Opinion
November 16, 1955.
Appeal from Supreme Court, Broome County.
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
The defendant-appellant Stanley Russik was, with his wife Theresa Russik, who does not appeal, owner of land through which ran a stream. Appellant was a member of the Aqua-Terra Sportsmen's Club for which plaintiff sues as president for the specific performance of a contract to sell real estate. The members of the club wanted to construct a dam and to flood lands to make a lake for the club's use on appellant's land, and the Special Term has found on an abundant record that the club members and appellant agreed orally to lease the land for ten years at $1 a year; to pay taxes on appellant's farm; and to have an option to buy the land for $3,000 within the ten-year period of the lease. Since the agreement was not in writing the problem on appeal is whether there is sufficient proof of partial performance in the record to take the agreement out of the Statute of Frauds. We agree with the court at Special Term that the proof in this direction is sufficient. A dam over 500 feet long and 35 feet in height was constructed. The club spent $1,957 for this work; $1,200 for other material which went into the project; $1,000 for surveys and some 2,788 hours of labor were contributed by the club members to the job. Appellant not only knew this work was in progress and fully approved it, but he himself actively took part in some of it. He testified, however, that he "never agreed to sell or lease any of the land." On cross-examination, he admitted that "I told them, if they wanted to build a pond there, they were welcome to do it. * * * I told them that, if I ever sold the property, I wouldn't sell it to nobody else but them; for building a pond on it." When asked to explain why he allowed the club to pay taxes on the property, if not in pursuance of the agreement to purchase, his explanation was that one of the members had suggested "that I was a good fellow so they would help me pay the taxes". We think that there was such a partial performance of the contract that it is enforcible. In the course of trial the case was marked settled and the court was advised that the agreement between the parties then was that the settlement was for $5,000 to be paid appellant for his deed. Appellant then disavowed this settlement and refused to consummate it. In finding for plaintiff the Special Term incorporated the amount of the settlement as the basis for specific performance in the judgment rather than the original amount of $3,000 which was the option agreed upon, on the theory that the parties had modified their agreement. Appellant, however, had disavowed this settlement, but since respondent does not complain of the generosity of the judgment in this respect we see no ground to disturb the view of the judge at Special Term of what would be appropriate. Judgment unanimously affirmed, with costs.