McBean v. McCallum

New York Supreme Court

McBean v. McCallum

34 N.Y.S. 1003, 96 N.Y. Sup. Ct. 95, 68 N.Y. St. Rep. 838, 89 Hun 95

DecidedJuly 26, 1895

StatusPublished

This text of 34 N.Y.S. 1003 (McBean v. McCallum) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McBean v. McCallum, 34 N.Y.S. 1003, 96 N.Y. Sup. Ct. 95, 68 N.Y. St. Rep. 838, 89 Hun 95 (N.Y. Super. Ct. 1895).

Pincite

Opinion

DYKMAN, J.

This is an appeal by the plaintiff from a judgment in his favor. An action was brought to recover damages against [1004]*1004the 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.

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DYKMAN, J.

This is an appeal by the plaintiff from a judgment in his favor. An action was brought to recover damages against [1004]*1004the 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.

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Bluebook (online)

34 N.Y.S. 1003, 96 N.Y. Sup. Ct. 95, 68 N.Y. St. Rep. 838, 89 Hun 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbean-v-mccallum-nysupct-1895.