Opinion
June 24, 1949.
Present — Taylor, P.J., McCurn, Vaughan, Kimball and Piper, JJ.
Judgment reversed on the law and facts, with costs, and complaint dismissed, with costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings made. Memorandum: On the record before us, we feel that specific performance must be denied. The evidence in our opinion discloses that the oral agreement between the parties created the relationship of tenant and owner rather than that of seller and purchaser. Where specific performance of an oral agreement to convey real property is sought, the acts of the parties must be "unequivocal in their character and must have reference to the carrying out of the agreement. An act which admits of explanation without reference to the alleged oral contract * * * is not, in general, admitted to constitute a part performance". ( Wooley v. Stewart, 222 N.Y. 347, 351; see, also, Burns v. McCormick, 233 N.Y. 230; Neverman v. Neverman, 254 N.Y. 496.) All concur. (The judgment is for plaintiffs in an action to compel defendants to specifically perform an oral contract for the sale of a farm and dairy to plaintiffs.)