Storms v. Snyder — 10 Johns. 109

Majority

p. 109

Storms against Snyder.

ALBANY,

Jan. 1813.

Headnote

wheve a. fTremove^ds fence>50 as to open a cer« tain road to wldthTánd B. v™n¡scd therefor, 10 dollars and 50 cents; andan brought by A. monl^'before a justice, it was held, that ment did not tide^to land, nor was it v/ithjn the statute of frauds; and that the plaintiff was entitled to recover*

IN ERROR, on certiorari, from a justice’s court. Snyder sued Storms, before the justice, for work and labour, and opening a road from the defendant’s house, &c. The plaintiff, on the trial, , ,i, i. , _ \ , proved an agreement between him and the defendant) that the plaintiff should open the road, &c. to its original width, and that the defendant should pay the plaintiff 10 dollars and 50 cents. The plaintiff was to move his fence, and the defendant’s fence was , • , *»• to remain standing. -

The defendant moved for a nonsuit, on the ground that the title to land came in question; but the justice overruled the objection, and gave judgment for the plaintiff for 10 dollars and 50 cents.

The statute says that no justice shall have cognisance of any action, “ where the title to land shall in any wise

p. 110

come in question.” But here was no question about title, and the agreement had no reference to title. The statute of frauds also says, that “ no contract or sale of lands, or any interest in or concerning them,” shall be valid, unless in writing, &c. This was not an agreement concerning an interest in land, since no interest in land was to be conveyed. It was merely an agreement to remove a fence, and one promise was a consideration for the other.

Judgment affirmed.