Opinion
November 16, 1961
Present — Bergan, P.J., Coon, Gibson, Herlihy and Taylor, JJ.
Appeal by defendants from an order of the Supreme Court at Special Term, St. Lawrence County, which denied their motion for summary judgment under rule 113 of the Rules of Civil Practice in an action for the specific performance of an agreement for the sale of real estate. The complaint alleges an agreement for the purchase and sale of real property for the sum of $29,000, payments by two checks in the amounts of $100 and $900 respectively on account of its purchase price, the delivery of possession of the premises to the defendants, their alteration and repair of the same and other needful allegations to state a cause of action in equity. The answer denies the material allegations of the complaint, sets forth the following writing: "Jan 20 1959 RECEIVED OF Ruth Chester Wood One hundred Dollars for deposit on Easter [ sic] Cain restaurant purchase price $29,000 — deposit money to be refunded if waiver is not received. — ESTHER L. CAIN" and pleads the Statute of Frauds as a separate defense. The written memorandum, subscribed only by the vendor, is insufficient, standing alone, to satisfy the requirement of the statute (Real Property Law, § 259; Robinson v. Karr, 273 App. Div. 790; 1944 Report of N.Y. Law Rev. Comm., pp. 79-89). However, the affidavits of the parties are in sharp conflict as to the character and extent of the possession of the property by defendants and of the alterations and repairs which they made. Thus, a question of fact is presented whether or not the acts relied on by plaintiff constituted such a part performance of an oral contract for the sale of the real estate as to remove it from the operation of the Statute of Frauds and to authorize a court of equity to decree specific performance by the vendees. ( Walter v. Hoffman, 267 N.Y. 365; Real Property Law, § 270.) An additional question of fact is tendered by the affidavits in respect to the excusability of defendants' failure to apply for a waiver of an existing moratorium imposed by the State Liquor Authority to which the written memorandum refers. ( Reldan Realty v. Placid-Marcy Co., 5 A.D.2d 915, motion for leave to appeal denied 5 A.D.2d 1020.) On these issues Special Term properly found that plaintiff was entitled to a trial. ( Jacobson v. Jacobson, 268 App. Div. 770.) Moreover, the affidavit of respondent in opposition to the motion discloses facts which, if properly pleaded, conceivably might obviate the separate defense. ( Vallone v. Regan, 1 A.D.2d 690; No. 2 4 Roman Ave. v. Goddard, 220 App. Div. 138; Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48.) Order unanimously affirmed, with $10 costs.