Silvernail v. Cole

12 Barb. 685, 1852 N.Y. App. Div. LEXIS 50

• Court: New York Supreme Court
• Decided: September 14, 1852
• Status: Published

Opinion

By the Court,

Shankland, J.

The legal proposition involved in the decision of this case is whether an executory promise to pay a sum of money to be recanted from a bargain which is void by the statute of frauds, is binding. The very statement of the case indicates the answer. It is not binding because there is no consideration to support it.

The contract for the sale of the timber growing on the defendant’s land, being by parol, was void. (1 Denio, 550. 5 Barb. 364.) Promising to pay money to be released from such a contract, is entirely without consideration, and the promise can not be enforced. For this reason the justice’s judgment was legally right. The case of North v. Forest, (15 Conn. R. 400,) is to the point.

[Cortland General Term, September 14, 1852.

Whether there was fraud in obtaining the note is not so clear, nor is it material to decide. The judgment of the county court must be reversed, and that of the justice affirmed.

Mason, ShanTcland, Gray and Crippen, Justices.]