
    (67 Hun, 68.)
    DONOVAN v. WHEELER et al.
    (Supreme Court, General Term, Second Department.
    February 13, 1893.)
    Í. Action to Set Aside Deed—Plea of Gift.
    Plaintiff sued to set aside a deed which, as alleged, he had never intended should operate as a grant. Defendant, after denying in his answer that plain-' tiff had never so intended, alleged that the grant had been declared effectual, and an absolute gift, by plaintiff. Held, that the gift was not so pleaded as an independent defense as to justify the reception of evidence to sustain it.
    2. Costs—Additional Allowance.
    A case in which no specific sum is claimed, and nothing involved but the validity of a deed, which is of no particular value, is not a proper case for the additional allowance of costs, nor does the fact that the property described in the deed will be remotely affected justify such an allowance.
    Appeal from special term, Queens county.
    Action by John Donovan against Thomas E. Wheeler and others to set aside a deed given by plaintiff to defendant, which plaintiff, as alleged, never intended should operate as a grant. Judgment for plaintiff. Defendants appeal.
    Modified and affirmed.
    • Argued before DYKMAN and PRATT, JJ.
    James Kearney, (John W. Ridgway, of counsel,) for appellant Thomas E. Wheeler.
    John H. Rogan, for appellant Mary A. Wheeler.
    William J. Gaynor, (John B. Shanahan, of counsel,) for respondent.
   DYKMAN, J.

This action is brought to obtain a judgment of this court which shall determine that a certain deed of conveyance of real property was not delivered, and the title to the premises therein described was not conveyed, to the defendant Thomas E. Wheeler, by the said deed, and that the deed and the record thereof be canceled. The claim of the plaintiff is that the deed was executed to subserve a special purpose, which was not carried into execution, and that the deed was not delivered, and there never was any intention to vest the title absolutely in the grantee. The cause was tried before a judge at special terra, who found the facts in favor of the plaintiff, and directed a judgment in his favor for the relief demanded in the complaint. The defendants have appealed from the judgment, but we find the appeal destitute of merit upon the main question. The testimony on the part of the plaintiff was contradicted by the defendants, but we think the trial judge took the correct view of the evidence, and the circumstances surrounding the transaction. The appellants contend that an error was committed upon the trial by the exclusion of testimony tending to prove and establish a gift of - the premises to the grantee. That testimony was excluded because no such defense was set up in the answer, and we think that the trial judge gave the correct construction of the answer, and that it manifests no intention to setup a donation of the premises. True, the fourth clause of the answer contains a statement that the plaintiff, after the conveyance, declared to the defendant that the grant was effectual, and an absolute gift of the real property, from the plaintiff to the defendant; but that is but the statement of an evidentiary fact, by way of enlargement of the first part of the paragraph, which denied that the plaintiff never intended to grant the premises to the defendant. It falls far short of an independent defense, which was necessary to the reception of the testimony.

The trial judge made the plaintiff an additional allowance of $200, which was erroneous. Such allowances are made in a proper case, based upon the sum recovered or claimed, or the value of the subject-matter involved. In this case no sum was claimed or recovered, and nothing was involved but the validity of a deed, and that had no value. The fact that the determination of the question remotely affected the property described in the deed is not sufficient to justify an additional allowance, under the statute. Conaughty v. Bank, 92 N. Y. 404. The judgment should be modified by striking out the $200 from the costs, and as so modified affirmed, without costs to either party upon this appeal.

PRATT, J.

This is an action brought to set aside a conveyance of certain land in Queens county, executed by the plaintiff to the defendant Thomas E. Wheeler, upon the ground that the deed constitutes a cloud upon the title. Upon the trial the defendant claimed that the deed was a gift, and, further, that it was executed to perpetrate a fraud upon a third party. It clearly appeared from the evidence that the deed was never delivered to the defendant, and never was intended to be delivered, except simultaneously with a deed from the defendant to the plaintiff for the same property. The intention of the plaintiff was to have it appear upon the records that the defendant was the owner, so as to facilitate a sale thereof by the plaintiff, as broker, while in fact it was his own property The defendant paid nothing for the conveyance, and in fact no fraud was proved in the transaction. The proof was all one way,—that the plaintiff never intended to vest the title to the property in the defendant as a gift, but the motive seems to have been a matter of convenience to the plaintiff, to enable him to appear as a broker in making a sale. To permit such a transaction to stand as a valid gift would be a gross fraud. There being no delivery of the deed, there was no valid conveyance. Judgment affirmed, with costs.  