#### Thomas A. McCammon, Respondent, *v.*Jacob Kaiser, Appellant.

First Department,

July 10, 1913.

Pleading — complaint in action to recover money for release of contract respecting realty—failure to state cause of action—amendment — Statute of Frauds — oral contract affecting realty.

A complaint in an action at law, which alleges in substance that the plaintiff and his assignors, having agreed to advance money to the defendant to enable him to purchase land and convey to the plaintiff and his assignors, the defendant thereafter agreed to repay a sum greater than that advanced if the plaintiff and his assignors would release him from the contract aforesaid and allow him to become sole owner of the land, fails to state a cause of action. This, because there is no allegation that the plaintiff or his associates agreed to transfer their interest in the lands, or release the defendant, or had ever tendered a release, there being merely an allegation of an executory promise without consideration.

The defect in said complaint is not cured by an amendment alleging that plaintiff offers at trial to deliver a full release of all claims to the defendant, as no legal action at the time the action was commenced is stated by such amendment.

Moreover, as the oral agreement to release the defendant and to allow him to become the sole owner concerns an interest in real property, it is unenforcible.

Dowling, J., dissented.

Appeal by the defendant, Jacob Kaiser, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of March, 1913, upon the verdict of a jury rendered by direction of the court, and also .from an order entered in said clerk’s office on the 1st day of March, 1913, denying the defendant’s motion for a new trial made upon the minutes.

*James P.*Collins, for the appellant.

*Thomas*O’*Callaghan,*for the respondent.

Ingraham, P. J.:

This action is at law, and the recovery is based upon an agreement between plaintiff and his assignors on the one part and the defendant on the other by which, as the complaint alleges, *520“ the said defendant agreed to and with this plaintiff, George E. Stainton, Eohert Matherson and Annie E. Stainton, that if they would release the said defendant from, said contract aforesaid, and permit and allow him to become the sole owner of the said lots aforesaid, free and clear from any claim or demand whatsoever by the said plaintiff” and his associates, the defendant would pay and allow to them $2,285.88, which said sum the defendant agreed to pay. There is no allegation in the complaint that the plaintiff or his associates agreed to transfer their interest in the lots or release the defendant from the contract, or had ever tendered a conveyance or release. There is simply an allegation of an executory promise without consideration, and without even an allegation of an offer to perform. This is evidently insufficient to sustain a cause of action. At the opening of the trial defendant moved to dismiss the complaint, and the court said he would entertain a motion to amend the complaint. Whereupon the plaintiff asked to amend the complaint by inserting an allegation that plaintiff offers to deliver to the defendant a full and complete release of all claims to said contract of purchase of said lots upon payment of $2,285.88,. with interest. Over objection and exception of defendant this amendment was allowed, but still no cause of action was alleged. The action was at law to recover a sum of money, and a tender of performance at the trial, if an enforcible contract had been alleged, would not have given plaintiff a cause of action when the action was pommenced. But as I look at it there was no enforcible contract alleged. The court reserved decision on the motion to dismiss, to which the defendant excepted.

The plaintiff then offered evidence to show that the defendant came to him and his associates and suggested that they take an option on some lots in Brooklyn; that plaintiff and his associates agreed and paid defendant various sums of money; that subsequently defendant said to the plaintiff that they ought to build on the lots, and that plaintiff said that they had no money, when defendant said: “ If you cannot build I will take them off your hands, and for every dollar that you have paid in I will pay you a dollar and a half; ” and that plaintiff and his associates agreed to take this ; that subsequently plain*521tiff asked defendant to repay him the money that he had paid, and that defendant promised that as soon as he got money he would pay the money back; that he would pay it back in February, 1911; and that the total payment to defendant was $1,483.92.

No release was tendered to defendant. The plaintiff offered in evidence two receipts signed by defendant, one dated December 10, 1909, and one January 11, 1910, wherein he admits the receipt of $425 from each of the parties, and in the first receipt he states that as soon as the contract for the purchase of the lots has been completed he will make an agreement showing that plaintiff and his associates, the defendant and Abramowitz and Baird should be the owners of the lots share and share alike; and in the second receipt defendant agrees that when he takes the deed of said property he will make either a contract of sale or a deed of tenancy in common as plaintiff desires showing their interest in and title to said property.

If these instruments gave to plaintiff and his associates any interest in the property purchased, it was an interest in real property, and they could have maintained an action to compel defendant to specifically perform his contract. If defendant had repudiated the contract plaintiff could have maintained an action to recover back the money paid to defendant, as money had and received, but it does not appear that defendant has ever repudiated his obligation. If plaintiff acquired an interest in real property, a verbal contract to sell it was not enforcible and I cannot see upon what principle plaintiff is entitled to a verdict for the amount that defendant agreed to pay by the verbal promise upon which the action was brought. *(Cagger*v. *Lansing,*43 N. Y. 550; *Pounds*v. *Egbert,*117 App. Div. 756.)

The plaintiff may have an action for a specific performance of his contract to convey, an action for the dissolution of a copartnership, or an action for money had and received. But he certainly cannot maintain an action for the money to be paid under the contract alleged in the complaint as the consideration for the conveyance or release of his interest in the real property therein described.

I think, therefore, that the judgment should be reversed, *522with costs to defendant, and as the complaint sets up no cause of action, that it should he dismissed, with costs.

Laughlin, Scott and Hotchkiss, JJ., concurred; Dowling, J., dissented.

Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.