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L. 1909,ch. 45

Agreements in Writing, etc.

§ 31

material in reliance upon such promise, the promise, being founded upon a new consideration and beneficial to the promisor, is an original promise and therefore not required to be in writing. Raabe v. Squier, (1895) 148 N. Y. 81, 42 N. E. 516, reversing judgment 5 Misc. 220, 25 N. Y. S. 463. To the same effect see Trombley, etc., Co. v. Seligman, (1909) 133 App. Div. 525, 117 N. Y. S. 1063; Schild v. Monroe Eckenstein Brewing Co., (1905) 108 App. Div. 50, 95 N. Y. S. 493; Desmond v. Schenck, (1899) 36 App. Div. 317, 55 N. Y. S. 251; Merserean Co. v. Washburn, (1896) 6 App. Div. 404, 39 N. Y. S. 664; Kleinman v. Auerbach, (1913) 82 Misc. 436, 143 N. Y. S. 1033; Sinkovitz v. Applebann, (1907) 56 Misc. 527, 107 N. Y. S. 122; Schwoever v. Stone, (1909) 130 App. Div. 796, 15 N. Y. S. 440, affirmed (1911) 200 N. Y. 560, 93 N. E. 416; Block v. Galitzka, (1906) 114 App. Div. 799, 100 N. Y. S. 173; Reisler v. Silbermintz, (1904) 99 App. Div. 131, 90 N. Y. S. 967; Cox v. Halloran, (1903) 82 App. Div. 639, 81 N. Y. S. 803; Mannetti v. Doege, (1900) 48 App. Div. 567, 62 N. Y. S. 918; Almond v. Hart, (1899) 46 App. Div. 431, 61 N. Y. S. 849; Alley v. Turck, (1896) 8 App. Div. 50, 40 N. Y. S. 433; Breen v. Isaacs, (1905) 49 Misc. 127, 96 N. Y. S. 741; Flagler v. Lipman, (1893) 2 Misc. 417, 21 N. Y. S. 946; Bayles v. Wallace, (1890) 56 Hun 428, 10 N. Y. S. 191; Roussell v. Mathews, (1901) 62 App. Div. 1, 70 N. Y. S. 886, affirmed (1902) 171 N. Y. 634, 63 N. E. 1112; Mannetti v. Doege, (1900) 48 App. Div. 567, 62 N. Y. S. 918; Cooper, etc., Structural Iron Works v. Rosing, (1914) 85 Misc. 409, 147 N. Y. S. 241; Schnanfer V. Ahr, (1907) 33 Misc. 299, 103 N. Y. S. 195; Boeff v. Rosenthal, (1902) 38 Misc. 760, 78 N. Y. S. 108; Kelly v. Smith, (1897) 20 Misc. 639, 46 N. Y. S. 679; Schultz v. Cohen, (1895) 13 Misc. 638, 34 N. Y. S. 927; Snell v. Rogers, (1893) 70 Hun 462, 24 N. Y. S. 379; Parks v. Stafford, (1891) 61 Hun 623 mem., 16 N. Y. S. 756. It must appear, however, that the owner makes the obligation his own, and that the promise is not simply collateral to the obligation of the principal debtor. Brown v. Weber, (1868) 38 N. Y. 187,

affirming 24 How. Pr. 306; Snyder v. Monroe Eckstein: Brewing Co., (1905) 107 App. Div. 328, 95 N. Y. S. 144, affirmed (1907) 188 N. Y. 576, 80 N. E. 1120; Smith v. Burditt, (1905) 107 App. Div. 628, 95 N. Y. S. 188; Turenne v. Washburn, (1892) 65 Hun 619 mem., 19 N. Y. S. 753; Payne v. Baldwin, (1853) 14 Barb. 570; Ogden v. Sergeant, (1909) 119 N. Y. S. 672, affirmed 137 App. Div. 925, 122 N. Y. S. 1139; Dirringer v. Moynihan, (1890) 10 N. Y. S. 540; Windsor Constr. Co. v. Ruland, (1916) 173 App. Div. 94. See also Voska v. Ruland, (1916) 172 App. Div. 616, 158 N. Y. S. 780, which held, however, that an oral promise to pay moneys thereafter to be earned by the contractor, who had threatened to abandon the work if such promise was not made, was not within the statute and was enforceable against the promisor, being an independent promise founded upon a sufficient consideration. Where the promise to the materialman is made merely by the officers of a corporation which has an interest in the building, the promise is collateral to the principal obligation of the contractor and is within the statute. Roscoe Lumber Co. v. Reynolds, (1908) 124 App. Div. 539, 198 N. Y. S. 1018. And it has been held that the oral promise made to a materialman by a broker who is interested in the property on which a building is being constructed that if lumber is delivered to the owner of the premises the broker will see the materialman paid, is within the statute, where the lumber is delivered and charged to the owner. Halsted v. Pelletreau, (1905) 101 App. Div. 125, 91 N. Y. S. 927. See also in this connection Hudson Wrecking, etc., Co. v. Aldrich, (1916) 94 Misc. 250, 150 N. Y. S. 1046, affirmed 174 App. Div. 865, 159 N. Y. S. 1119.

Guaranty by subcontractor of performance by contractor.-A parol agreement by a subcontractor that if the owner of premises would engage a certain contractor to make the contemplated improvements upon the premises he would be responsible for the performance of the contract by such contractor, is void under the statute. Abham v. Boyd, (1877) 7 Daly 30,

§ 31

Agreements in Writing, etc.

L. 1909, ch. 45

Promise of wife to pay for necessaries.— It has been held that a promise by a wife to pay for necessaries furnished to her, for which her husband is primarily liable, made after the debt for the necessaries has been incurred, is a promise to pay the debt of another, and is within the statute. Speckmann v. Foote, (1912) 138 N. Y. S. 380.

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IV. PROMISE IN CONSIDERATION OF MARRIAGE General principles governing application of statute of frauds as applicable to contract in consideration of marriage: see Ann. Cas. 1913E 334 note.

Correspondence between parties as sufficient to show ante-nuptial contract. -An'ante-nuptial contract may be established by letters between the parties written before marriage. If the letters taken together show what the agreement was, the requirements of the statute are met, and it is not necessary that the whole agreement be embodied in one writing. Peck v. Vandemark, (1885) 99 N. Y. 29, 1 N. E. 41. But the correspondence must clearly establish the ante-nuptial contract in order to avoid the statute. Lamb v. Lamb, (1897) 18 App. Div. 250, 46 N. Y. S. 219. See also Carpenter v. Cornings, (1889) 51 Hun 638 mem., 4 N. Y. S. 947.

Enforcement of ante-nuptial agreement after marriage.—An oral ante nuptial agreement is void under the statute of frauds and the wife cannot, after the marriage, enforce specific performance on the ground that she hus performed her part of the agreement. Hunt v. Hunt, (1902) 171 N. Y. 396, 64 N. E. 159, 59 L. R. A. 306, affirming 55 App. Div. 430, 66 N. Y. S. 957; McCartney v. Titsworth, (1911) 142 App. Div. 292, 126 N. Y. S. 905; Brown v. Conger, (1876) 8 Hun 625. See also Schneider v. Schneider, (1907) 122 App. Div. 774, 107 N. Y. S. 792.

Foreign tacit ante-nuptial contracts.— The courts of this state will nut recognize foreign tacit ante-nuptial contracts. Matter of Majot, (1910) 199 N. Y. 29, 92 N. E. 402, 29 L. R. A. (N. S.) 780, affirming 135 App. Div. 409, 119 N. Y. S. 888.

Promissory note given in consideration of promise to marry.-A promissory note given in consideration of a promise to marry, which promise is afterwards performed, is not obnoxious to the statute of frauds. Wright v. Wright, (1873) 54 N. Y. 437. It has been held, however, that a promissory note given to a husband by his brother in order that he might deliver the same to his wife to secure domestic peace between the couple is not in law a good promise in consideration of marriage. Kramer v. Kramer, (1905) 181 N. Y. 477, 74 N. E. 474, reversing 90 App. Div. 176, 86 N. Y. S. 129.

Additional consideration in agreement to marry.- In Dygert v. Remerschnider, (1865) 32 N. Y. 629, affirming 39 Barb. 417, it appeared that an oral marriage agreement provided that the woman was to pay the existing debts of her intended husband and he to convey to her a certain piece of real estate; that the parties were duly married, and that the wife thereafter paid the debts as agreed upon. It was held that while she had no rights based solely upon the consideration of marriage, the agreement to pay off the debts of the husband was sufficient to uphold the contract, and a conveyance of the land made to her in pursuance thereof was upon a good and sufficient consideration, and could not be impeached by a subsequent creditor of the husband who obtained a judgment against him before the execution of the conveyance.

Ante-nuptial agreement by lunatic.-An oral ante-nuptial agreement made by a lunatic to support a stepdaughter is not binding either upon him or his estate. In re Willoughby, (1844) 11 Paige 257.

Contract performed.—Where an oral ante-nuptial contract has been fully carried out according to its terms it is an accomplished fact and the statute of frauds no longer affects the transaction. Miller v. Sire, (1915) 224 Fed. 424, 140 C. C. A. 118, L. R. A. 1916D 1211; Adams v. Swift, (1915) 169 App. Div. 802, 155 N. Y. S. 873.

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L. 1909, ch. 45

Agreements in Writing, etc.

§ 32

V. PROMISE TO PAY DEBT DISCHARGED IN BANKRUPTCY

Action upon discharged debt where new promise is made.- Where a debt has been discharged in bankruptcy, but a new promise is made by the debtor to pay the debt, the creditor may bring an action on the old debt and prove the new promise in avoidance of the discharge. Gruenberg v. Treanor, (1903) 40 Misc. 232, 81 N. Y. S. 675.

Partial payment of debt discharged in bankruptcy.--A partial payment on account of a debt which has been discharged in bankruptcy is not sufficient to renew the original indebtedness or create a new obligation on the part of the debtor to pay the balance due. Lawrence v. Harrington, (1890) 122 N. Y. 408, 25 N. E. 406; Meyer v. Bartels, (1907) 56 Misc. 621, 107 N. Y. S. 778; Wheeler v. Simmons, (1891) 60 Hun 404, 15 N. Y. S. 462.

Conflict of federal and state statutes.- While an oral promise, if definite and unambiguous, is sufficient under the Federal Bankruptcy Law to revive a debt which has been discharged in bankruptcy, the written promise requireDient of the local statute controls. Mandell v. Levy, (1905) 47 Misc. 147, 93 N. Y. S. 545, holding, however, that there must be a clear expression of intention on the part of the debtor to bind himself to the payment of the debt, and not merely the admission of a moral obligation. In support of the latter proposition see also Bair v. Hilbert, (1903) 84 App. Div. 621, 82 N. Y. S. 1010; Kiernan v. Fox, (1899) 43 App. Div. 58, 59 N. Y. S. 330; Scheper v. Briggs, (1898) 28 App. Div. 115, 50 N. Y. S. 869.

VI. AUCTION SALES

Sufficiency of memorandum.- Where an auction sale of a stock of goods extends over two days, and a general memorandum is entered in the auctioneer's sales book before the sale on the first day, giving the name of the person on whose account the sale is made, the nature of the property and terms of sale, which, as the sales are made, is followed by the names of the prirchasers and lots struck off to each, is sufficient to cover sales made on the sticond day, and need not be repeated in the sales book on the second day. Price v. Durin, (1868) 56 Barb. 647. And see generally Ann. Cas. 1912D 1069 note.

Time of making auctioneer's memorandum.— Where a sale is made at auction the memorandum of the contract of sale must be made by the auctioneer at the time and place of sale, or the contract cannot be enforced. Hicks v. Whitmore, (1834) 12 Wend. 548; Townsend v. Van Tassel, (1879) 8 Daly 261.

Auctioneer's memorandum as avoiding his guaranty.— The entry made by an auctioneer in his sales book for the purpose of obviating the statute of frauds, which entry contains a statement that the sale was made for another, does not render void a written contract on the part of the auctioneer to become personally responsible for the fulfillment of the contract of sale. Meyer v. Redmond, (1912) 205 N. Y. 478, 98 N. E. 906, 41 L. R. A. (N. S.) 675, affirming 141 App. Div. 123, 125 N. Y. S. 1052.

$ 32. Transfers and mortgages of interests in decedents' estates to be in writing, and recorded. Every conveyance, assignment, or other transfer of, and every mortgage or other charge upon the interest, or any part thereof, of any person in the estate of a decedent which is situated within this state, shall be in writing, and shall be acknowledged or proved in the manner required to

§ 33

Agreements in Writing, etc.

L. 1909, cha 45

entitle conveyances of real property to be recorded. Any such instrument may also be recorded as hereinafter provided; and if not so recorded, it is void against any subsequent purchaser or mortgagee of the same interest or any part thereof, in good faith and for a valuable consideration, whose conveyance or mortgage is first duly recorded. If such interest is entirely in the personal property of a decedent, the conveyance or mortgage shall be recorded in the office of the surrogate issuing letters testamentary or letters of administration upon the said decedent's estate, or if no such letters have been issued, then in the office of the surrogate having jurisdiction to issue the same. If such interest is in both the personal and the real property of a decedent, the conveyance or mortgage shall be recorded in the office of the said surrogate and also in the office of the county clerk. Such a conveyance or mortgage when so recorded, shall be indexed under the name of the decedent in a book to be kept for that purpose by each recording officer. The person presenting any such instrument for record shall pay to the clerk of the surrogate's court a fee of ten cents for each folio.

This section was derived from L. 1904, ch. 692, § 1, as amended by L. 1908, ch. 173.

Transfers and mortgages of interests in decedents'estates: see REAL PROPERTY LAW, § 274.

Notice to executors of assignment.— The only office of notice to executors of an assignment of interest in the estate is to guard against payment by the executors to the assignor, or others claiming under him, in ignorance of earlier rights. Leask v. Hoagland, (1909) 64 Misc. 156, 118 N. Y. S. 1035, reversed on other grounds 136 App. Div. 658, 121 N. Y. S. 197.

Burden of proof as to good faith of assignment.- Presumptively those claiming interests in the estates of deceased persons under recorded transfers are transferees in good faith as against transfers earlier in time but unrecorded, or of later record; and the burden is upon him who claims under an unrecorded transfer, or one of later record, in hostility to one recorded earlier, to show that the latter was taken with notice on the part of the transferee thereunder of the earlier assignment. Leask v. Hoagland, (1909) 64 Misc. 156, 118 N. Y. S. 1035, reversed on other grounds 136 App. Div. 658, 121 N. Y. S. 197.

Cited.— The statute embodying the present section was cited in Matter of Losee, (1907) 119 App. Div. 107, 94 N. Y. S. 1082, 104 N. Y. S. 1132, affirming 46 Misc. 363, 94 N. Y. S. 1082.

§ 33. Validity of certain agreements made without consideration. An agreement for the purchase, sale, transfer or delivery of a certificate or other evidence of debt, issued by the United States or by any state, or a municipal or other corporation, or of any share or interest in the stock of any bank corporation or joint

L. 1909, ch. 45

Agreements in Writing, etc.

§ 34

stock association, incorporated or organized under the laws of the United States or of any state, is not void or voidable, for want of · consideration, or because of the non-payment of consideration, or because the vendor, at the time of making such contract, is not the owner or possessor of the certificate or certificates or other evidence of debt, share or interest.

This section was derived from the Personal Property Law of 1897, § 22.

Stock-jobbing contracts under former statute.- Formerly stock-jobbing contracts were illegal. For construction of invalidating statute, see Staples v. Gould, (1854) 9 N. Y. 520, affirming 5 Sandf. 411; Washburn v. Franklin, (1858) 28 Barb. 27. Cited. — The statute embodying the present section

was cit

in Electric Fireproofing Co. v. Smith, (1906) 113 App. Div. 615, 99 N. Y. S. 37.

$ 34. Transfers in trust for the transferrer. A transfer of personal property, made in trust for the use of the person making it, is void as against the existing or subsequent creditors of such person.

This section was derived from the Personal Property Law of 1897, § 23.

Reservation of surplus upon assignment of chose in action as security, as u fraud upon other creditors: see 36 L. R. A. (N. S.) 370 note.

Effect of contemporaneous agreement to give debtor employment or retain him in a position, to render attempted preference invalid as to other creditors: see 17 L. R. A. (N. S.) 310 note.

Application of section.— The present section avoids only transfers which are wholly to the use of the grantor; it does not apply to transfers made for other objects, but containing a residuary interest or partial use for the transferor. Curtis v. Leavitt, (1857) 15 N. Y. 9, modifying decree 17 Barb. 309; Shoemaker v. Hastings, (1881) 61 How. Pr. 79. See also Rome Exch. Bank v. Eames, (1864) 4 Abb. App. Dec. 83.

Intent to defraud.— Under the present section of the statute a transfer of personal property in trust for the use of the person making the transfer is absolutely void as against creditors irrespective of any intent to defraud. Young v. Heermans, (1876) 66 N. Y. 374, modifying judgment 5 Hun 121; Case v. Phelps, (1868) 39 N. Y. 164; Bateman v. Hunt, (1905) 46 Misc. 346, 94 N. Y. S. 861; Cullin v. Ryder, (1904) 44 Misc. 485, 89 N. Y. S. 465, affirmed 111 App. Div. 911, 97 N. Y. S. 1134, affirmed (1907) 188 N. Y. 574, 80 N. E. 1107; Spies v. Boyd, (1852) 1 E. D. Smith 445; Scott v. Mead, (1889) 37 Fed. 865. See also Whittemore v. Equitable Trust Co., (1914) 162 App. Div. 607, 147 N. Y. S. 1058; Townsend v. Bumpus, (1898) 29 App. Div. 122, 51 N. Y. S. 513; Vilas Nat. Bank v. Newton, (1898) 25 App. Div. 62, 48 N. Y. S. 1009; Kain v. Larkin, (1896) 4 App. Div. 209, 38 N. Y. S. 546; National Bank of Republic v. Thurber, (1902) 39 Misc. 13, 78 N. Y. S. 766.

Bill of sale for support of vendor.-A bill of sale given for the future support of the vendor is void as to his creditors. Cullin v. Ryder, (1904) 44 Misc. 485, 89 N. Y. S. 465, affirmed 111 App. Div. 911, 97 N. Y. S. 1131, affirmed (1907) 188 N. Y. 574, 80 N. E. 1107; McLean v. Button, (1854) 19 Barb. 450.

Preferential mortgage.-A mortgage which transfers all the property of the mortgagor to the mortgagee and provides that the latter is to use the avails of the same in paying the debts of the mortgagor therein specified and

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