
    Clarence Goff, Appellant, v. Raymond Webb, Respondent.
    Third Department,
    December 30, 1946.
    
      Woolsey & Woolsey, attorneys (A. G. Waldo of counsel), for appellant. 0
    
      Joe 8chápiro, attorney for respondent.
   Per Curiam.

Appeal by the plaintiff from a judgment which, among other recitals, states: “ the Court having returned its decision on the 11th day of November, 1944, dismissing the complaint and the defendant’s costs having been taxed at the sum of Seventy-two Dollars and 30/100 ($72.30), it is Ordered * * * ” that the defendant recover the amount named. The decision to which reference is made, is phrased as an opinion and states that the action was brought to recover the purchase price of a parcel of land in the town of Sullivan, Madison County, N. Y. “ That tract is separated by a highway dividing it into two parcels, with roughly 60 acres lying north of the highway and 20 acres to the south.” It determines that “ Title to the 60 acre parcel is in the defendant, and title to the 20 acre parcel is in the plaintiff, pursuant to conveyances from the County of Madison. There is no evidence that the defendant is in possession of the 20 acre parcel, and no allegation in the complaint of a demand and refusal to surrender, if he is.” The appellant as a prayer for relief in his brief argues “ The judgment of the Trial Court should be reversed, and the plaintiff granted judgment, if not for money due, declaring his title and granting him possession of the land and buildings not covered by the tax deed describing 60 acres * * This, amplified by the argument, reflects the position of the appellant, and this court is asked to reverse, modify and remit. The complaint pleads an “ oral agreement ” to purchase land and to pay therefor $1,100. The prayer for relief therein “ demands that if the defendant denies the oral contract herein above set forth, or pleads the Statute of Frauds, that plaintiff recover of the defendant possession of said property and the reasonable value of the use of the premises * * The trial court in its decision or opinion recites that defendant-respondent received a tax deed of the sixty-acre tract more than three years ago and that the appellant is divested of ownership under the authority of Mabie v. Fuller (255 N. Y. 194).

With the record as indicated, this court may not amend the proceeding had in the trial court to permit the judgment more accurately to reflect the determination of the court. The respondent is entitled to an affirmance of the judgment with a modification that will permit the appellant to proceed in the trial court to obtain a modification in accordance with his prayer for relief.

The judgment should be affirmed, with costs, and matter remitted to permit plaintiff-appellant to apply to the trial court for amplification and amendment of the judgment or other proceedings.

Hill, P. J., Heffernan, Brewster, Foster and Lawrence, JJ., concur.

Judgment affirmed, with costs, and matter remitted to permit plaintiff-appellant to apply to the trial court for amplification and amendment of the judgment or other relief in accordance with the Per Curiam opinion.  