
    Mary E. Fagan, Respondent, v. Charles E. McDonnell, Appellant, Impleaded with John Vaughan and Others, Defendants. (Action No. 1.)
    Second Department,
    October 12, 1906.
    Real property — consideration for grant of lands paid by third person — when no resulting trust, although one paying consideration put into possession — ejectment —when damage for withholding lands excessive.
    Although at common law a resulting trust arose when one paid the consideration for a grant of lands to another, such resulting trusts have been abolished by statute, and the title vests in the grantee. Constructive trusts are enforced by a court of equity, irrespective of the intention of the parties, only when necessary to prevent fraud or the abuse of positions of trust and confidence.
    An uncle paid the purchase price of lands, and had the deed made out in the name of his niece as grantee, who, on learning the facts, -executed a deed of the premises with the name of the grantee in blank, and also mortgaged the . premises. The consideration for the mortgage and also the deed were given to the uncle, who went into possession and improved the property with the proceeds of the mortgage. The uncle died without filling in the name of any grantee and without specifically disposing of the property by will,' but the widow and her successors went into possession and claimed the lands under the residuary clause. In an action by the niece for ejectment and damages, Held, that she was .entitled to recover the premises and .damages for withholding the same for six years prior to the service of the summons;
    That the plaintiff did not hold as trustee of a resulting trust;
    That no trust arose through act of parties so far executed as to take the case out of the Statute of Frauds;
    That the incomplete deed was insufficient as evidence to establish the alleged trust, and could not be added to by parol evidence;
    That the plaintiff was not estopped from claiming title, as no one had been misled ' by any act of hers; .
    That though plaintiff was entitled to recover damages .for withholding the lands for six years, that period must be computed from the time of the service of , the summons on the defendant claiming equitable title, and not from the date of a prior service upon persons not united with him in interest;
    That such damages were not measured by the gross rental value, but that there should be deducted therefrom the actual expense of repairs, service of janitors, interest ori the mortgage, etc.;
    That under the circumstances the interest on rents collected should not be computed quarterly, but only from the time of commencement of action.
    Jenks, J., dissented, with opinion.
    
      Appeal by the defendant, Charles E. McDonnell, fromat judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of January, 1905, upon the decision of the court rendered after a trial before the court without a jury at the Kings County Trial Term, adjudging plaintiff to be the legal owner of certain premises and entitled to recover possession.thereof, and awarding damages against said defendant for withholding possession,
    
      Herbert T. Ketchan [ James M. Gray with him on the brief], for the appellant. '
    
      Herbert C. Smyth [Charles C. Sanders with him on the brief], for the respondent."
   Miller, J.:

The plaintiff is armed with the legal title, and the judgment in her favor in this ejectment suit must be affirmed, unless the equitable title, js in the defendant. The-proof shows that on October’ 31, 1882, one Michael Dalton paid $800 for two parcels of land, including the one in question, and with full knowledge took a conveyance to this plaintiff, his niece, who subsequently learned of it; that the plaintiff on or about October 25, 1883, in the presence of. said Dalton, executed a deed of the premises, blank as to grantees, and on the following day her bond for $2,000, secured by a mortgage on the premises, upon which the sum of $2,000 was borrowed and used by Dalton to improve the property; that said blank deed remained unchanged in Dalton’s possession until his death, when it passed into the possession of his widow, and upon her death into that of the defendant; that Dalton occupied the property and had the beneficial usé of it until his death in 1892, whereupon'his widow, his sole devísete, succeeded to such possession and use until her death in 1894, when the defendant took possession, claiming as her residuary devisee; that the plaintiff never asserted her title or right to possession until shortly before .the commencement of this action. While Dalton had uninterrupted possession, it does not appear that he ever claimed it under an equitable title or in hostility to the plaintiff’s title; neither his will nor that of his widow specifically refers to this property.

The learned counsel for the appellant invokes the - equity powers of the court upon several distinct grounds, which I will summarize and state what seems to me the patent and conclusive answer to each, to wit: First. That the proof establishes an agreement of the plaintiff to hold the title as trustee, which has been so far performed as to take the case out of the Statute of Frauds, or at least that equity will not suffer the Statute of Frauds to be used as an instrument to perpetrate a fraud. It will be necessary to refer only to the fundamental 'error involved in the assumption that there was such an agreement, because there is not a scintilla of evidence to warrant it; on the contrary, there could have been no agreement before the conveyance of which the plaintiff was ignorant, and the subsequent conduct of the parties, upon which so much stress is placed, is as consistent with the absence of an express agreement subsequent to the conveyance as was the conveyance itself with the absence of any agreement or even knowledge on the plaintiff’s part prior thereto. Counsel asks the court to infer an agreement from the circumstances upon which he relies to take it out of the Statute of Frauds. The error of this is so patent that it is unnecessary to consider whether the circumstances relied upon would have been sufficient had the agreement itself been proved; second, that the blank deed conceding it to be insufficient to pass title (see Allen v. Withrow, 110 U. S. 119) proves the trust, and considered solely as an evidentiary fact, satisfies the Statute of Frauds; but this proposition, like the last, is based upon a false premise. It is true that the statute respecting the creation and proof of trusts (2 R. S. 134, § 6 ; Id. 135, § 7, as amd. by Laws of 1860, chap. 322, and revised in Eeal Prop. Law [Laws of 1896, chap. 517], § 207) simply enacts a rule of evidence, but the .writing relied upon must be sufficient to prove the nature and extent of the trust, and cannot be aided by parol evidence. (Cook v. Barr, 14 N. Y. 156 ; Hutchins v. Van Vechten, 140 id. 115.) The blank deed proves nothing except that at the time the plaintiff was willing to convey the property. The very fact that Dalton had this blank deed and made no use of it is suggestive to mv mind of a deliberate intent to leave the title in the plaintiff; but whatever inferences different minds might draw from the circumstance, it utterly fails to prove that there was an express contract that the plaintiff .should hold the title in trust; third, that the plaintiff is estopped from'asserting any title. This assertion also is based upon , a fundamental error. I followed the ingenious argument of counsel and have read'his voluminous brief in vain to discover a single circumstance tending to show that any one has been misled or injured by any conduct of the plaintiff, Dalton certainly was not misled when, without her knowledge^ he took title in her name, presumptively knowing that the transaction vested the title in her, and that no trust to him could result therefrom (1R. S. 728, .§§ 51-53; Real Prop. Law [Laws of 1896, chap. 547], § 74) ; he was not injured by her conduct in allowing him to have the beneficial use of it or in borrowing money upon her bond and mortgage with which to "improve it-so as: to increase the value of such .use-; and while it is asserted that he expended money in improvements in excess of the sum so borrowed, there is no proof of it, unless it can be inferred from the testimony that the property is now worth $4,500, but this increase can easily be accounted for. by the rise in values and the increase in the cost of building materials; and even if he did expend his own money in improvement's, there is not the slightest evidence that lie was induced to do' so by any promise or agreement of hers, and concededly the value of the use was much .more than the entire amount expended; besides, upon the record here, we must hold that lie acted throughout with .open eyes knowing that the title was in his niece, and Certainly neither the widow nor the defendant can claim to be injured, by the enjoyment of the beneficial use of the property.-. If I have understood the argument addressed to us by the learned counsel for the appellant, the foregoing is a fair summary of it; however, I do not understand him dogmatically to assert that any one of the several positions taken by him is invulnerable, but rather that all are ' advanced with the hope that their combined force may persuade us to impress a trust upon the plaintiff’s title so as to secure what- we may deem to be just in this particular case, and it is urged that inas.mitch as equity may imply a trust from facts, i. <?., the nets and conduct of- the parties -independent of their verbal agreements, we may imply a trust in this case without doing violence either, to the Statute of Frauds or to the statute against resulting trusts hereinbefore referred to.. The Statute of Frauds may be eliminated from the discussion because as already shown there is not a scintilla of evidence to prove an express agreement, and while I do not' question the general statement that a.trust may arise from facts, my research has failed to disclose a case, and certainly none is cited, in which a trust has been implied from the facts involved in the case at bar since the abolition of the common-law rule by the Revised Statutes (1R. S. 728, §§ 51-53). Of course at common law an implied or resulting trust would have arisen from the single fact of the payment of the consideration by Dalton and this lipón the theory that the person paying the consideration must have intended to-liave the beneficial interest, but here the statute steps in and says that no trust can result' from such a transaction, but that the title shall vest in the grantee; so Dalton, presumed to have known the law, must be supposed to have intended the result provided by the statute. I have supposed that implied trusts, to which class resulting trusts belong, always arose from the presumed intention of the parties, from some instrument which, though failing in express terms to create a trust, clearly showed such to have been its ¡purpose, from some situation in which the intention of the parties could only thus be effectuated, or from some act unecpiivocally showing such to have been the intent, and that constructive trusts, sometimes I think inaccurately termed implied trusts, were created by the courts without regard to the intention of the parties to prevent the abuse of positions of trust and confidence" and to circumvent fraud. Certainly the plaintiff is not a trustee ex maleficio / she did not obtain the title by any fraud, artifice or misrepresentation, by the misuse of any confidential or fiduciary relation, or pursuant to any agreement; and it seems to me we cannot say that the parties intended to create a trust except we do it in the teeth of the statute. The title, of course, vested eo instanti upon the delivery of the deed from Bliss. If Dalton had died the following day, no one would seriously question that the absolute title had vested in the plaintiff, because a case would then be presented barren of facts except those from which the statute declares no trust can result. It seems to. me, therefore, that the appellant must take either of two horns of the dilemma; either that the absolute title vested in the plaintiff upon the delivery of the deed from Bliss, and that she subsequently divested herself of her beneficial interest by allowing others to use the property, or else that her subsequent conduct may be referred back to the time of the deed so as to limit the estate which she took under it although she had no knowledge of it at the time of its delivery. I did not. suppose that the owner of real property could divest himself of his beneficial interest by allowing others to enjoy it, in the absence of a declaration of trust evidenced by the writing required by. the statute,, or that the nature of an estate created by deed could rest in uncertainty until determined by the subsequent conduct- of the parties; the resulting insecurity of titles attendant Upon either of these propositions is too apparent for either to he adopted in the teeth of statutes clearly defining the method by which estates in land may be created. • .

Conceding for the moment that the legal title should yield to the intention'of the parties, I am utterly unable to understand how such intention can he- demonstrated from this record, and surely nothing: short of a demonstration will suffice to overthrow the legal title. If it were clear that the parties intended a trust, and to my mind other hypotheses are equally warranted, how are we know its. duration ? To be sure, the plaintiff was silent eight years after the death of her aunt, and it may be assumed that, the defendant’s possession was under a claim of title adverse to hers; it may .also be assumed that she made the statement attributed to her by the defendant’s counsel upon the occasion of his requesting her to execute a deed, but the statute (Code Civ. Proc. § 369 et seq.) has fixed twenty years as the period required for an adverse possession to ripen into a title, and it seems to me that this statute sufficiently assures repose of titles without the intervention- of equity, particularly when the basis of such intervention is the silence and -equivocal’ statements of a woman probably ignorant of her rights.

I understand it to be conceded that had the plaintiff orally agreed subsequent to the. conveyance from Bliss, and we have seen there could have1 been no prior agreement, to hold the property in trust, such agreement would be void as within the Statute of Frauda and would furnish no basis for equitable interference, because though equitable doctrines are flexible when dealing with cases, of fraud, the breach of. a void agreement is a moral and not a legal fraud (Wheeler v. Reynolds, 66 N. Y. 227, 234; levy v. Brush, 45 id. 589); but it is urged that, as the plaintiff has. committed neither moral nor legal fraud, a court of equity may.interpose and upon facts thought to be sufficient to satisfy its Conscience impress a trust upon her legal title; The authorities relied upon in support of such dangerous exercise of remedial jurisdiction do not warrant it. Western Union Tel. Co. v. Shepard (169 N. Y. 170) did decide that a trust not dependent upon the will of the parties need not be created by . express language nor be one of the four express trusts permitted by statute, a proposition which no one questions; but that case was decided upon the terms of a reservation contained in a deed, from which a trust was implied, because only so could the reservation be given effect. No one disputes the proposition, as stated .by Church, Ch. J., in Foote v. Bryant (47 N. Y. 544), that a trust arising “ from the acts or relation of the parties to the property involved, and not upon parol agreements,” is not included in the prohibition of the statute (2 R. S. 134, § 6 ; Real Prop. Law, § 207), but it does not follow that a trust should be implied from the facts involved in the case at bar, and, indeed, the logic of Foote v. Bryant is against thus implying a trust. In that case A,” a married woman, paid the consideration for a conveyance to her husband, and united with him in a deed to their sons “ B ” and “ C,” pursuant to an agreement that they would hold the property in' trust for her, and it was conceded that while the title thus stood this agreement could not have been enforced; being by parol it ■ was void, arid as “A” was chargeable with knowledge of the absolute character of the conveyance to “ B ” and “ C,” the case came within the statute against resulting trusts, but B ” and O ” recognized the rights of “ A,” as they had a right to, and at her request conveyed to “ D,” who promised “ A ” to take and hold the title for her benefit, but without her knowledge took an absolute ^conveyance; thus the case was plainly within the exception expressly enumerated by the statute and D ” was a trustee ex maleficio. Wood v. Rabe (96 N. Y. 414) dealt with the question whether a parol agreement was within the Statute of Frauds, and while the agreement itself doubtless was void, it was held that a trust could be implied from the agreement in connection with the circumstances to prevent the abuse of a position of trust and confidence, a situation very far from the one under discussion. In Jeremiah v. Pitcher (26 App. Div. 402) there was no. question of implied or resulting trusts; - that case turned upon an express 'agreement between persons sustaining relations of the greatest trust and confidence,'which had been fully performed by one party, and, therefore, did. not come within the Statute of Frauds. In Church of St. Stanislaus v. Algemeine Verein (31 App. Div. 133) the convey-i anee involved was within the exception of the statute, for the reason that the society for.whose benefit it was taken did not know that it was'taken unconditionally and without any recognition of its ultimate rights.

I am unwilling to Vote to overthrow the legal title upon the evidence in this case, but I think that too large a sum was awarded as damages, and that the judgment should be modified in this respect. The plaintiff was entitled to recover as damages “ the rents' and profits or the value of the use and occupation of the real property - recovered, for a term not exceeding six years.” (Code Civ. Proc. § 1531.) The six-year period is to be computed with reference to the time of the commencement of the'action, so that the plaintiff may recover for six years before the - commencement óf the action and also during its pepdency. (Willis v. McKinnon, 178 N. Y. 451.) The summons was served on the defendant' McDonnell' on September 13,1902. It was served on other defendants; who were tenants, July 2, 1902, but, ás such defendants were not united in - interest with the .defendant McDonnell, we think the action was not commenced against him until the service of summons upon him. Upon the proof in. this case, that • date would certainly be. regarded as the date of the commencement of an.action against him in determining whether the Statute of Limitations had run (Code Civ. Proc. § 398), and we' see no reason why the same date should not be adopted in computing the damages provided by said- section 1531. In this respect the. court erred by adopting the earlier .date.

One witness for the plaintiff testified that the valuez of the use and. occupation of the premises was $360 a year; .a witness for the defendant testified that the rental value was $360 a . year. ' We think it plain from the surrounding, circumstances that both witnesses were referring to. gross rental value, and not to the value of the use and occupation. It. appeared without-dispute- that the total receipts from the property during "the period- for which damages were allowed were $2,472, and it is hot claimed that the property was negligently managed, nor was any attempt made' to question tlie reasonableness or necessity of the expenditures shown to have been made. The statute intends that the plaintiff shall have indemnity' (see Wallace v. Berdell, 101 N. Y. 13), and we think that, under the circumstances disclosed, the plaintiff will be fully indemnified if the value of the use and occupation is determined by deducting the'actual expenses shown to have been incurred from the gross rental value of the property, which was more than the actual receipts. However, the court did not allow an item of $82.18 for miscellaneous repairs, an item of $248.20 for services of the agent, and an item of $197.17 for services of a janitor. No reason appears why the item of $82.18 was disallowed. The other items appear to have been disallowed because there was no proof that the amount claimed was properly chargeable against the property in question, it appearing that the agent and janitor performed like services in respect of twenty-eight other pieces of property for which e'aeli received a gross sum, but the amount claimed was arrived at by apportioning the total sums among the several pieces of property. This seems to have been a fair way of apportioning the proper charge to each, and in the absence of some evidence on the -part of the plaintiff tending to prove that the sums so charged were excessive, they should have been allowed. Two other items were disallowed, one including the amounts paid for insurance, the other the interest paid on the $2,000 mortgage made by the plaintiff. These sums appear to have been disallowed upon the theory that they could be recovered on the foreclosure of the mortgage, but it is •unquestioned that the mortgage was a lien upon the premises and that the interest was due, and it is not disputed that such payments for interest and insurance were actually made. It is asserted that the defendant now controls the mortgage because it is owned by the Roman Catholic diocese of Brooklyn, but I fail to perceive how that can affect the question, or why the defendant should not be reimbursed in this action; he doubtless saved the plaintiff’s property from a foreclosure, and should not be driven to another action to recover proper charges against the property paid in good' faith. The court also allowed interest computed on quarterly rests, amounting to the sum of $848.60. It seems that interest may be included where the jury is of opinion that it is necessary to complete indemnity (Vandevoort v. Gould, 36 N. Y. 639), and there is authority for computing interest in such case upon, quarterly payments when reckoned upon rents actually received. (Jackson v. Wood, 24 Wend. 443.) It is-within common knowledge that the full rental value of real property of the kind involved is rarely received throughout a period of several years. The value of the use and occupation hereinbefore stated is more than the defendant has actually received, and we think complete indemnity will, be afforded if interest is computed only from the time of the commencement of the action. Upon this basis I have computed the sum due the plaintiff at the time of the judgment to be $1,19-2.32, arid advise that the judgment be reversed and a new trial granted, with' costs to abide the event, unless the plaintiff stipulate to reduce the recovery to said sum, and in that event, that .the judgment as so modified be affirmed, without costs of this appeal to either party.

Hirschberg, P. J., Woodward and Rich, JJ., concurred ; Jenks, J., read for reversal. .

Jenks, J. (dissenting):

• I dissent and vote for a reversal and a new trial. Our statute ' that abolishes a trust arising upon proof of the payment of the consideration was aimed, only at the commón-law trust which resulted from.the fact of such, payment. (Carr v. Carr, 52 N, Y. 260 ; Woerz v. Rademacher, 120 id. 67.) -Resulting trusts are not prohibited by our statute, but are well recognized. ( Western Union -Tel. Co. v. Shepard, 169 N. Y. 170,182.) “Resulting trusts arise ' where the legal estate is disposed of or acquired, not fraudulently, or in the violation of any fiduciary duty, but the intent in theory of equity appears or is inferred or assumed from the terms of the disposition or from the accompanying facts and circumstances that the beneficial interest is not to go with the legal title.” (Pom. Eq. Juris. [3d ed.] § 155.) Such á trust may be established by parol evidence. (Foote v. Bryant, 47 N. Y. 544.) In the language of Church, Oh. J., in that case : It arises, “ not upon the verbal arrangements, but upon the facts.” (Sée, too, Wood v. Rade, 96 N. Y. 414; Fowler Real Prop. Law [2d ed.], 657, citing authorities.) Professor Reeves, in his -work on Real Property (§ 360, note a), after an exhaustive review of the subject, states his conclusion, which seems to me cogent and sound : Thus, while the primary and original purpose of this section of the Mew York Statutes of Uses and Trusts was to prevent the indirect creation and existence of what would be in effect passive express trusts, the courts have thrown the safeguard of a, wise construction around it, and so prevent it from becoming an instrument of fraud or injustice. They also raise a trust, notwithstanding the statute, where it appears from the instrument of conveyance, or from some other instrument, or from clear and explicit evidence, that such was the intention of the parties; cases in which the transaction is relieved from the effects of a secret trust.” I think the mere fact that the plaintiff did not know of the conveyance to her until after it was made did not in the eye of the law arm her with the legal title as against her uncle, who paid the consideration money so as to forbid the establishment of a resulting trust in his favor and in favor of those standing in his shoes. The “ transaction ” was not the conveyance as an isolated fact, but that conveyance coupled with her knowledge thereof, and the policy of the law is to let in evidence of all the facts which were substantially contemporaneous with the transaction, grew out of it or were articulated with it.

The plaintiff was the unmarried niece of him who paid the entire consideration. She lived in 1ns city and on- friendly terms with him. Mo presumption of advancement arose from their relationship. (Perry on Trusts [5th ed.], § 144, and authorities cited ; Beach Mod. Eq. Juris. § 221 .j. The only deed produced was evidently returned to her uncle after record and had always been in his possession or in that of those succeeding him, or under his control. Shortly -after she learned of the conveyance the plaintiff executed and delivered to her uncle a deed of conveyance in blank without receiving any consideration therefor and fully understanding the possible effect thereof. This deed always remained in his possession, and there is no proof that the plaintiff ever sought to recover it, to abrogate it or to do anything which in any way, so far as she was concerned, weakened or sought to weaken its potentiality. Upon the next day she mortgaged the property and instantly turned over the proceeds to her uncle. He improved it at large outlay in excess of those proceeds. He lived in the house built thereon and used other parts of the premises as improved fo.r his. business. She never gave the property any concern ; she never was consulted. It does not .appear that she,ever made any inquiry or suggestion touching it. She never paid a penny for interest, taxes or repairs. It does not appear that she ever asserted any title to the land or any right or interest therein. She never received any rent or profits, asked for them or asserted any right to them. This condition of affairs continued for ten years, until.her uncle died, and then when under his will her aunt succeeded, that condition continued until 1894, and then when the aunt died and left her residuary estate to the defendant, as head of the diocese of Brooklyn, he, unchallenged, entered into possession and remained in unquestioned possession and in absolute control until 1902. And it was only when this defendant, after six years’ unquestioned, undisturbed, beneficial enjoyment, having acquired the mortgages, requested her to perfect the title by inserting his name as grantee in the deeds, which she had executed and delivered to her uncle years before, did she depart from absolute acquiescence throughout all these many years by the institution of this and similar actions. There is one bit of evidence that is, however, not undisputed. The counsel for the defendant testifies that when he called on her to ask perfection of the title she said that “ her uncle had promised to leave her the house in which he lived ” when he died. So far, then, as the outside- world was concerned and so-far as she herself was concerned even in her relations with her uncle, he entered into possession and throughout his life absolutely dealt with the premises as if his own. Ho act of hers throughout his life betokens that she ever thought that she had any interest, present or future, vested or contingent, in the premises. She. did exactly as. she was told, even to the full execution and acknowledgment. of a deed which, so far as she. was concerned, made it possible to divest her of any title whatever. Her self-effacement could go no further. Every fact testified to by her indicates that she held' the title as nominal grantee. Her entire conduct throughout- seems consistent with-that status. Is it conceivable that if shé was the owner of the property even if she would have so stood at gaze during her uncle’s life and then during his wife’s life for years, she would not at least have made some assertion of her rights or given some notification of her interest to the defendant ? She was not bound to him by any tie or, so far as appears, even constrained by any acquaintance. Is it natural that the real owner and the record owner as well of realty should stand by in silence to see a stranger enter into her premises, enjoy them and profit from them for six years ? It is true that the court finds that the defendant entered into possession without' the consent of the plaintiff and continued without her permission,, but so far as the evidential fact is concerned, she testifies: “Since the time of Bridget’s death I heard that Bishop McDonnell was in possession of the property, of the lands themselves. * * * I knew that from a short time after Bridget’s death down to the present time. 1 knew that from Bridget’s death down to the time I commenced these actions the Bishop was paying the expenses of the property and taking all of the rents.” The learned Special Term finds that she did not have any conversation with the defendant’s counsel or make any statement to him. I am inclined to think that finding was by inadvertence; but in any event it seems to me that it cannot stand : First, because the defendant’s counsel as a witness testifies to it positively ; second, because the plaintiff does not deny it, and also testifies: “ I didn’t have much conversation with Mr. Owens,” thus admitting that she had some conversation with him; and, third, because opposed to this is only the general statement of her brother-in-law that she (the plaintiff) didn’t say anything at that time under his instructions. If she said “ that her uncle had promised to leave her the house in which he lived” when he.died, the remark is significant almost to the verge of an admission. Such delay with such full knowledge as appears in this case, were the plaintiff a cestui gue trust seeking to enforce her rights against a nominal grantee, would be almost, if not altogether, fatal to her claim. (Hill Trustees [4th Am. ed.], 410.) I am well aware of the difference in this case due to the fact that the plaintiff is armed by the legal title, and yet it seems to me that her delay even under the circumstances has some significance. Many of these facts are similar to those in Church of St. Stanislaus v. Algemeine Verein (31 App. Div. 133; affd., 164 N. Y. 606), and I think are stronger.

Judgment reversed and new trial granted, costs to abide the event, unless the plaintiff stipulate within twenty days to reduce the recovery to the sum of $1,192.32, in which event the judgment as thus modified is affirmed," without costs of this appeal to either party. 
      
       See 1 R S. 738, § 55, as amd. by Laws of 1830, chap. 330, § 10, and revised in Real Prop. Law, § 76.— [Rep.
     