This judgment should be affirmed. There was no consideration for the agreement to pay the additional $10,000 at the expiration of the term of sel1 vice, the promisee being already bound by the written contract to serve for the time and the yearly salaries therein fixed (Tolhurst v. Powers, 133 N. Y. 460; Arend v. Smith, 151 id. 502).
There is no room for the claim that the doubtful meaning of the contract (if it were doubtful) in respect of the amount of the salaries to be paid (“ not less than,” being the phrase) furnished a . consideration for the new agreement as a settlement of a dispute. It suffices that it was made on no such basis. On the contrary, the employe claimed no right to an increase of salary, and assured, the defendant’s president in advance that he did not intend to quit service under the contract; To keep him froga quitting unless his salary were raised was therefore not the consideration for the new agreement*, '
The new agreement being oral was also void under the statute of frauds, for that it was not by its terms to be performed within one year from the making thereof. It was made in June, 1904, and was not to be performed until October 20th, T905. If it could be said that the employe performed under it, it would be void just the same. If he would have any right of action it would not be on the void agreement, but on a qucmtum meruit (Erben v. Lorillard, 19 N. Y. 299). The statute of frauds creates a rule of evidence, and he could not prove the new agreement at all for lack of writings. Cases where the contract was carried out by both sides, like Kramer v. Kramer (90 App. Div. 176), have no application here.
*856That the - terms of the written contract are that the plaintiff’s assignor was to be paid “ not less than ” the salaries specified in such contract, presents no different case. Those were the salaries to be paid unless the parties agreed upon larger ones, and such .new agreement would still have tó be a valid one under the statute of frauds.
The judgment should be affirmed.
Present—Hirsohberg, P. .J., Woodward, Gat nor, Rich and Miller, JJ. '
Judgment unanimously affirmed, with costs.