This action is brought by a four-year-old girl through her unwed mother as guardian ad litem against the administrators d. b. n. of the estate of her father, to obtain a judgment presently anticipating in a lump sum the installments which it is alleged in the complaint that he promised to pay during the next sixteen years for the child’s maintenance and education. The testimony of the infant’s mother and grandmother is that the father preferred not to have her adopted out, as the grandmother wanted, but asked that she be brought up by the grandmother in Augusta, Georgia, and promised to pay to the grandmother $60 per month plus other necessary expenses for this purpose. The grandmother’s and the mother’s testimony is that the father said that he would continue to make these payments until the infant plaintiff became twenty-one years old. Objections were overruled that these witnesses were incompetent under section 347 of the Civil Practice Act. The Trial Justice submitted to the jury whether such an agreement was, in fact, made and, if so, the jury were told to approximate what the recovery should be. They were instructed that $11,480 would be the aggregate of $60 a month for sixteen years from the father’s death until plaintiff would be twenty-one. The charge stated: “ Your verdict is to determine once and for all time what sum the plaintiff ever will receive on account of that promise. So consider all the evidence and weigh the chances of life and death according to the evidence and your experience with life and fix such sum as represents the present value of such sum as is a fair and just approximation of the total sum payable under the terms of Mr. Duncan’s promise, and return a verdict for the plaintiff for that sum, if you have first found that the promise was in fact made. ’ ’ The jury rendered a verdict for $18,000.
*285Although the ultimate effect of such an agreement would be to lift from the mother the financial burden of the child’s support, her testimony has been held to be admissible in Connelly v. O’Connor (117 N. Y. 91) for the reason that the “ interest ” which renders a witness incompetent under section 347 is only such as results from the “ direct legal operation of the judgment ” (Hobart v. Hobart, 62 N. Y. 80, 81, 83). The opinion in Connelly v. O’Connor (supra, p. 94) states: “ We think the interest of the witness in the event of the action was, if any, ‘ remote, contingent and uncertain,’ and was an interest in the question as distinguished from an interest in the event.” That was spoken concerning the testimony of a witness similarly situated to the mother in this case. For this reason, although it should be explained to the jury that they may consider the effect of the outcome of the action upon the mother in relation to her credibility, we consider that her testimony was correctly admitted.
The grandmother was an incompetent witness inasmuch as the testimony is that she was the person with whom the decedent is claimed to have contracted and through whom the infant plaintiff derives her interest. It has been held that this result is not changed by the circumstance that the action is brought by the infant whose sole interest is derived from and through the promisee (Rosseau v. Rouss, 180 N. Y. 116). To this extent, the holding in Rosseau v. Rouss has been supported in Matter of Browning (280 N. Y. 584) and Croker v. New York Trust Co. (245 N. Y. 17). In Matter of Browning (supra), we held that the Surrogate properly excluded testimony of this nature concerning alleged agreements to support an infant, holding, in effect, that Rosseau v. Rouss (180 N. Y. 116, supra) was not implicitly overruled by Ward v. New York Life Ins. Co. (225 N. Y. 314), the latter case having been decided on the peculiar facts there presented. The grandmother is the person “ from, through or under whom ’ ’ the infant plaintiff" derives his interest or title by assignment or otherwise ”, as stated in section 347. Due to the admission of the grandmother’s testimony concerning the making of this agreement, a new trial must be granted.
Inasmuch as no question has been raised concerning the measure of damage and the manner of payment thereof, we do *286not pass upon it at tMs time (cf. Kelly v. Security Mut. Life Ins. Co., 186 N. Y. 16; Indian Riv. Islands Corp. v. Manufacturers Trust Co., 253 App. Div. 549; Sulyok v. Penzintezeti Kospont Budapest, 279 App. Div. 528, 536, mod. upon another point, 304 N. Y. 704).
Defendants-appellants have pleaded that this alleged oral agreement is void under that portion of subdivision 1 of section 31 of the Personal Property Law which invalidates contracts that are not to be performed within one year. A promise to support a child during minority is not voided upon the ground that it is incapable of performance within a year, inasmuch as the object is support of the child as long as this is required during infancy. If the child were to die, the agreement would be fully performed^ since the purpose is to furnish necessaries to the child, not to purchase services or to accomplish some other objective throughout a term of years. As is said in Corbin on Contracts (Yol. 2, § 446, pp. 548-549): “The death of the child would attain the object of the contract in so far as it is possible of attainment.” Consequently it has been held that the possibility of death of the infant within a year takes such a promise outside of the portion of the Statute of Frauds voiding contracts not to be performed within a year (Kent v. Kent, 62 N. Y. 560, 564; McKinney v. McCloskey, 8 Daly 368, affd. 76 N. Y. 594; Burger v. Neumann, 300 N. Y. 495; see Blake v. Voigt, 134 N. Y. 69).
This distinguishes a contract to maintain a child until he becomes of age from a contract of employment for a term of years, where the object is not to supply the wants of a minor while they exist but to obtain the services of the employee for a term of years. The latter type of contract and related agreements are held to fall within the Statute of Frauds (Cohen v. Bartgis Bros. Co., 264 App. Div. 260, affd. 289 N. Y. 846; Martocci v. Greater New York Brewery, 301 N. Y. 57; Wahl v. Barnum, 116 N. Y. 87, 97; Sack v. Beasley, 282 App. Div. 153; Shapiro v. Balaban, 210 App. Div. 47; McGirr v. Campbell, 71 App. Div. 83; 2 Williston on Contracts [rev. ed.], § 496).
The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.