SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
December 11, 1969
PAUL J. MOULTON ET AL., RESPONDENTS,
CHARLES M. MOORE, AS EXECUTOR OF LUCILLE A. HOFFMAN, DECEASED, APPELLANT
Appeal from judgment and order of Livingston Trial Term granting specific performance; order denied motion to vacate judgment.
Del Vecchio, J. P., Marsh, Moule, Bastow and Henry, JJ.
Judgment and order reversed on the law and facts, without costs, and matter remitted to Supreme Court, Livingston County, for further proceedings in accordance with the following memorandum: In this action for specific performance, the court found that the plaintiffs had an oral option to buy the property and that because of their part performance, the Statute of Frauds was not a bar to their action. While there was sufficient proof of an oral option, the part performance was not unequivocally referable to the oral agreement and, therefore, insufficient to overcome the defense of the Statute of Frauds (Wilson v. La Van, 22 N.Y.2d 131). However, since the plaintiffs did prove that improvements, which enhanced the value of the property, were made in reliance on the oral agreement, they should be reimbursed for them (Wilson v. La Van, supra) less any amount the court may find due the defendant for rent or use of the property and removal of improvements made and left on the property by plaintiffs in violation of agreement between the parties. All concur, except Del Vecchio, J. P., who dissents and votes to affirm.
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