Rubin v. Irving Trust Co.

Cohn, J.

(dissenting). The action is for specific performance of an oral agreement made by respondent and his brother, Harold Rubin, deceased, whereby the deceased promised not to change his will without respondent’s consent. The agreement was made in the State of Florida, and it is claimed that it was thereafter acted upon by respondent during the lifetime of the deceased.

In denying the motions for summary judgment it would appear that the Special Term correctly held that the validity of the agreement is governed by the law of the place where made, that is the State of Florida (United States Mtge. & Trust Co. v. Ruggles, 258 N. Y. 32, 38) where concededly it is enforcible (Exchange Nat. Bank of Tampa v. Bryan, 122 Fla. 479; Miller v. Carr, 137 Fla. 114; Farrington v. Richardson, 153 Fla. 907) and that the Statute of Frauds of this State does not declare an overriding public policy which precludes enforcement of this agreement. Moreover, issues of fact exist as to what the domicile of the deceased was when he made and breached the contract in suit and what it was at the time of his death; and as to whether respondent in offering to purchase decedent’s stock from the executor and accepting benefits under the will, was thus estopped from asserting any right inconsistent therewith.

In any event, under the circumstances of this case all questions arising including the one as to whether the law of the place of the mailing of the contract or the law of the place of its performance is to apply to the interpretation and validity thereof should be determined only after a full trial at which all relevant facts may be adduced.

The orders should be affirmed.

Peck, P. J., and Callahan, J., concur with Van Voorhis, J.; Cohn, J., dissents and votes to affirm in opinion in which Heeeernan, J., concurs.

Orders reversed, with one bill of $20 costs and disbursements to the appellants and the motions for summary judgment granted, and judgment is directed to be entered herein in favor of the defendants dismissing the complaint herein, with costs. Settle order on notice. [See post, p. 864.]