Decision.—Judgment affirmed unanimously, on the argument.
Note.—Where a parol contract for the use of rooms and board was made in March for one year, to commence on the first day of May then succeeding; and about the first of August thereafter a settlement was made between the parties for the first quarter, by which it was agreed that on payment of a certain sum to cancel the debt for that quarter, and a promise by the defendant to go on and make payment as under the original agreement for the remaining three quarters of the year, it was held, that the original contract was “ not to be performed within one year from the making thereof,” and was consequently void. (2 R. S. 135, § 2.) That proof for the plaintiff on a claim for the three quarters of the year was inadmissible under the special count on the original contract; it was necessary there should be a count upon the special agreement made in August. The amended declaration containing such special count, the proof under it, on the second trial, was properly admitted, and the verdict for plaintiff sustained.
JYot reported.
(This term was held at the City Hall, in the City of JYew- York.)