
    TRAYNOR, Respondent, v. MURTAGH et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    November 20. 1896.)
    Action by Frank Traynor against Charles E. Murtagh and others.
    Philip L. Wilson, for appellants.
    Henry A. Powell, for respondent.
   PER CURIAM.

The plaintiff has recovered a verdict of $400 damages against the defendants by reason of their failure to allow him to complete a contract, into which he had entered, to move their house back from the front to the rear portion of a lot on North Second street, in the Eastern district of the city of Brooklyn. He alleged that the lot at the. rear was not wide enough to receive the building, and it appears to have been conceded that, if such were the fact, the defendants were liable, inasmuch as no exception was taken to the instruction, given to the jury by the learned trial judge, to the effect that, if the plaintiff had been prevented from moving the house back because the defendants did not have land of sufficient width to move it back upon, then the plaintiff was entitled to a verdict. Whether there was land enough in the rear for the house to stand on, or not, was a question of fact for the jury, the correct determination of which was largely dependent upon the two surveys which yielded " different results,—one favorable to the contention of the plaintiff, the other to that of the defendants. The appellants insist that the plaintiff’s survey should have been excluded, because the surveyor did not take the line mentioned in the conveyances for his starting point; but we are not able to say, from this record, either as matter of law, or as a conclusive inference of fact, that such is the case. The plaintiff’s survey is also criticised because it was made long after the time when the house was to have been moved; but this fact did not render it inadmissible, inasmuch as there was other evidence in the case tending to show that, at the time of the survey, the encroachment on the rear of the lot, which rendered it too narrow to receive the house, was just the same as it was when the contract concerning the removal of the building was made. The issues were fairly and clearly left to the jury by the presiding judge, and we cannot interfere with the verdict. Judgment and order affirmed, with costs.  