Plaintiff seeks to enforce a lease for a period greater than one year. The. sole question upon this appeal is whether the lessee may assert as a defense that neither the lease nor any memorandum thereof was “ subscribed by the lessor * * * or by his lawfully authorized agent.” (Real Prop. Law, § 259.) It may be conceded that there are dicta to the effect that this statute was enacted for the benefit of the lessor and may not be availed of by the lessee. But there are no holdings to that effect. Brune v. Vom Lehn (112 Misc. 342; affd., 196 App. Div. 907) discusses the question, but explicitly states in the opinion that “ the modified lease in question was signed by the lessor.” In Quinto v. Alexander (123 App. Div. 1) the decision turned entirely upon the right of a vendee to recover earnest money upon the ground that the contract was not enforcible under the Statute of Frauds because not signed by him. The case was decided upon the principle that “ even if the contract be oral, the vendee has to carry it out or forfeit the amount which he has paid, on a tender of performance by the vendor.” (See, also, Keystone Hardware Corp. v. Tague, 246 N. Y. 79.) In Pelletreau v. Brennan (113 App. Div. 806) the contract was in fact signed by the vendors and the sole question was whether it was sufficiently definite to constitute an enforcible obligation and to comply with the requirements of the Statute of Frauds. Isolated expressions in Ford Motor Co. v. Hotel Woodward Co. (271 Fed. 625) and Roskam-Scott Co. v. Thomas (175 App. Div. 84) also fall far short of a holding that the statute is not to be literally interpreted.
The dicta of these cases must yield to the decisions which hold squarely that the statute must be literally followed. (Coles v. Bowne, 10 Paige, 526; Champlin v. Parish, 11 id. 405; Reynolds v. Dunkirk & State Line R. R. Co., 17 Barb. 613; Cagger v. Lansing, 43 N. Y. 550; Laughran v. Smith, 75 id. 205, 208; Westwitt Realty Corp. v. Burger, 212 App. Div. 622, 624.) In Champlin v. Parish (11 Paige, 405, 410), an action by the vendors to compel specific performance . by the purchaser, Chancellor Walworth said: “ * * * a contract for the sale of lands is not binding upon either party, unless the agreement is in writing, and is subscribed by the party by whom such sale is to be made * * * it is not sufficient to charge the vendee, upon such a contract, that the agreement is duly subscribed by him.”
Under these authorities the lessee may properly assert as a defense that neither lease nor memorandum was subscribed by the lessor or by his agent.
For this reason the order granting the motion to strike out the separate defense should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Martin and O’Malley, JJ., concur; Dowling, P. J., and Merrell, J., dissent.