According to the agreement, as alleged in the complaint, the transaction involved the holding of moneys delivered to defendant by plaintiffs as their agent subject to designated conditions and the disbursement of such moneys in accordance with explicit directions. It is for defendant's violation of that agreement and for his disobedience of their *Page 277 instructions that plaintiffs seek damages. (See Heinemann v.Heard, 50 N.Y. 27, 35; Gravenhorst v. Turner, 215 App. Div. 617. ) Defendant's promise — being collateral to and independent of any agreement involving the sale or transfer of an interest in land — is beyond the reach of the Statute of Frauds pleaded by defendant (Real Property Law, §§ 242, 259) and may be established and enforced even though oral. (Cf. Altman v. Brown, Wheelock,Harris Co., 280 N.Y. 535; Reeve v. Cromwell, 227 App. Div. 32; Conklin v. Kruger, 79 N.J.L. 326; Restatement, Contracts, § 194, subd. [2]; 2 Williston on Contracts [Rev. ed.], § 489, p. 1407; 2 Page, Law of Contracts [2d ed.], § 1277 et seq.; § 1287.)
The misstatement in the notice of appeal that the appeal is taken from the order rather than the judgment of the Appellate Division affects no substantial right and is disregarded "as immaterial". (See Rosenberg v. General Realty Service, Inc.,259 N.Y. 123, 125; Matter of Westberg, 279 N.Y. 316, 321-322.)
The judgment of the Appellate Division should be reversed and the order of Special Term affirmed, with costs in this court and in the Appellate Division.
LOUGHRAN, Ch. J., LEWIS, DESMOND, THACHER, DYE and FULD, JJ., concur in Per Curiam opinion; CONWAY, J., dissents upon the ground that the agreement alleged involved the sale of an interest in real property and thus was required to be in writing. (Real Property Law, §§ 242, 259; Sleeth v. Sampson, 237 N.Y. 69,72.)
Judgment accordingly. *Page 278