ger. One witness testified that the defendant said he tore it down. The plaintiff testified that the fence looked as if the defendant had hitched his team to it and torn it down, and that the damage to the fence was four or five dollars. The defendant testified that he told the plaintiff the fence would have to be removed, and that he tore it down to repair the highway. There is no evidence to show that the removal of this fence was wrongful nor that the plaintiff did not consent to its removal. That it was wrongfully removed should not, we think, be presumed to enable us to reverse the judgment in this case. The presumption, if any, is that it was properly removed by the defendant to enable him to repair the highway, and after verdict a presumption that will uphold a judgment should obtain rather than one that would result in a reversal. Moreover, the evidence tended to show that the fence was of little value, and we cannot say from it that the damages were more than nominal, and a judgment should not be reversed where the damages are only nominal. Stephens v. Wider, 32 N. Y., 351.

We think the judgment should be affirmed.

Judgment affirmed, with costs.

MERWIN, J., concurs.

HARDIN, P. J.-Under some circumstances a judgment for nominal damages will be reversed. Countryman v. Lighthill, 24 Hun, 405. This case does not fall within the exception, and, therefore, I concur in the foregoing opinion.

CLARK SURDAM, App'lt, v. WESLEY INGRAHAM and WILLIAM PERKINS, Resp'ts.

(Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) WITNESS-IMPEACHMENT.

Where the evidence elicited on the cross-examination of a witness does not tend to contradict, discredit, vary, qualify or explain the testimony given by him on the direct, an affidavit made by him containing contradictory statements is inadmissible to impeach him.

APPEAL from judgment in favor of defendants.

A. D. Wales, for app'lt; A. A. White, for resp'ts.

PER CURIAM. The court properly excluded the evidence offered by the plaintiff as to the title and possession of the premises where the affray occurred, and the charge upon that subject was proper. No issue as to such title or possession was made by the pleadings or properly involved in the trial.

It was not error to exclude the affidavit made by Wesley and William Ingraham. The only theory upon which it is claimed that it was admissible is that it tended to impeach the testimony of the witness William Ingraham. This witness, on his direct. examination, testified to nothing which was at variance with the matters stated in the affidavit. He had not testified that the old man Surdam struck at his brother Wesley, nor that he did not. N. Y. STATE REP., VOL. XXXVI. 97

He had given no testimony upon the subject, either upon his direct or cross-examination, when he was dismissed from the witness stand. He was subsequently recalled by the plaintiff, and, upon plaintiff's examination, testified: "Old man Surdam didn't come for me nor strike me at all; he did not strike at my brother Wesley at all, that I saw; I was hit with an ax.

If we assume that the affidavit offered was inconsistent with this evidence, still, as the evidence elicited by the plaintiff on this last examination did not tend to contradict, discredit, vary, qualify or explain the testimony given by the witness on his direct examination, it was new and independent matter drawn out by the plaintiff, and did not furnish a basis for the introduction of proof that the witness had made contradictory statements. People v. Cox, 21 Hun, 47; aff'd, 83 N. Y., 610; Sherman v. D., L. & W. R. R. Co., 106 N. Y., 542, 547; 11 N. Y. State Rep., 318; McCallan v. The Brooklyn City R. R. Co., 48 Hun, 340; 15 N. Y. State Rep., 843; People v. Holfelder, 5 id., 488.

As these are the only errors claimed, it follows that the judg ment and order appealed from should be affirmed.

Judgment and order affirmed, with costs.

HARDIN, P. J., MARTIN and MERWIN, JJ., concur.

GREEN W. INGALLS, Resp't, v. SILAS B. HAHN, App'lt. (Supreme Court, General Term, Fourth Department, Filed February 20, 1891.)

1. VENDOR AND PURCHASER-TITLE.

Plaintiff contracted to purchase real estate of defendant, but refused to take the deed tendered on the ground of defect in title. In a deed to defendant he was described as trustee, and he was so described in the deed tendered to plaintiff. The deed was signed by him as trustee, and, also, individually, but it stated that he was not a trustee, but owned the premises in his own right. It appeared that he paid for the property by a check signed in his brother's name by him as attorney, but it was proved without contradiction that the fund on which it was drawn was defendant's and the brother's name was used with his consent as an accommodation, and that the title was taken in defendant's name as trustee to avoid the necessity of having his wife sign deed in case she were absent. Held, that the evidence did not justify a finding that the money paid for the property was not the defendant's money, and that plaintiff was not entitled to recover the liquidated damages provided for in the contract. 2. SAME.

The title, however, was so far doubtful or unmarketable as to justify plaintiff in refusing to accept it and demanding a return of the money paid by him under the contract.

APPEAL from a judgment for plaintiff for $3,853.94 entered in Onondaga county on the verdict of a jury, and from an order denying a motion for a new trial made on the minutes of the trial judge.

Wm. Nottingham, for resp't; C. L. Stone, for app'lt.

MARTIN, J. This action was to recover $2,000 liquidated damages for breach of a contract between the plaintiff and defendant for the purchase of a house and lot situated in the city of Syracuse, N. Y., and also, to recover the sum of $1,000 paid by

the plaintiff on the execution and delivery of such contract. On the day appointed by the agreement the parties met, and the plaintiff tendered performance upon his part and the defendant tendered to the plaintiff an abstract of title and a deed of the premises in question. The plaintiff declined to accept the deed tendered, upon the ground that the defendant was described as trustee in the conveyance to him, and also in the deed tendered by him, while in the latter deed it was stated that he was not a trustee, but owned the property in his own right. The plaintiff also demanded a return of the $1,000 paid by him on the contract between them, which was refused by the defendant.

On the trial, the court submitted to the jury the question whether the plaintiff would have acquired a good title to the premises in question if he had accepted the deed tendered by the defendant. In submitting that question, the court charged that if the defendant used his own money in purchasing the property, then the title was in him, and the conveyance tendered to the plaintiff, if received, would have transferred a good title. The jury was also instructed that if the property became his and the deed tendered would have passed a good title, the plaintiff could not recover the $2,000 liquidated damages provided for by the contract.

The jury found that the money used by the defendant in paying for the property was not his absolute property. Unless this finding is sustained by the evidence, it would seem that the judgment should be reversed as to the liquidated damages recovered, as the case was submitted solely upon that theory.

The proof was that the defendant took title to the premises in his name, with the word trustee added thereto; that he gave the contract to the plaintiff in his own name as trustee; that he signed the deed tendered with the word trustee following his name, and also signed his name without the addition of the word trustee. It was, however, stated in the deed tendered that the defendant was not in fact trustee and did not hold the property as such; that he paid the full consideration from his own money, and not for the benefit or use of any other and that no person; person other than the grantors had any right, title or interest

therein.

The defendant on the trial testified that he did not hold the property in trust, but that he had the word trustee inserted after his name so that he might convey the property without his wife's joining with him in such conveyance, in case she were absent from the state when he should desire to convey it. The check with which the defendant paid for the property in question was drawn on the Trust & Deposit Company of Onondaga by him, and the name of his brother was signed as maker by the defendant as his attorney. Both the defendant and his brother testified that the money did not belong to the defendant's brother, but belonged to the defendant alone; that the defendant was permitted to use his brother's name in that manner because the deposit company would not receive and pay interest upon an amount as large as the defendant had desired to deposit with it; that the money

was thus deposited for these reasons alone. This testimony was uncontradicted.

We do not think the evidence was sufficient to sustain the finding of the jury that the money used by the defendant in purchasing the property in question was not the money of the defendant. The only evidence which tended to prove that it was not, was that it stood in the defendant's brother's name on the books of the trust company where it was deposited. This circumstance was fully explained not only by the evidence of the defendant, but also by that of his brother, in whose name it was deposited. This being the only ground upon which the invalidity of the defendant's title was based, and the evidence being insufficient to sustain it, we think so far as this branch of the case is concerned the judgment should be reversed.

This leaves for consideration the question whether the title offered by the defendant was so far doubtful or unmarketable as to justify the plaintiff in refusing to accept it, and demanding a return of the money paid by him under the contract between them. The jury found that when the defendant tendered the deed of the premises to the plaintiff there was a reasonable doubt as to the plaintiff's title. That the evidence tended to show that the property was held by the defendant as trustee must be admitted. We think the jury was, under the evidence, justified in finding that there was such a reasonable doubt as to the defendant's title as would affect the value of the property and interfere with the sale thereof to a reasonable purchaser, and that under the evidence and findings of the jury the plaintiff was entitled to recover the money paid by him upon the contract between the parties. Moore v. Williams, 115 N. Y., 586; 26 N. Y. State Rep., 259; The M. E. C. Home v. Thompson, 108 N. Y., 618; 13 N. Y. State Rep., 127; Moore v. Appleby, 108 N. Y., 237; 13 N. Y. State Rep., 492; Fleming v. Burnham, 100 N. Y., 1; Shriver v. Shriver, 86 id., 575.

It follows that. the judgment should be reversed, unless the plaintiff shall stipulate to modify it by reducing it to the sum of $1,000, with interest thereon from the date of the contract between the parties. If he shall so stipulate, then the judgment should be modified accordingly, and as modified affirmed, without costs of this appeal to either party.

Judgment reversed, with costs to abide the event, unless the plaintiff stipulates to modify the same. If he shall so stipulate, then judgment modified, and as modified affirmed, without costs of this appeal to either party.

HARDIN, P. J., and MERWIN, J., concur.

JULIA T. MUNROE, Resp't, v. JACOB CROUSE and GILES EVER

SON, App'lts.

(Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) DOWER-DIVESTMENT OF-FORECLOSURE.

Plaintiff's husband was the owner of an interest in certain real property subject to a mortgage given by his grantors. Such interest was sold in bankruptcy proceedings to defendants subject to said mortgage and also

to plaintiff's inchoate right of dower. Defendants refused to pay interest on the mortgage for the purpose of compelling a foreclosure in order to cut off plaintiff's right of dower, and on the sale purchased it for the amount of the mortgage. Held, that defendants owed a duty to plaintiff to apply the fund left in their hands to the payment of the mortgage so as to relieve her right from extinguishment by a foreclosure and sale; that their purchase at the sale was inconsistent with their duty to her, and therefore that the judgment and purchase were not a bar to her recovery of dower.

APPEAL from an interlocutory judgment, entered in Onondaga county May 25, 1890, on a decision of the special term, adjudg ing that the plaintiff was entitled to dower to be admeasured to her out of certain premises owned by the defendants, Crouse and Everson, and to damages against them for withholding such dower, and appointing a referee to admeasure her dower and ascertain the amount of such damages.

M. E. & G. W. Driscoll and G. F. Comstock, for resp't; Waters & McLennan, for app'lts.

MARTIN, J.-The plaintiff and Allen Munroe were married June 11, 1847, and lived together as husband and wife until October 6, 1884, when Allen Munroe died intestate, leaving the plaintiff, his widow, surviving.

On the 15th of December, 1845, John Townsend and Augustus James were the owners in fee and in possession of the property known as the Syracuse House Property situated in the city of Syracuse, N. Y. On that day they executed and delivered to David S. Kennedy a mortgage thereon, in which their wives joined, to secure the payment of $40,000, according to the condition of a bond executed by them at the same time.

Before November 9, 1871, the plaintiff's husband and Charles B. Lansing and John Townsend had become possessed of and were the owners in fee, as tenants in common, of such property subject to the mortgage thereon, in the following proportions: Allen Munroe three-eighths, Charles B. Lansing three-eighths and John Townsend two-eighths. On that day they paid in that proportion to apply on said bond and mortgage $15,000, leaving unpaid thereon $25,000. After such payment and on the same day, at the request of Munroe, Lansing and Townsend, the owner of said bond and mortgage assigned it to the Onondaga County Savings Bank. On the 11th of the same month Munroe, Lansing and Townsend executed and delivered to the bank an instrument under their hands and seals, whereby they acknowledged that there was due upon such bond and mortgage the sum of $25,000, which they promised to pay within one year from the date of the assignment, with interest, and charged the premises with the payment thereof.

The property was thus held, the plaintiff's husband being the owner of three-eighths thereof and liable to pay three-eighths of the mortgage thereon, until the 21st day of February, 1876, when Allen Munroe and John W. Barker, who were co-partners, made a general assignment under the state laws for the benefit of their creditors, individually and as partners, to James J. Belden, who accepted the trust and qualified as such assignee.