Howell v. Howell

Appellate Division of the Supreme Court of New York

Howell v. Howell

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 17, 1945

StatusPublished

This text of 269 A.D. 1053 (Howell v. Howell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howell v. Howell, 269 A.D. 1053, 58 N.Y.S.2d 907, 1945 N.Y. App. Div. LEXIS 5232 (N.Y. Ct. App. 1945).

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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.)

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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.)

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Bluebook (online)

269 A.D. 1053, 58 N.Y.S.2d 907, 1945 N.Y. App. Div. LEXIS 5232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howell-v-howell-nyappdiv-1945.

Opinion

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