Decree affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

STATUTE OF FRAUDS. ITATION.

N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

Charles C. Blair et al., respts., v. Patrick Lynch, applt.

Decided Jan., 1885.

An agreement by which one party agrees, at the request of the other, to purchase personal property, hold it and upon being reimbursed and paid for his trouble transfer it to the other, is not a sale nor an agreement to sell the property between the par

ties and is not within the statute of frauds.

Defendant paid to plaintiffs half the price agreed upon November 25, 1873, and took an assignment of half the security. In an action brought November 21, 1879, to recover the balance, Held, that the statute

of limitations was not a bar.

Appeal from judgment entered upon verdict directed by the court in favor of plaintiffs.

Defendant, as administrator, sold and assigned a bond and mortgage for $6,000 belonging to the estate to one L., who thereafter assigned it to J. F. and A. W., to secure a loan of $2,000. On July 19, 1873, plaintiffs loaned L. $3,500 from which the W. loan was paid, and the bond and mortgage was assigned to plaintiffs as security for their loan. The loan not being paid, plaintiffs on Oct. 6, 1873, sued L., who interposed an answer setting up usury and other defenses. While that suit was pending and on November 25, 1873, defendant paid to plaintiffs $1,800, and took an

gage.

This action was brought November 21, 1879, to recover $3,600, less $1,800 and $446.97. Plaintiffs alleged and testified that they purchased the bond and mortgage at the special instance and request of defendant, he agreeing to pay them $3,500, the amount loaned thereon, and $100 for their services. They also testified that the judgment against L. was recovered and supplementary proceedings were instituted thereon at the request of the defendant in this action.

Defendant offered no evidence, but moved that the action be dismissed and that a verdict be directed in his favor on the ground that the statute of limitation was a bar and that the agreement was void by the statute of frauds. The court directed a verdict for plaintiffs.

Hiscock, Gifford & Doheny, for applt.

Sedgwick, Ames & King, for respts.

Held, No error; that the transaction did not amount to a sale or an agreement to sell the bond and mortgage from plaintiffs to

defendant, and therefore was not within the statute of frauds. The result of plaintiffs' evidence is that they acquired the bond and mortgage for defendant, who was all the while the equitable owner, and was entitled to the legal title upon paying $3,600, the price agreed upon.

That the assignment of Nov. 25, 1873, was not only not inconsistent with plaintiffs' claim, but entirely consistent with it. At this date an action was pending against L. for the recovery of this money, to which an answer had been interposed setting up various defenses. Unless there was some previous arrangement between the parties it is difficult to see why defendant should have stepped in at this critical juncture and paid $1,800 on account of this transaction. If any explanation exists, defendant should have given it. Plaintiffs testify that they were to

have $100 for their services, which added to $3,500 makes $3,600, of which $1,800 is half, and the payment of which sum entitled defendant to the legal title to onehalf of the bond and mortgage, which is precisely what he got under the written assignment.

That the parol evidence of the collateral agreement at the time of the assignment was not improperly received. 18 Hun, 458; 83 N. Y., 610, and cases cited.

Such being the transaction it is very clear that the statute has not applied as a bar. Six years had not elapsed between the date of the payment of the $1,800 and the commencement of this action, and between those dates $446.97 had been collected from L. and applied on the claim pursuant to the request of defendant.

Judgment affirmed, with costs. Opinion by Follett, J.; Hardin, P. J., and Boardman, J., concur.