Majority
p. 838Archibald N. McBean, App’lt, v. William M. McCallum, Resp’t. (Supreme Court, General Term, Second Department, Filed July 26, 1895.)
Headnote
Appeal — Finding by court.In considering the weight of evidence upon an appeal from the judgment in a case tried by the court without jury, the finding of the judge will be treated the same as the verdict of a jury.
Appeal from a judgment, rendered by the court on a trial without a jury.
Nichols & Bacon, for app’lt; Calvin Frost, for resp’t.
— This is an appeal by the plaintiff from a judg-. ment in his favor. An action was brought to recover damages against 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
p. 839
and signed by the parties, and when they met to close the transaction land of the plaintiff was found to be incumbered beyond the knowledge of the defendant, and he refuse d 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.