Sec. 26. Classification Of Agreements Not To Be Performed Within A Year

(a) Where No Time is Fixed.

Where no time is fixed, either party may terminate the relation at any time, and as the law is that "if the agreement may, consistently with its terms, be entirely performed within the year, although it may not be probable or expected that it will be performed within that time, it is not within the condemnation of the statute," there need therefore be no writing.23

Everitt v. N. Y. Eng. Co.. 14 Misc. 580 (N. Y. 1895) ; 20 Misc. 548 (N. Y. 1897); Jagau v. Goetz, 11 Misc. 380 (N. Y. 1895). See also Warren v. Holbrook, 118 N. Y. 593 (1889).

(b) Agreements for More than a Year.

The statute provides that every agreement, promise or undertaking is void, unless in writing, if by its terms it is not to be performed within one year from the making thereof.24 Under the New York statute, the agreement, or note or memorandum thereof, must be subscribed "by the party to be charged therewith, or by his lawful agent." 25

(c) Agreements for More than a Year, but Terminable upon Some Contingency.

Where the agreement is to continue for more than a year from the time it is made, but it is also agreed that either party may terminate it within the year, or where the agreement is to continue for more than a year or until the happening of an event which may transpire before the end of the year, it need not be in writing.26

In Eiseman v. Schneider, 60 N. J. L. 292, 293 (1897), it was said: "As early as the case of Peter v. Compton, Skin. 353, the great majority of the judges declared that 'where the agreement was to be performed upon a contingent, and it does not appear within the agreement that it is to be performed after the year, there a note in writing is not necessary, for the contingent might happen within a year; but where it appears by the whole tenor of the agreement that it is to be performed after a year, there a note is necessary; otherwise, not.'

"This has been the generally accepted rule since that case was decided.

"Parol agreements to do something for an indefinite period which may be terminated within a year are valid.

"To be within the statute, it must be such an agree-ment as does not admit of performance, according to its language and intention, within a year from the time it is made.

24 N. Y. Cons. Laws, Ch. 41, Sec.31 (L. 1909, Ch. 45), formerly Sec.21 Personal Prop. Law.

25 N. Y. Cons. Laws, Ch. 41, Sec. 31.

26 Blake v. Volgt, 134 N. Y. 69 (1892).

"The following contracts by parol have been held to be enforceable and not within the statute of frauds:

"'To pay upon the death of a third person.

" To pay upon the termination of a suit.

"To pay on the day of the promisor's marriage, which was the case in Skinner.

" To marry upon restoration to health. " To pay out of one's estate after death. " To pay during life of promisee. To pay during coverture."27

7 Citing King's Executors v. Hanna. 9 B. Mon. 369; Sword v. Keith, 31 Mich. 247; McConahey v. Griffey, 82 Iowa 564; Hutchinson v. Hutchinson, 46 Me. 154; Blanch-and v. Weeks, 34 Vt. 589; Burney Adr. v. Ball, 24 Ga. 505; Houghton v. Houghton. 14 Ind. 505; Blake v. Votgt, 134 N. T. 69; Bull v. McCrea, 8 B. Mon. 422; Browne on Frauds (5th Ed.). Sec.272, 276, and cases cited; Peter v. Compton, 1 Smith Lead. Cas. 143; Howard's Adtr. v. Burgen, 4 Dana (Ky.) 137.