(concurring). I concur for affirmance, but on somewhat different grounds than those stated by the court below.
I think the case differs from Frankenberger v. Schneller (258 N. Y. 270). In that case there was no direct proof of the offer; here there is direct proof. I think the contract Was in fine with the case of Hamer v. Sidway (124 N. Y. 538) where the uncle agreed with his nephew that if he would refrain from certain wordly practices until he became twenty-one years of age he would pay him $5,000. This was held enforcible. (See, also, L’Amoreaux v. Gould, 7 N. Y. 349; Miller v. McKenzie, 95 id. 575.)
I do not think the offer comes under the provisions of subdivision 1 of section 31 of the Personal Property Law, which requires to be in writing an agreement not to be performed within one year. This agreement might have been performed within a year, because the decedent might have died within that time. (Kent v. Kent, 62 N. Y. 560.)
I think, however, that subdivision 7 of section 31 is applicable. That subdivision requires to be in writing an agreement to bequeath property or make a testamentary provision.
Although the plaintiff performed his part of the agreement, this does not take the case out of the Statute of Frauds, but in such case he might have recovered upon an implied promise to pay under the rule of quantum meruit. (See Hubbard v. Hubbard, 151 App. Div. 174.) The complaint, however, is not framed on such theory. Here the plaintiff by his complaint seeks to recover on the contract itself.
For the reasons stated, I think the judgment should be affirmed.