
    John Fonner, Appellant, v. Hannah Johnson, as Administratrix, etc., Respondent.
    (Argued. September 20, 1879;
    decided November 11, 1879.)
    This was an action of trespass upon lands, brought originally against John Johnson, who died pending the appeal to the General Term. Plaintiff claimed title under a conveyance from the hems of one Locke. Defendant claimed that he was in lawful possession under a parol agreement for the sale of the land to him by said Locke. The action was tried in connection with the case of Qhadwiclc v. Fonner, reported on appeal in 69 N. Y., 404.
    Upon the trial defendant’s evidence was to the effect that the parol contract was for the sale of the land at twelve dollars per acre, that defendant entered under the contract, made improvements, paid the purchase price and continued in possession. Plaintiff’s evidence was to the effect that the purchase price was thirty dollars per acre, that defendant did not pay and abandoned the contract giving up possession. Defendant was recalled and asked whether he ever agreed to pay thirty dollars for the land. This was objected as incompetent under section 399 of the Code of Procedure, Locke being then dead. The objection was overruled and exception taken. Defendant answered, “no,” The referee found that defendant had lawful possession, at the time of the alleged trespass. Field, that the exception was untenable, as the evidence was entirely immaterial. That the referee having found that defendant was in lawful possession, judgment for defendant must necessarily follow, and it was not material what the contract price ivas or whether it had been paid.
    The case of Ghadwick v. Fonner (supra), distinguished.
    
      Lewis <& Gurney for appellant.
    
      Wm. 3. Farnell for respondent.
   Per Curiam

opinion for affirmance.

All concur.

Judgment affirmed.  