Cullen, J.
This action was brought to compel the defendant to convey to the plaintiff a certain interest in real estate in Niagara county, or in default thereof to pay the plaintiff the sum of $5,000 in money in specific performance of an oral contract, by which the defendant agreed to compensate the plaintiff for certain services rendered by the latter. The answer of the defendant put in issue the-alleged contract and pleaded the Statute of Frauds. The court at Special Term found that the plaintiff rendered services to the defendant, who was the owner of the Brackett House in the city of Rochester, as a real estate agent in superintending extensive alterations and repairs in the building on said premises, and procuring tenants therefor and collecting the rents of the same; and that in consideration of said services already
rendered and the agreement of the plaintiff to continue the same, and to assist in endeavoring to find a purchaser for said property, the defendant agreed orally that “Whenever the said Brackett House property should be sold or disposed of, whether through the instrumentality of said Russell or otherwise, he would pay to the said plaintiff, Charles J. Russell, the sum of five thousand dollars ($5,000) in full payment for the services which had theretofore and which should thereafter be rendered by the said Russell in and concerning the said Brackett House property; and it was further agreed by the said Briggs that in case the consideration for the said Brackett House building, above the mortgage incumbrance, should be cash, then the said sum of five thousand dollars ($5,000) should be paid to the said Russell by the said Briggs in cash, but if the consideration therefor should be land, then the said Russell should be entitled therein at the same time to such a portion thereof as five thousand dollars ($5,000) should bear to its value.” It was further found that the plaintiff performed the terms of the agreement on his part; that the defendant exchanged the Brackett House property for certain real estate in ¡Niagara county ; that the plaintiff demanded of defendant the payment of the sum of five thousand dollars ($5,000), or that he convey to him (plaintiff) an interest in the land for which the Brackett House was exchanged equal in value to the sum of five thousand dollars ($5,000); and that the defendant refused to comply with said ■ demand. The court thereupon decreed that the defendant convey to the plaintiff one hundred and twenty-three undivided one-thousandth parts of the real estate obtained by the former in exchange for the Brackett House, the court having found that such interest was worth the sum of five thousand dollars ($5,000). The Appellate Division, for reasons to which it is unnecessary to refer, reduced the plaintiff’s interest to one thousand eleven-thousand-and-seventh parts and affirmed the decree below as modified.
The oifly question presented on this appeal is the objection of the appellant that the contract, so far as it provided for "a
transfer of land in payment of the plaintiffs services, was void under the Statute of Frauds, and that the performance by the plaintiff was insufficient to authorize the court to decree specific performance by the defendant under the exception of the statute that “ nothing in this title contained shall be construed to abridge the powers of courts of equity to compel the specific performance of agreements in cases of part .performance of such agreements.” (2 R. S. [1st ed.] p. 135, § 10.) It is true that this is a contract for the rendition of services, but it is clear that, so far as it has been enforced by the courts below, it is equally a contract for the sale of lands or an interest in lands. Every executory contract must have a consideration, and unless it is given in advance the consideration of such contracts is the reciprocal covenants of the parties. It makes no difference which covenant is first specified in the contract. An agreement to render services, and in consideration therefor to convey lands, is exactly the same agreement as one to sell lands and to pay therefor in services. Ho partnership between the parties was created, for the plaintiff was not to share in any profit or loss that might be incurred on the sale of the Brackett house property ; nor can the sale of that property be considered as creating a fund in which the plaintiff was entitled to share-He was not to receive any aliquot proportion of or interest in that which the defendant might realize on the disposition of the property, but the specific sum of five thousand dollars in money, if the property was sold for money, or in land, if the property was exchanged, which the complaint and findings allege that the defendant agreed to pay him. We are, therefore, relegated to the question as to the sufficiency of the plaintiff’s performance to bring the case within the exception of the statute quoted. Though this exception is broad in its terms, the class of cases in which a court of equity will decree the specific performance of a contract void by the Statute of Frauds, and the class in which it will refuse such relief, have long been settled by authority in this state and by the decisions in our sister states and in England. The general rule is that
“ The' payment of the consideration alone, in a case where its recovery in an action at law would fully indemnify the party paying, would not he a sufficient part performance ” within the statute.
(Miller
v.
Ball,
64 N. Y. 286. See
Odell
v.
Montross,
68 N. Y. 499;
Winchell
v.
Winchell,
100 N. Y. 159 :
Dunckel
v.
Dunckel,
141 N. Y. 427;
Cooley
v.
Lobdell,
153 N. Y. 596.) In some of these eases it was held that specific performance might he decreed, so it may be said that the assertion in those cases of this rule was merely dictum. Flot so, however, of the cases from the 68th N. Y. and 153d N. Y. respectively. In these cases the determination of the question discussed was necessary to the decisions rendered in the cases and those decisions proceeded on the rule declared. In the latter case Judge Vann wrote : “ The payment of the consideration alone is not enough, although learned judges differ as to the reason for the rule. * * * The more generally accepted, and, on the whole, more satisfactory reason, however, is that, as the purchase money can be recovered back in an action at law and the parties thus restored to their original position, the party paying is not injured, no fraud is perpetrated upon him by refusal to convey, and there is no occasion for a resort to equity. But, whatever may be the reason for the rule, as said by a recent author, ‘ by an unbroken current of authorities, running through many years, it is settled too firmly for question that payment, even to the whole amount of the purchase money, is not to be deemed such part performance as to justify a court of equity in enforcing the contract.’ (Browne on Statute of Frauds, § 461.)” “A verbal agreement for an exchange of lands, we have seen in a former chapter, was not binding, and the same is undoubtedly true when the price of the proposed conveyance is t>. consist of labor or services of any kind, or, generally, of whatever the law would regard as a good consideration. (Browne on Statute of Frauds, § 271.) ” In
Devinney
v.
Corey
(23 N. Y. S. R.
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Cullen, J.
This action was brought to compel the defendant to convey to the plaintiff a certain interest in real estate in Niagara county, or in default thereof to pay the plaintiff the sum of $5,000 in money in specific performance of an oral contract, by which the defendant agreed to compensate the plaintiff for certain services rendered by the latter. The answer of the defendant put in issue the-alleged contract and pleaded the Statute of Frauds. The court at Special Term found that the plaintiff rendered services to the defendant, who was the owner of the Brackett House in the city of Rochester, as a real estate agent in superintending extensive alterations and repairs in the building on said premises, and procuring tenants therefor and collecting the rents of the same; and that in consideration of said services already
rendered and the agreement of the plaintiff to continue the same, and to assist in endeavoring to find a purchaser for said property, the defendant agreed orally that “Whenever the said Brackett House property should be sold or disposed of, whether through the instrumentality of said Russell or otherwise, he would pay to the said plaintiff, Charles J. Russell, the sum of five thousand dollars ($5,000) in full payment for the services which had theretofore and which should thereafter be rendered by the said Russell in and concerning the said Brackett House property; and it was further agreed by the said Briggs that in case the consideration for the said Brackett House building, above the mortgage incumbrance, should be cash, then the said sum of five thousand dollars ($5,000) should be paid to the said Russell by the said Briggs in cash, but if the consideration therefor should be land, then the said Russell should be entitled therein at the same time to such a portion thereof as five thousand dollars ($5,000) should bear to its value.” It was further found that the plaintiff performed the terms of the agreement on his part; that the defendant exchanged the Brackett House property for certain real estate in ¡Niagara county ; that the plaintiff demanded of defendant the payment of the sum of five thousand dollars ($5,000), or that he convey to him (plaintiff) an interest in the land for which the Brackett House was exchanged equal in value to the sum of five thousand dollars ($5,000); and that the defendant refused to comply with said ■ demand. The court thereupon decreed that the defendant convey to the plaintiff one hundred and twenty-three undivided one-thousandth parts of the real estate obtained by the former in exchange for the Brackett House, the court having found that such interest was worth the sum of five thousand dollars ($5,000). The Appellate Division, for reasons to which it is unnecessary to refer, reduced the plaintiff’s interest to one thousand eleven-thousand-and-seventh parts and affirmed the decree below as modified.
The oifly question presented on this appeal is the objection of the appellant that the contract, so far as it provided for "a
transfer of land in payment of the plaintiffs services, was void under the Statute of Frauds, and that the performance by the plaintiff was insufficient to authorize the court to decree specific performance by the defendant under the exception of the statute that “ nothing in this title contained shall be construed to abridge the powers of courts of equity to compel the specific performance of agreements in cases of part .performance of such agreements.” (2 R. S. [1st ed.] p. 135, § 10.) It is true that this is a contract for the rendition of services, but it is clear that, so far as it has been enforced by the courts below, it is equally a contract for the sale of lands or an interest in lands. Every executory contract must have a consideration, and unless it is given in advance the consideration of such contracts is the reciprocal covenants of the parties. It makes no difference which covenant is first specified in the contract. An agreement to render services, and in consideration therefor to convey lands, is exactly the same agreement as one to sell lands and to pay therefor in services. Ho partnership between the parties was created, for the plaintiff was not to share in any profit or loss that might be incurred on the sale of the Brackett house property ; nor can the sale of that property be considered as creating a fund in which the plaintiff was entitled to share-He was not to receive any aliquot proportion of or interest in that which the defendant might realize on the disposition of the property, but the specific sum of five thousand dollars in money, if the property was sold for money, or in land, if the property was exchanged, which the complaint and findings allege that the defendant agreed to pay him. We are, therefore, relegated to the question as to the sufficiency of the plaintiff’s performance to bring the case within the exception of the statute quoted. Though this exception is broad in its terms, the class of cases in which a court of equity will decree the specific performance of a contract void by the Statute of Frauds, and the class in which it will refuse such relief, have long been settled by authority in this state and by the decisions in our sister states and in England. The general rule is that
“ The' payment of the consideration alone, in a case where its recovery in an action at law would fully indemnify the party paying, would not he a sufficient part performance ” within the statute.
(Miller
v.
Ball,
64 N. Y. 286. See
Odell
v.
Montross,
68 N. Y. 499;
Winchell
v.
Winchell,
100 N. Y. 159 :
Dunckel
v.
Dunckel,
141 N. Y. 427;
Cooley
v.
Lobdell,
153 N. Y. 596.) In some of these eases it was held that specific performance might he decreed, so it may be said that the assertion in those cases of this rule was merely dictum. Flot so, however, of the cases from the 68th N. Y. and 153d N. Y. respectively. In these cases the determination of the question discussed was necessary to the decisions rendered in the cases and those decisions proceeded on the rule declared. In the latter case Judge Vann wrote : “ The payment of the consideration alone is not enough, although learned judges differ as to the reason for the rule. * * * The more generally accepted, and, on the whole, more satisfactory reason, however, is that, as the purchase money can be recovered back in an action at law and the parties thus restored to their original position, the party paying is not injured, no fraud is perpetrated upon him by refusal to convey, and there is no occasion for a resort to equity. But, whatever may be the reason for the rule, as said by a recent author, ‘ by an unbroken current of authorities, running through many years, it is settled too firmly for question that payment, even to the whole amount of the purchase money, is not to be deemed such part performance as to justify a court of equity in enforcing the contract.’ (Browne on Statute of Frauds, § 461.)” “A verbal agreement for an exchange of lands, we have seen in a former chapter, was not binding, and the same is undoubtedly true when the price of the proposed conveyance is t>. consist of labor or services of any kind, or, generally, of whatever the law would regard as a good consideration. (Browne on Statute of Frauds, § 271.) ” In
Devinney
v.
Corey
(23 N. Y. S. R. 308), which was an action for specific performance of an oral agreement to convey land, the consideration of which was services rendered, a specific performance was denied. Judge
Dwight, writing for the General Term of the fifth department, said : “ Indeed, we think there has been no case in this state in which specific performance of such a contract has been decreed on the ground of part performance when entry into possession has not constituted a leading feature of the part performance relied upon.” This case was affirmed by the Second Division of this court without opinion in 127 N. Y. 655. . The result of our own research among the decided cases is the same as that reached by Judge Dwight. While there might arise a case in which the services were of so singular character and the relation of the parties so peculiar that an action at law for the value of the services would not compensate the party, no such case is now before us. There would seem no difficulty in the plaintiff establishing the value of the services and under the complaint herein recovering it in this action. In
Canda
v.
Totten
(157 N. Y. 281) this court made no innovatiori upon the law as it had previously obtained in this state. The decision was well within the adjudicated cases. It was not a case resting on payment of the consideration alone, but the plaintiff had paid taxes, insurance and interest on mortgages and had received the rents collected from the property. She was practically in possession through her tenants, and this performance of the agreement and acceptance thereof by the defendant was held to take the case out of the statute.
The judgment appealed from should be reversed and a new trial granted, costs to abide the final award of costs.