Opinion
December, 1914.
This case differs from Paine v. Upton ( 87 N.Y. 327) and Mills v. Kampfe (202 id. 46). In Paine v. Upton the negotiation began by an inquiry as to the number of acres, and was maintained on a cash acreage basis. In Mills v. Kampfe the land had been surveyed and a reference to this survey made, with other indications that quantity was essential. Hence, the learned trial court declined to find that the negotiations were on a quantity basis. This was an exchange where an incumbered city property is traded for vacant lands. The figures of value in plaintiff's mind may have had no actual counterpart on the other side. In such exchanges brokers do not always cut down the estimates they receive but instead, mark up what they have to offer. After the Jericho lot had been deemed inadequate, this Brookhaven woodland was offered. The contract speaks of forty-five acres "more or less," and the deed says "containing by estimation 45 acres, be the same more or less." The bounds stated lack any linear dimension. The physical boundaries were old ditches, broken fences and remains. The vendors had no knowledge of the existence of any survey, but merely copied in their deed the description which they had received. In such a trade damages cannot be reasonably assessed until we reach a common denominator of value. Where the deed was for a nominal consideration extrinsic evidence of its land value is essential. Whether or not these were bulk transactions, and not on an acreage basis, the defendants rightly had judgment, as there was no proper evidence to determine the damage by the reduced areas. Hence, the judgment should be affirmed, with costs. Jenks, P.J., Thomas, Rich and Stapleton, JJ., concurred. Judgment affirmed, with costs.
Special Rule for Applications for Leave to Appeal to this Court.
Applications to a justice of the Appellate Division of the Second Judicial Department, under section 1344 of the Code of Civil Procedure, for the allowance of an appeal to be taken to such Appellate Division from the determination of the justices designated to hear appeals from the Municipal Courts of the boroughs of Brooklyn, Queens and Richmond, may be made upon any motion day within two months after such determination, unless the determination is made within two months of the last motion day prior to the first day of July, in which case they may be made on the first motion day in the September term; and must be upon notice of two days to the opposite party or parties, and a note of issue filed, and the same put upon the calendar of motions in the manner provided by rule VI of Calendar Practice Rules of the Appellate Division of the Second Judicial Department relating to the hearing of motions.
The papers upon which such application is made must contain a copy of the opinion of the justices below, if any, a copy of the record in the court below, a concise statement of the grounds of alleged error, and proof of due service of the papers upon which the application is founded. Upon the calling of the motion calendar, such applications must be submitted without argument. Before such application can be entertained, it must first have been made to the justices by whom the determination was made, in the manner provided by rule IX of the Appellate Term of the Supreme Court in the Second Judicial Department, and have been by them denied. If the appeal be allowed, the papers must be printed and placed upon the calendar as provided by rule 41 of the General Rules of Practice.