McBean v. McCallum — 34 N.Y.S. 1003

Majority

p. 1003

McBEAN v. McCALLUM.

(Supreme Court, General Term, Second Department.

July 26, 1895.)

Headnote

Appeal—Review—Finding by Court.

On appeal from the judgment in a case tried by the court without a jury, the finding of the judge will be treated the same as the verdict of a jury in considering the weight of evidence.

Appeal from circuit court, Kings county.

Action by Archibald N. McBean against William M. McOallum for breach of contract. From a judgment rendered by the court on a trial without a jury, plaintiff appeals, on the ground that the court adopted an erroneous measure of damages.

Affirmed.

Argued before BKOWN, P. J., and DYKMAN, J.

Nichols & Bacon, for appellant.

Calvin Frost, for respondent.

This is an appeal by the plaintiff from a judgment in his favor. An action was brought to recover damages against

p. 1004

the defendant for a breach of contract for the exchange of real property between them. The action was tried before a judge without a jury, and he decided in favor of the plaintiff, and fixed the damages' at $200. The appeal is upon the ground that the court erred as to the measure of damages, which he insists should have been much larger. The facts are that the plaintiff was the owner of a house and some land in the city of Brooklyn, and the defendant was the owner of land in the city of Yonkers. A written contract for the exchange of property between them was made and signed by the parties, and when they met to close the transaction the land of the plaintiff was found to be incumbered beyond the knowledge of the defendant, and he refused to carry the contract into execution. The sole question involved in the appeal is one of damages. In this case the facts seem to be peculiar, and there is no fixed legal rule of damages which would apply to this case specially. It cannot be gathered from the testimony that the plaintiff sustained damages beyond the amount which was awarded to him by the trial judge, and as no specific rule of law in relation to the damages has been violated, we see no reason for interference with the decision upon that sole ground. The finding of the trial judge in respect to the damages should be treated the same as the verdict of a jury, and if this action had been tried before a jury, and a verdict rendered in favor of the plaintiff for $200, the appellate court would not feel at liberty to interfere with the verdict. As the same rule should apply to this case, we think the judgment should be affirmed, with costs.