
    John Donovan, Resp’t, v. Thomas E. Wheeler et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    1. Cloud on title — Deed not delivered.
    In an action to set aside a deed as a cloud on title, the evidence tended to show that the deed had never been delivered, and was intended to be delivered only in exchange for a reconveyance, the plaintiff’s intention being to have it appear on the record that defendant was the owner, so as to facilitate a sale by plaintiff as broker. Held, that such a transaction should not be permitted to stand.
    2. Same — Evidence of gift.
    On the trial defendant claimed a gift of the premises. The only allegation on that subject in the answer was that after the conveyance plaintiff had declared to defendant that the grant was effectual, and an absolute gift of _ the real property to defendant. Held, that this was insufficient to authorize the admission of evidence to prove and establish a gift of the premises. °
    3. Same — Costs—Extra allowance.
    In an action to set aside a deed as a cloud on title, where no sum of money is claimed or recovered, an extra allowance cannot he granted.
    Appeal from judgment rendered at special term.
    
      James Kearney (Jas. W. Ridgway, of counsel), for app’lt T. E. Wheeler; John H. Regan, for app’lt Mary A. Wheeler; John B. Shanahan, for resp’t.
   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 recor thereof be cancelled.

The claim of the plaintiff is that the deed was executed to sub-serve 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 term, 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 set up 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, vrhich 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 óf 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. Saratoga County 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, without •costs.

Judgment modified by striking out $200 from the costs, and •affirmed as modified, without costs of appeal.

Barnard, P. J., not sitting.  