state of facts essentially different from the present case. The later case of Gallagher v. Gallagher (supra), which was affirmed by the Court of Appeals, should govern here, rather than McCartney v. Titsworth. In Woolley v. Stewart (222 N. Y. 347) the Statute of Limitations furnished ample reason for the decision; in fact, Judge CARDOZO concurred on this ground. The other remarks were not necessary to the conclusion reached. GREENBAUM, J., concurs. Order modified by dismissing complaint unless plaintiff serve an amended complaint, leave for which is granted on payment of ten dollars costs, and as so modified affirmed, without costs. ORINOCO REALTY COMPANY, INC., Respondent, v. MAURICE BANDLER, Appellant. First Department, July 8, 1921. Landlord and tenant action to recover rent of property in New York city defense that lease was executed under duress not established - lease executed prior to taking effect of rent laws of 1920 not affected thereby. -- In an action to recover rent of property in the city of New York the answer does not state facts sufficient to constitute the common-law defense of duress in the execution of the lease, where it is alleged merely that the plaintiff refused to renew the lease for a new term at a reasonable and fair market value, but demanded that defendant execute a lease for a term of three years at the unreasonable, excessive and oppressive rental of more than double the rent being paid; that said demand was made in anticipation of the so-called rent laws of 1920, which were then pending First Department, July, 1921. [Vol. 197 in the Legislature; that the defendant was unable to secure other housing facilities and protested against the force, coercion and intimidation of the plaintiff, and that he executed the lease under threat of plaintiff to immediately rent the premises to another. The so-called rent laws of 1920 are not retrospective in operation and, therefore, do not apply to a lease executed prior to the time of their taking effect. APPEAL by the defendant, Maurice Bandler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of February, 1921, granting plaintiff's motion for judgment on the pleadings consisting of a complaint and answer. I. T. Flatto [Alanson T. Briggs with him on the brief], for the appellant. Lewis M. Isaacs of counsel [M. S. & I. S. Isaacs, attorneys], for the respondent. Henry F. Wolff of counsel [Isidor Lazarus with him on the brief; Ivins, Wolff & Hoguet, attorneys], amicus curiæ, in behalf of the mayor's committee on rent profiteering. GREENBAUM, J.: The complaint alleges that on March 26, 1920, the defendant entered into an agreement of lease with the plaintiff in the terms of renewal of a lease under which defendant was then in possession of an apartment at 1155 Park avenue, New York city, for a three-year term commencing October 1, 1920, at an annual rental of $5,750 and that the rent for the first three months of this term and electric charges had not been paid by the defendant, amounting to $1,461.45, for which sum judgment is asked. The answer, after alleging certain denials which are unimportant here, sets up as a separate and distinct defense that the alleged lease was signed by the defendant under pressure and duress; that at the time of making the lease he occupied the premises under a lease expiring September 30, 1920, at an annual rental of $2,400; that on March 26, 1920, plaintiff refused to renew the lease for a new term at a reasonable |