(dissenting.) I start with the premise — for we are all agreed on the proposition — that not every act of part performance is sufficient to take an oral contract for the sale of real property out of the statute of frauds (Real Property Law, § 259). If equity is to enforce such an oral agreement, it requires assurance, positive and unequivocal, from the acts performed, that “ The peril of perjury, and error * * * latent in the spoken promise ” is avoided. (Burns v. McCormick, 233 N. Y. 230, 234.) Accordingly, the principle is firmly established that part performance “ must itself supply the key to what is promised. It is not enough that what is promised may give significance to what is done. ’ ’ (Burns v. McCormick, supra, 233 N. Y., at p. 232.) In other words, part performance, alone and without relation to the oral promise, must be “ solely and unequivocally referable ” to an agreement of purchase and sale, “ unintelligible or at least extraordinary unless as an incident of ownership ”; if it is not, the promise may not be enforced. (See Neverman v. Neverman, 254 N. Y. 496, 500; Burns v. McCormick, supra, 233 N. Y. 230, 232, 234-235; Woolley v. Stewart, 222 N. Y. 347, 351.)
*286I fail to find in the record before us evidence of such part, performance. The plaintiff Roberts gave up a factory job paying $80 a week and, with his wife and children, moved to the farm; he .then proceeded to make extensive repairs, to cultivate the land, to attend.to and milk the cows, and to pay Mr. Fulmer, one third of the proceeds realized from the milk sales. While it may be argued that those were the acts of an owner or a vendee in possession, it may not be said that only an owner or a vendee would perform them. In no sense may it be asserted that such performance was “ solely and unequivocally referable ” to a contract of sale. It did not in and of itself supply the key to what was promised; it was just as reasonably referable to an agreement to, rent as to one to sell.
Further appraisal of the proof relied upon but confirms that conclusion. Manifestly, the fact that Roberts gave up an $80 a week job and took possession of the farm cannot establish, without the aid of the words of promise asserted, that he occupied it as a purchaser rather than as a tenant — particularly since it appeared that Roberts had not been able to make ends meet in the city, detested factory work and preferred life on a farm. Nor does the fact that Fulmer and Roberts arranged that the proceeds from the sale of the milk should be divided on the basis of one-third to the former and two-thirds to the latter - establish, without reference to the oral agreement alleged, a contract of sale. Fulmer’s receipt of one third of the- milk checks may conceivably have been on account of a-purchase price, but, on the other hand, it may just as reasonably have constituted compensation to defendants as landlords for the use of their land and their stock — particularly since the entire herd of about twenty cows, which produced the milk, belonged to Fulmer, having been purchased by him and placed upon the farm for plaintiffs’ use. Nor does the fact that plaintiffs made repairs and improvements point unerringly and without question to an agreement of sale. An owner or a vendee in possession would, of course, have done what Roberts did, but so would a tenant farmer — particularly when his sustenance and the amount of his earnings depended upon the state and condition of the farm and its buildings. In point of fact, in evaluating the significance of plaintiffs’ acts, we cannot dismiss from mind or overlook that Fulmer not only had one of his own *287employees assist plaintiffs in the work of repair and improvement ; not only reimbursed plaintiffs for many of their outlays; not only shared the cost of feed and hay; but also actually paid the taxes on the property as well as the insurance and — in addition to supplying all of the cows — purchased equipment, such as a tractor and a milk cooler, for plaintiffs’ exclusive use.
Whether or not the record convincingly stamps defendants as owners and landlords, whether or not the evidence persuasively marks plaintiffs as tenants, we need not decide. It is sufficient to say that the acts of part performance failed to point “ solely and unequivocally ” to a contract for the sale of the farm or to a vendor-vendee relationship; they were equally and as reasonably explainable as the acts of a tenant farmer receiving the major share of the milk checks for labors performed and expenses incurred.
I would affirm the judgment of the Appellate Division.
Lewis, Conway and Froessel, JJ., concur with Dye, J.; Fuld, J., dissents in opinion in which Loughran, Ch. J., and Desmond, J., concur.
Judgment accordingly. [See 301 N. Y. 778.]