The plaintiff conveyed to the defendant Winne certain real estate in New Jersey. It was part of the contract for the payment of the consideration that Winne should assign a second mortgage of $3,500 on real property on Thirty-Ninth street, New York, the first mortgage being $21,000. It was found that there was a second mortgage of $5,000, and that the $3,500 mortgage was worth nothing. The defendant Winne agreed to substitute a first mortgage on her lands in Westchester county for $3,500, and this second mortgage was to be released. The defendant now refuses to comply. The statute of frauds does not cover the case. Mrs. Winne has received the consideration for her promise. If the contract was an executory one, no action would lie upon it; but it has been performed by one party, and it would be inequitable to refuse a specific performance when the vendee*563has transferred the property in question without consideration and fraudulently to evade her promise, and is worth nothing besides this land. Beardsley v. Duntley, 69 N. Y. 577; Newman v. Nellis, 97 N. Y. 285; Miller v. Ball, 64 N. Y. 286.
The judgment should be affirmed, with costs.