Bishop v. Decker

Putnam, J.: This ease differs from Paine v. Upton (87 N. Y. 337) 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 891 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 then* 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.