
    Edward E. Erwin, Resp’t, v. Francis Erwin et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    Specific performance—Agreement to convey land.
    The father of plaintiff entered into a paroi agreement with him, by which it was provided that if he would enter into possession of a farm, cultivate and improve it as his own, that it should belong to plaintiff, and that at the father’s death he would convey or devise it to plaintiff. Plaintiff entered into possession and made valuable improvements, but his father conveyed the premises to one of the defendants. Held, that plaintiff, under these circumstances, was entitled to a decree for specific performance of the agreement as against the grantees and devisees of his father.
    Appeal from a judgment in favor of the plaintiff upon the decision of the court at special term in Steuben county February 2, 1891.
    
      J. F. Parkhurst, for app’lts; Frederick Collin, for resp’t
   Lewis, J.

The action was brought to compel Francis Erwin and others, as grantees of Francis E. Erwin, deceased, of a farm in Steuben county, to convey to the plaintiff such farm in fulfilment and performance of a paroi agreement of Francis E. Erwin, deceased, with the plaintiff.

A former trial of the action was had, which resulted in a decisión and judgment in favor of the plaintiff, and upon - appeal the judgment was reversed and a new trial granted because of an error in the admission of evidence. 54 Hun, 166; 26 St. Rep., 759. The new trial has been had, and resulted in a decision and judgment in favor of the plaintiff. The trial court found that there was a paroi agreement entered into between Francis E. Erwin, deceased, the father of the plaintiff, and the plaintiff, in the year 1858, by the terms of which it was agreed that if the plaintiff would enter into the possession of the farm in controversy and cultivate and improve it as his own that it should belong to the plaintiff, the title to remain in the father during his lifetime, and that at his death he would convey or devise it to the plaintiff, and that the plaintiff entered into the possession of the farm and made valuable and permanent improvements thereon, and in all respects kept and performed his part of the agreement, and that he never abandoned the contract or the premises.

There was evidence tending to prove these facts thus found by the trial justice. The testimony of many of the plaintiff’s witnesses is open to the criticisms made by the appellants’ counsel, but the witnesses were before the trial justice. He saw them and observed their manner of giving their evidence. If the facts testified to by these witnesses were true, the plaintiff‘was entitled to the relief demanded in the complaint. There was, we think, ample testimony to sustain the findings of the trial court.

There was evidence tending to show that the plaintiff abandoned the premises and the contracts. This was controverted by the testimony of the plaintiff. There was sufficient evidence to sustain the finding of the trial court in favor of the plaintiff upon this claim of the defendants.

We find no reason for disturbing the judgment.

It should be affirmed, with costs of the appeal against the appellants.

Judgment affirmed, with costs.

Dwight, P. J., and Macombeb, J,, concur.  