Oliver H. Day, Respondent, v. The New York Central Railroad Company, Appellant

Oliver H. Day, Respondent, v. The New York Central Railroad Company, Appellant. (Argued April 27, 1882, decided May 30, 1882.) Plaintiff conveyed to defendant certain premises under a parol agreement that the latter should deliver to the former, for temporary keeping, all the stock transported on its road eastward from the Niagara river. Defendant, after performing its agreement for a little more than a year, repudiated it. On a former appeal (51 N. Y. 583), it was held that as the agreement on the part of defendant was not to be performed within a year, it was void under the statute of frauds, but that plaintiff was entitled to recover the value of the land, less the value of the partial performance. The questions presented on this appeal were principally as to the sufficiency of proof under the rule so declared. The court held that plaintiff made out a case within the law as laid down. E O. Sprague for appellant. T. E. Ellsworth for respondent. [MAJORITY — Miller, J.,] Miller, J., reads for affirmance. All concur, except Tracy, J., absent. Judgment affirmed.