Burns v. McCormick

New York Court of Appeals · 1920 · Property

135 N.E. 273 (N.Y. 1922)

Updated July 23, 2026

PropertyStatute of FraudsPart PerformanceSpecific Performanceoral contractland transferunequivocally referableservices

Facts

James A. Halsey, an elderly widower living alone in Hornell, allegedly told the plaintiffs that if they gave up their home and business in Andover and boarded and cared for him during his life, his house, lot, furniture, and equipment would be theirs when he died. The plaintiffs sold their interest in a small draying business, moved in, and boarded and tended Halsey for about five months until his death. There was no deed, will, or signed memorandum memorializing the promise. The plaintiffs sued for specific performance, and the defense invoked the Statute of Frauds.

Issue

Whether an oral promise to transfer land at death may be specifically enforced when the promisees gave up their former home and business, moved in with the promisor, boarded him, and rendered housekeeping and care services, but never took possession as owners and had no signed writing.

Rule

Not every act of part performance removes an oral land agreement from the Statute of Frauds. The performance must be unequivocally referable to the alleged agreement: the acts themselves, without aid from words of promise, must be unintelligible or at least extraordinary unless they are incidents of ownership, assured if not existing. If the conduct is reasonably explainable on some other basis, such as service, lodging, repayment, gratitude, or an indefinite expected reward, it is insufficient.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Albany, Nora Patel orally promised her neighbor, Liam Harper, that she would devise her townhouse to him if he moved in and cared for her during her illness. Liam moved into a spare room, cooked meals, cleaned the house, and paid grocery bills for eight months, but Nora continued paying taxes, insurance, and repair costs until her death.

If Liam seeks specific performance of the oral promise to transfer the townhouse, what is the strongest argument against enforcement?

Explanation. Equity will not enforce an oral agreement affecting land unless the part performance is unequivocally referable to the agreement. Here, caregiving, housekeeping, and paying food bills are readily explainable as services, lodging arrangements, or expected compensation, not as incidents of ownership. Because the acts do not themselves signify present or prospective title, specific performance should be denied.