Sackett v. Thomas — 38 N.Y.S. 608

Majority

p. 608

SACKETT v. THOMAS.

(Supreme Court, Appellate Division, Fourth Department.

April, 1896.)

Headnote

1. Appeal—Review—Conflicting Testimony.

Findings of fact by a referee, sustained by the evidence, will not be disturbed because as to some of them the testimony of the parties was conflicting.

3. Appeal—Modification of Judgment.

' Under Code Civ. Proc. § 1317, authorizing the modification of a judgment appealed from, a judgment on the report of a referee, .which erroneously awards more than nominal damages, may be modified by reducing the damages.

Appeal from judgment on report of referee.

Action by Jehial Sackett against Elijah Thomas to recover possession of a strip of land. The parties owned adjacent farms, and the real controversy is over the line between their lands in the town of Hanover, in the county of Chautauqua. From a judgment in favor of plaintiff for the'recovery of the premises described in the referee’s report, and for five dollars damages, defendant appeals.

Modified.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.

George E. Towne, for appellant.

W. S. Thrasher, for respondent.

Appellant has excepted to the referee’s finding

of fact. Upon a careful perusal of the evidence we are of the opinion that it sustains the conclusions of fact reached by the referee, Roosa v. Smith, 17 Hun, 138 ; Reynolds v. Bank, 71 Hun, 390 , 24 N. Y. Supp. 1134 ; Penfield v. Sage, 71 Hun, 575 , 24 N. Y. Supp. 994 ; Burton Co. v. Cowan, 80 Hun, 392 , 30 N. Y. Supp. 317 ; Thomp

p. 609

son v. Vrooman (Sup.) 21 N. Y. Supp. 179 ; Teeter v. Teeter (Sup.) 20 N. Y. Supp. 259 . As to some oí the essential questions involved in the controversy there was a conflict in the evidence, and it was for the referee to determine that conflict, and to apply the evidence in connection with the solution made by him of the conflicting evidence. We think his conclusions of fact should be sustained. It is contended, however, in behalf of the appellant, that the findings of fact are not supported by the evidence, and therefore may be reviewed, and the conclusions based thereon set aside, under the provisions of Code, § 993. As to some of the essential facts which the referee was called upon to find, the testimony of the parties was in conflict. The defendant, in his testimony, stated that the lane averaged from two to three rods wide, while the plaintiff testified that the lane was two rods wide. As we have already remarked, we see no occasion to disturb the conclusions reached by the referee upon the evidence. His opinion clearly and satisfactorily discusses the questions of fact. The defendant has excepted to a finding of the referee to the effect that the plaintiff has suffered damages in the sum of five dollars by reason of the unlawful withholding of the lands mentioned by the defendant, and there is also an exception made by the defendant to the conclusion of law stated in the report wherein the referee finds and states that the plaintiff is entitled to recover the sum of five dollars damages for the unlawful withholding and detention of the lands. We look through the case in vain for any evidence to support the finding of fact on the question of damages. Wé see no evidence tending in any way to establish that the defendant had suffered damages to the extent of five dollars by reason of the withholding of the lands from the plaintiff, awarded by the report of the referee. In the absence of any evidence as to the extent of the damages sustained by the plaintiff, we think the referee should have awarded only nominal damages, to wit, six cents. In that respect we think the report of the referee, and the judgment entered thereon, should be modified; and that the recovery of the damages should be reduced to the sum of six cents. There is undoubted power in the court to modify the judgment in that respect.. Code Civ. Proc. § 1317; Fischer v. Blank; 138 N. Y. 671 , 34 N. E.. 397 . Beyond the modification suggested, we are of the opinion that the report of the referee should remain, and the judgment, as modified, should be affirmed.

Judgment modified so as to reduce the damages to six cents, and, as so modified, affirmed, without costs. All concur.