
    James M. Horton, Resp’t, v. William H. Childs et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    Contract—Breach—Damages.
    On the foreclosure of a purchase money mortgage the defendant counterclaimed damages sustained by a breach of the vendor of an agreement to remove certain railroad tracks which were upon the premises, by reason of which he claimed to have lost a sale of the property to one B. The court refused to find that defendant had entered into a contract with B. for the sale, the contract not having been entered into in good faith but for the purpose of proof of damages. Defendant testified ,to a deterioration in value, but was contradicted by his affidavits made at other times. Reid, that defendant was only entitled to nominal damages for the breach of the agreement.
    Appeal from judgment of foreclosure and sale. See 27 N. Y. State Rep., 377.
    
      S. C. Baldwin, for app’lts; J. M. Scribner, for resp’t.
   Van Brunt, P. J.

In the disposition of this appeal it is not necessary to consider the subjects which were treated of when the case was before this court upon the former appeal.

The record presented is so entirely different in its nature in one material point, that only one question need be considered or discussed.

Upon the previous appeal it had been found ‘by the learned judge who tried the cause that the defendant Bauer had entered into a contract of sale with one Borger for the premises in question for a sum of money considerably in advance of the purchase price given by Bauer to the plaintiff Horton; and that Borger had rejected the title because of the existence of incumbrances upon the property which Horton had agreed to remove.

Under these circumstances the court held’ that if there was a violation of Horton’s agreement, as there appeared to be, Bauer was entitled to recover damages.

As the case is now presented to the court however there is no finding that Bauer entered into this contract with Borger. Upon the contrary there is a refusal so to find, which refusal is undoubtedly based upon the conclusion of the learned judge who tried the case the second time that this contract was not entered into in good faith but was only gotten up for the purpose of proof of damages in favor of Bauer. And we think upon the examination of the evidence that this conclusion is amply supported by the proof. The circumstances of the entering into the contract, the limitation upon the counsel for the purchase in reference to the objections which he was to take to the completion of the title, and the whole atmosphere and surroundings of the case seem to lead to the belief that this was not a bona fide contract which in any way tended to establish the value of the property or form any foundation for damages because of the alleged breach by plaintiff of his agreement

Under these circumstances, there being no proof of damage, there was nothing upon which the court below could found a judgment that damage had been sustained except in a nominal amount.

It may be said that the defendant Bauer swore to the value of this property and that he was a competent witness upon that point, and that his evidence shows that the property had deteriorated in value.

But it seems to us that the evidence given by this witness was ■completely shattered by the production of affidavits wherein he had sworn when it was for his interest so to do that the property was worth the full amount which Borger had agreed to give; but when it is his interest to make the property of as little value as possible then his oath seems to be to that effect.

We cannot find, therefore, from the record that the defendant Bauer sustained any damage even if the plaintiff has technically violated his agreement in regard to the encroachment of the tracks of the Eighth Avenue Railroad on the property in question.

The judgment should be affirmed, with costs.

Daniels and O’Brien, JJ., concur.  