
    FINCH, Appellant, v. FAY, Respondent.
    (Supreme Court, Appellate Term.
    November 18, 1903.)
    Action by John Finch against Mary Fay. From a judgment for defendant, plaintiff appeals. Affirmed.
    Wm. R. Bronk, for appellant. M. J. Early, for respondent.
   BISCHOFF, J.

The evidence of the witness Fay supports the conclusion that the offer to remove the encroachment, made ostensibly in the defendant’s behalf, was definitely refused by the plaintiff’s agent, who stated that he would not conclude the loan in any event upon the basis of the application. There is nothing to show that the proposed lender had rejected the loan before this conversation took place, and the proof sufficiently indicates that it was while negotiations were still open that this offer was made and refused. The evidence of plaintiff’s agent’s proposal to make two loans, aggregating the amount applied for, instead of the single loan as agreed, was offered to show a refusal to perform the contract as made, and no attempt to vary the terms of the writing was in any way involved. The point that the justice erroneously admitted evidence of a later placing of this loan has no foundation in the record, since no evidence to this effect was actually brought out, and the question, when asked of a witness who had knowledge of the matter, was included. The judgment is supported by evidence which discloses the plaintiff’s refusal to make or to conclude the loan, with repudiation of the defendant’s offer of a marketable title, and there is no ground for our disturbing the determination in favor of the defendant. Judgment affirmed, with costs. All concur.  