
    Jehial Sackett, Respondent, v. Elijah Thomas, Appellant.
    
      Ejectment — when the plaintiff is entitled to nominal..damages only—power of an • appellate court to reduce the damages.
    
    Where, in an action of ejectment, the plaintiff recovers but fails to prove any damages resulting from an unlawful withholding of. the land, he should be awarded nominal damages only,
    The court has power to reduce a judgment, where a referee has awarded damages to an amount not justified by the proof.
    Appeal by the defendant, Elijah Thomas, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Chautauqua on the 9th day of September, 1895, upon the report of a referee.
    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 controversy 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 the appellant.
    
      W. S. Thrasher, for the respondent.
   Hardin, P. J.:

Appellant has excepted to the referee’s findings of fact. Upon a careful perusal óf 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 Bank, 71 id. 390; Penfield v. Sage, Id. 575; Burton Co. v. Cowan, 80 id. 392; Thompson v. Vrooman, 21 N. Y. Supp. 179; Teeter v. Teeter, 47 N. Y. St. Repr. 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 find-r ings 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 casein 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.) 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.

All concurred.

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