#### Arthur C. Skinner, Respondent, *v.*E. Vail Watson, Appellant.

Second Department,

November 28, 1913.

Statute of Frauds — action for breach of oral contract for sale of goods over fifty dollars in value — proof of performance by vendor — remedies of vendee.

Where a complaint alleges the breach of an oral executory contract for the sale of personal property over fifty dollars in value, which contract is void under the Statute of Frauds, the vendee cannot recover upon proof that the contract has been performed.

*It seems,*that having offered evidence that he had been put into possession of the goods, his remedy, if his possession has been interfered with, is not an action for damages for breach of contract, but in replevin, or conversion.

Appeal by the defendant, E. Vail Watson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 10th day of April, 1912, upon the verdict of a jury, and also (as stated in the notice of appeal) from an order denying defendant’s motion for a new trial made upon the minutes.

*Schlosser & Donnelly,*for the appellant.

*Alice M. Crosby [George Wood*with her on the brief], for the respondent.

Burr, J.:

This action was brought for the specific performance of an alleged agreement to sell the stock in trade, appurtenances and *360good will of an automobile garage business carried on by the defendant, or, in lieu thereof, for damages for breach of such contract.

Without objection, the action seems to have been treated by the parties as an action for damages for breach of such contract, and was brought to trial before the court and a jury.

Among other defenses was that the alleged agreement was one for the sale and purchase of personal property of the value of fifty dollars and more, and that neither the said contract nor any note or memorandum thereof was in writing, and that the "same was void under the statute relating to the sale of personal property. (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 31, subd. 6; Id. § 85, added by Laws of 1911, chap. 571.)

Upon the trial it appeared affirmatively by plaintiff’s "evidence that whatever agreement there was upon the subject was an oral one, and at the close of the plaintiff is case a motion to dismiss was made upon the grounds, among others, that there was no enforcible contract, which motion was renewed at the close of the entire case. The jury rendered a verdict for the plaintiff for a sum representing the value of the loss of the contract.

This Verdict and the judgment entered thereon cannot be sustained.

There was evidence offered on the part of the plaintiff of performance of the contract by putting him in possession of the property which was the subject matter thereof.

If we concede for the sake of the argument that such evidence was sufficient, plaintiff could not recover in this action. If such possession was interfered with, his remedy was not an action for damages for breach of a contract, but one either in replevin or conversion. Upon the pleadings plaintiff has recovered a judgment for breach of an executory contract, void under the Statute of Frauds, upon. evidence that the contract has been fully performed.

The notice of appeal specifies that the appeal is taken not only from the judgment, but also from an order denying a motion for a new trial. It does not appear from the record that any such motion was made, but the error referred to is *361sufficiently presented by the motions to dismiss the complaint upon the grounds specified.

The judgment appealed from should be reversed and, as upon the present pleadings the action cannot be maintained, the complaint should be dismissed, with costs of this action and of the appeal.

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

Judgment reversed and complaint dismissed, with costs of this action and of the appeal to the defendant.