#### Lizzie V. Bevans, App’lt, *v.*Lydia F. Young *et al.,*Resp’ts.

*(Supreme Court, General Term, Second Department,*

*Filed February 9, 1891.)*

Statute of frauds—Oral contract fob sale of seal estate—Part PERFORMANCE.

Defendant refused to extend plaintiff's lease for five years, but orally agreed to give her the refusal of buying the premises until a time specified. Prior to such time, however, she sold to other parties. Plaintiff bought some furniture, put coal in the cellar, trimmed the grapevine and sodded part of the yard, but did so as a tenant and not in reliance on the option to buy. *Held,*that there was not such a part performance as to take the oral agreement to sell out of the statute of frauds.

Appeal from judgment of nonsuit.

Action to compel the specific performance of an oral contract to convey real estate.

*Gilbert O. Hulse,*for app’lt; *William H. Crane,*for resp’ts.

Barnard, P. J.

The agreement relied on by the plaintiff for the purchase of the property was not in writing and was void by the statute of frauds. She had hired of the defendant the premises by a written lease for one year from April 1, 1888. Before this lease expired there was a new arrangement made for the leasing of the property from April 1,1889, to May 1,1890, which included some personal property, window shades and lamps having been “ thrown in ” by the defendant. In November following, the plaintiff applied for a five years lease. Defendant declined, but gave the plaintiff the refusal of buying the property at $3,250 “ during the term.” The plaintiff claimed that a new term was made in November, 1889, for one year from that time. The judge at special term found that the leasing was on its renewal for one year from 1st of April, 1889. This accords with the probabilities of the case. On the 24th of March, 1890, just before the expiration of the lease, the defendant obtained an offer of $3,000 for the place and she offered the right to purchase to the plaintiff at that price. She made objection about a “ drive on one side of the property that Mr. Farnum used.” The parties separated with an understanding that “two or three days were to be given to think it over.” Finally the defendant gave the plaintiff a right to purchase until the 1st of May, 1890. On the 1st of April, 1890, the defendant sold the land to one Lambert. After the 1st of April, 1890, the defendant dispossessed the plaintiff who was holding over after the expiration of term. There is no proof that the plaintiff ever decided to take the property. The proof of part performance is not sufficient to call for a specific performance of a void contract. Some furniture was bought. Some coal was put in the cellar; the yard was fixed a little ; the grape vine was trimmed, and some eight feet square was sodded. *42The trial court finds that this work was not done in reliance upon the option to buy, but as tenants, and this is, undoubtedly, the proper conclusion. The furniture would suit other houses, and the work is so trifling that a tenant would ordinarily do it to make the home more attractive.

The judge was not bound to find the entire credibility of the plaintiff’s witnesses. If the testimony taken had gone to a jury, and they had found adverse to the plaintiff upon it, no appellate court could properly reverse the finding.

The evidence was peculiarly such as would permit a different deduction from that claimed by the plaintiff.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.