
    Maud P. Gibbs, Respondent, v. The J. M. Horton Ice Cream Company, Appellant.
    Judgment affirmed on the opinion of Mr. Justice .Wilmofc M. Smith, at Special Term, with costs. All concurred.
    The following is the opinion of Smith, J., delivered at Special Term:
   Smith, J.:

The first question to be determined is: Was the oral agreement made between plaintiff and defendant as claimed by the plaintiff in her complaint? There is a sharp conflict of evidence between the plaintiff and thedefendanb’ssuperintendentupon this point. Without imputing to Mr. Stewart the intention of telling anything but the truth concerning the transaction, I am, neverbheless, convinced that the agreement was made at the time and substantially as claimed by the plaintiff. She is a woman who is engaged in business for herself. She had no person to rely upon to look out for her interest. It- was, therefore, natural that she should be anxious to be assured as to tenure of the place where she had been doing business for so long a time. It was also natural that she should remember clearly the details of the agreement. The agreement was void under the Statute of Frauds. Are the circumstances such that the plaintiff is entitled to its specific per* formance in equity? First, she has paid her rent regularly up to the time defendant sought to dispossess her. She remained in possession under the agreement for some months, and by virtue of the agreement she has made valuable repairs on the premises, which would not have been made except for the agreement. It is settled that the payment of the consideration of an alIeged contract is not alone sufficient to authorize its specific performance, bub it is also a general rule that when the eonsideration has been paid and possession under the contract taken the contract will be specifically enforced, and, to take the case out of the rule, the circumstances must be peculiar and exceptional. (Dunckel v. Dunckel, 141 N. Y. 435; Pawling v. Pawling, 86 Hun, 503; affd., 150 N. Y. 574.) Inthiscase the plaintiff did more than to pay rent and take possession. She expended considerable upon improvements of that character of permanency that she would nob have made except upon reliance upon the agreement. Upon this state of facts, I think under the authorities the plaintiff has made out a case entitling her to the relief demanded in the complaint. (Freeman v. Freeman, 43 N. Y. 34; Miller v. Bail, 64 id. 286.) Judgment' is directed for the plaintiff, with costs.  