Belter v. Lyon

Larremore, Ch. J. [After statingthe facts as above.]— The parties to the suit appear to have acquiesced in the delay that followed the sale, of its absolute consummation. It does not appear from the record that any fraud was committed or any misrepresentation made in reference to the sale. The court had the power, in the absence of fraud, to issue such a direction to the referee (Baring v. Moore, 5 Paige 48, 53), and lapse of time, under the circumstances, was no objection (Willets v. Van Alst, 26 How. Pr. 325). It may be seriously questioned whether the contract as alleged by the defendant Lyon is not void under the Statute of Frauds (Wheeler v. Reynolds, 66 N. Y. 227; Lathrop v. Hoyt, 7 Barb. 59). But, as before stated, the parties seemingly acquiesced in the arrangement now sought to be carried out, and as there has been a part performance of the contract by the plaintiff in entering into the possession of the premises, and she has expended moneys thereupon, we think that the original contract should be carried out. It does not appear that the defendant ever offered to comply with the conditions of the contract upon which she relies, or that there was any breach thereof by the plaintiff. The order appealed from should be affirmed. Allen and Bookstaver, JJ., concurred. Order affirmed.