
    Jehial Sackett, Resp'ts, v. Elijah Thomas, App'lt.
    
      (Supreme Court, Appellate Division, Fourth Department,
    
    
      Filed April, 1896.)
    
    1. Appeal—Conflicting testimony.
    Findings of fact by referee, sustained by the evidence, will not be disturbed on appeal, where as to some of them the testimony of the parities is conflicting.
    2. ÜAMAGes—Nominal.
    In the absence of any evidence as to the extent of the damages sustained by the plaintiff, only nominal damages should be awarded.
    3. Appeal—Modification of judgment.
    In such case, the .court has power to modify the judgment in this respect.
    Appeal from a judgment in favor of plaintiff for the recovery of the premises described in the referee’s report, and for five dollars damages.
    The action was brought in ejectment to recover possession of a strip of land. The parties owned adjacent farms, situated in the town of Hanover, in the county of Chautauqua, and the real conttroversy is over the line between the lands of the respective parties. Besides the recovery of the premises described in the referee’s report there was an award of five dollars damages to the plaintiff
    George E. Towne, for app’lt; W. S. Thrasher, for resp’t.
   HARDIN, P. J.

Appellant has excepted to the referee’s findings 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. City National Bauk, 71 id. 390; Penfield v. Sage, id. 575; Burton Co. v. Cowan, 80 id. 392; Thompson v. Vrooman, 49 St. Rep. 537; 21 Supp. 179; Teeter v. Teeter, 47 St. Rep. 580.) As to some of 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 the Code of Civil Procedure. (§ 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 by the defendant of the lands mentioned; and there is also an exception taken 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. We see no evidence tending in any way to establish that the plaintiff 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; 52 St. Rep. 339. Beyond the modificatiou suggested we are of the opinion that the report of the referee should reniain and the judgment as modified should be affirmed.

All concur.

Judgment modified so as to reduce the damages to six cents, and as so modified affirmed, without costs to either party on this abpeah  