I dissent. The plaintiffs assert that the defendants verbally agreed to execute a lease of premises for ten years at $250 a year, without restriction for subletting. The defendants assert that the agreement was for five years, with a restriction for limited subletting. The court has decided for the plaintiffs and decreed a specific performance. The agreement was made in November, 1902. In December, 1902, the plaintiffs paid a deposit of twenty-five dollars *819to secure the rooms. Completion of the building was delayed by labor troubles, but in April, 1903, the plaintiffs took possession of the premises. Such occupancy has continued and the rental has been paid monthly. After possession the plaintiffs papered the rooms, made closets, did work upon platforms, laid a carpet made, cut and fitted to the rooms, and otherwise prepared the premises for its purposes at an outlay of $600 or $700. There is no dispute that there was a contract, and the court has decided that it called for a lease as to the terms asserted by the plaintiffs. I think that the evidence justifies the decision, and that it is beyond our interference so far as the facts are concerned under the rule of Lowery v. Erskine (113 N. Y. 52); Foster v. Bookwalter (152 id. 166); City of New York v. Herdje (68 App. Div. 370) and like cases. Possession under the circumstances indicates the requisite intention of the plaintiffs to perform a contract (Pom. Spec. Perf. [2d ed.] § 116), and in consequence of the finding of the court now confirmed the contract. 1 think that such possession is such part performance as to eliminate the defendant’s plea of the Statute of Frauds. Pomeroy {supra, § 115) says : “ Possession alone of land, under a verbal contract, when delivered to the vendee or lessee, or taken by him with the consent of the vendor or lessor, or w'itli the knowledge which implies such consent, is an act of part performance which takes the case out of the Statute of Frauds, even without the additional circumstances of the payment of consideration, or the making of improvements.” Story in his Equity Jurisprudence (13th ed. § 761) says: “ But a more general ground, and that which ought to be the governing rule in cases of this sort, is that nothing is to be considered as a part performance which does not put the party into a situation which is a fraud upon him, unless the agreement is fully performed. Thus for instance if upon a parol agreement a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser, if there be no agreement valid in law or equity. 27ow for the purpose of defending himself against a charge as a trespasser, and a suit to account for the profits in such a case, the evidence of a parol agreement would seem to be admissible for his protection ; and if admissible for such a purpose, there seems no reason why it should not be admissible throughout. * * * In like manner the mere possession of *820the land contracted for will not be deemed a part performance if it be obtained wrongfully by the vendee, or if it be wholly independent of the contract. * * * Bnt if the possession be delivered and obtained solely under the contract, or if in case of a tenancy the nature of the holding be different from the original tenancy, as by the payment of- a higher rent, or by other unequivocal circumstances referable solely and exclusively to the contract, there the possession may take the case out of the statute.” (See, too, Beardsley v. Duntley, 69 N. Y. 577 ; Browne Stat. Frauds [5th ed.], §467.)
The rule is well settled that improvements made by the lessee of a kind natural to the existence of the contract for a lease, made on the faith of it and subsequent to it may establish partial performance of the contract. (Story Eq. Juris, supra, § 763; Pomeroy, supra, § 126 ; Browne Stat. Frauds, supra, §487; Mundy v. Jolliffe, 5 Myl. & Cr. 167; Wendell v. Stone, 39 Hun, 382; Sutherland v. Briggs, 1 Hare, 26; Gibbs v. Horton Ice Cream Co., 61 App. Div. 621.) The testimony as to improvements in this case is open to the criticism that it nowhere clearly appears that they were made pursuant to any agreement for the lease, or that the defendants consented to them or had knowledge of them save perhaps the platforms. Generally speaking, no presumption of the owner’s consent or knowledge arises from the mere fact that the improvements were made. (Pomeroy, supra, § 126.) In this case in the absence of any evidence of the defendant’s non-consent dr ignorance, possibly the character and condition of the building, the nature of the improvements or of part of them, and the general knowledge of the defendants, who appear to have been in close touch with the premises,'may be sufficient to raise a presumption of their consent or knowledge of the improvements.
But in any event I think that there was sufficient evidence, aside from the matter of improvements, to justify the decree. As no sound reason appears why we should disturb the discretion of the equity court, I vote that the judgment be affirmed, with costs. (Dunckel v. Dunckel, 141 N. Y. 427, 434.)
Hooker, J., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.