(dissenting):
I cannot concur in the prevailing opinion that the agreement alleged in the complaint is too indefinite to be enforced in equity by specific performance. It is conceded that if the facts alleged can be proved, an action at law will lie to recover damages for the breach of the agreement to pay the $1,500 and the $500. But that is only a part of the agreement alleged. The remaining portion as alleged in the complaint is, “ that the said parties the plaintiff, Frank J. Brockie and said Alice L. Ankele, shall each have a one-third interest in said property, and that in the event of the death of either, the said plaintiff or Alice L. Ankele, deceased, the share of the one so dying shall go to the survivor, that is plaintiff or the decedent.” It is thought by the majority of my brethren that it is *691improbable that the plaintiff .would give an absolute deed to his wife in reliance upon this oral agreement, when he might have reserved to himself such rights in the property as he desired to retain. We are not weighing evidence or considering the possibility of plaintiff’s ability to prove the facts alleged. We are considering a demurrer to a defense of the Statute of Frauds, which has been overruled at Special Term, properly, if the defense alone is involved; but on the theory that a demurrer searches the record and reaches the first error in pleading, the sufficiency of the complaint is challenged. We must, then, consider that all the facts stated are true, and indulge every inference that can reasonably be drawn in favor of the plaintiff. It is not a question of whether he can prove the facts or of the improbability of his having done a thing that he has asserted he did do. We must accept the facts alleged as proved.
If the portion of the agreement relating to payment by Alice L. Ankele is sufficiently definite to support an action at law for the breach (and I agree with Mr. Justice Merrell that it is), the whole agreement is proper matter for enforcement in equity, as it relates to an interest in real property. That a contract calls for the creation of an interest in land has long been regarded as a demonstration that the remedy at law, which cannot compel specific performance, is inadequate. If any uncertainty exists by reason of the fact that the complaint does not name the person to whom the grantee was to pay the $1,500, it is removed by the recital in the will of Alice L. Ankele, a copy of which is annexed to the complaint and made a part thereof, of a debt of $1,500 due her husband, Robert Ankele (the plaintiff), in connection with the property in question, coupled with a mention of the $500 due the defendant Brockie. The liberal construction of the pleadings required by section 519 of the Code of Civil Procedure must be that the $1,500 was to be paid to the plaintiff.
An agreement that A will transfer land to B, and B will pay $1,500 to A and $500 to C, and A, B and C each will have a one-third interest in the land, the survivor of A and B to succeed to the share of the other, is not so indefinite or uncertain so as to be incapable of enforcement. The answer to the question defined by Mr. Justice Merrell depends *692not on the indefiniteness of the agreement, but on whether there has been sufficient part performance to take the case out of the Statute of Frauds. (See Real Prop. Law, §§ 242, 259.) The inquiry is not whether the agreement can be proved, but whether sufficient appears to require its enforcement in spite of the fact that it was not in writing.
Here we have an agreement, in reliance upon which the plaintiff conveyed the land to his wife, thus fully performing his part. By the agreement he was to get $1,500 and a two-thirds interest in case he survived his wife. Her will has attempted to disregard the agreement and give him only $1,500 and a one-fourth share of the net' income and of the proceeds of the property when it is sold.
Reference to the record on appeal in the case of Gallagher v. Gallagher (135 App. Div. 457; affd., 202 N. Y. 572), of which the prevailing opinion says: “It is apparent that in such case it was necessary for a court of equity to intervene in order to prevent a fraud,” reveals that the complaint contained only one allegation, the counterpart of which is not found in the complaint under discussion, namely, that subsequent to the deed the husband had paid all taxes and water rents, had collected the rents and appropriated them to his own use, and the wife had made no protest. Here, however, we have the allegation that the wife had repeatedly promised to live up to the terms of the agreement and the plaintiff relied on her promises. The fraud is just as apparent as in the Gallagher case.
The case of Gould v. Gould (51 Hun, 9), a decision of the General Term, in the Fifth Department, cited in the prevailing opinion, has been expressly disapproved of by the same General Term in the later case of Gage v. Gage (83 Hun, 362, 364).
McCartney v. Titsworth (119 App. Div. 547) was a three to two decision of the Appellate Division of the Fourth Department, which was never passed upon by the Court of Appeals. The action was against a fife tenant to restrain waste. He defended on the ground of an oral agreement of his wife, from whom he held the fife tenancy, to convey the land to him on request. The majority of the court considered only certain evidence and held it insufficient to show the defendant entitled to specific performance of any agreement that the farm should *693be deeded to him in consideration of his making certain improvements on it. The question was decided with relation to an agreement made after the property was conveyed to the wife. The minority of the court based their dissent on the proposition that the land was conveyed to the wife in performance of the agreement, and all the improvements were made in addition. The decision of the majority was based on a state of facts essentially different from the present case. The later case of Gallagher v. Gallagher (supra), which was affirmed by the Court of Appeals, should govern here, rather than McCartney v. Titsworth.
In Woolley v. Stewart (222 N. Y. 347) the Statute of Limitations furnished ample reason for the decision; in fact, Judge Cardozo concurred on this ground. The other remarks were not necessary to the conclusion reached.
Greenbaum, J., concurs.
Order modified by dismissing complaint unless plaintiff serve an amended complaint, leave for which is granted on payment of ten dollars costs, and as so modified affirmed, without costs.