Howell v. Howell

269 A.D. 1053, 58 N.Y.S.2d 907, 1945 N.Y. App. Div. LEXIS 5232

Opinion

In an action for specific performance of an alleged oral contract to convey real property, judgment for plaintiff affirmed, with costs. Ho opinion. Close, P. J., Carswell and Johnston, JJ., concur; Hagarty and Lewis, JJ., dissent and vote to reverse the judgment and to dismiss the complaint, with the following memorandum: The proof adduced on behalf of plaintiff does not show the making of any contract by Augustus J. Howell to convey title to the farm. (Shakespeare v. Markham, 72 N. Y. 400; Hamlin v. Stevens, 177 N. Y. 39; Braun v. Ochs, 77 App. Div. 20.) The proof consists, instead, primarily, of alleged statements on the part of Augustus J. Howell that he intended to convey the farm to plaintiff’s husband or, in the event of his death, to plaintiff, or that he had done so. Hor is the proof with respect to part performance sufficient to render an oral contract enforcible. Plaintiff and her husband had lived on this farm and had exclusively used it for forty years without payment of rent. Their payment of the taxes, the nature of the improvements made, and the fire insurance which was obtained by them do not furnish any key to the existence of an agreement to convey. (Burns v. McCormick, 233 N. Y. 230, 232; Neverman v. Neverman, 254 N. Y. 496; Hallenbeck v. Griffith, 139 Misc. 796, affd. 232 App. Div. 785.)