Plaintiff’s assignor, -Blumenthal, and • defendants, on April 6, 1905, entered into a contract for the sale of land devised to the latter by John McCullough, their father, deceased in 1898. Before closing title it was discovered that a-notice of Us pendens affecting the land had been filed on February 6, 1897, in an action .of ejectment brought by-one McConnell against John McCullough. This resulted jn adjournments of the closing of- title, one-of which Was conditioned upon plaintiff’s paying $2,500 in addition to $400 theretofore paid, until May 27,1905, when both parties were willing, and ready to perform'save as-the pending action prevented. The present action was begun June 2,1905. The relief asked is for specific performance, or, if that cannot be had, for judgment for damages, the amounts ad vanced and expenses. The complaint alleges that on the adjourned day for closing “ the defendants were unable and refused and still continue to refuse to execute and deliver such conveyance' in the manner and form provided for in and by the agreement herein set forth.” ' ■ The first trial was had in October, 1905, and judgment resulted for plaintiff for specific performance within twenty days after-the final determination of the ejectment, action' -favorably to defendants, and, in case.of adverse judgment, for a money judgment for $3,025 and . interest. This judgment was reversed by the Court: of Appeals upon the ground that it was anticipatory of conditions not existing at. the. time of trial.. (See 114 App. Div. 920; revd., 189 N. Y. 481.) A' new trial was ■ had in January, 1908, and plaintiff recovered judgment. on January 10, 1908, for specific performance within twenty days after final, determination favorable, to defendants of the McConnellMcCiillough action, or for $.6,025 and interest if suclnfinal determination favored McConnell. This sum is composed of payments *75made on the contracts, expenses, and $3,000 damages. Thus the trial court has again done what the Court of Appeals condemned in Rosenberg v. Haggerty (189 N. Y. 481), The McConnell case was tried December 17, 1906, and judgment entered January 4, 1907, dismissing the complaint on the merits, and that judgment affirméd by this court in April, 1908 (McConnell v. McCullough, 125 App. Div. 930), is now on appeal to the' Court of Appeals, taken some two years ago but not yet placed on its calendar. So that, at the time of the first trial of this action, the McConnell case had not been heard, and at the date of the last trial was in the condition indicated. Although that action was at issue in 1897, it made no further progress, and the plaintiff herein, in default of the defendants taking such action, moved to dismiss the action for failure to prosecute, but the motion was denied upon the condition that McConnell proceed with the action before January 1, 1906, or make as mhcli progress es possible. The defendants herein, by their present attorney, opposed a motion made by McConnell in December, 1905, to substitute the defendants in place of John McCullough, deceased, and that the action be “ divided into two actions, one to recover the possession of said real'property with damages for the rents and profits and the use and occupation thereof, accruing after the death of said John McCullough; the other to recover damages for use and occupation and for the withholding of said premises prior to the death of said ” McCullough. After this motion was granted, the defendants refused to appear, but service of the summons upon them was completed by January 19, 1906. The case was noticed for trial by both parties, and after having been marked off was placed on the calendar by McConnell on five days’ notice, and although defendants appealed from an order denying their motion -to strike it from the calendar, and moved for a stay pending such appeal, which was denied, the case was tried on December seventeenth, as stated. The court in awarding $3,000 damages to. the plaintiff for the loss of his contract, must have found that in making the contract and. in discharging its obligation the defendants were guilty of misconduct equivalent to fraud. The complaint alleges no misconduct in making the contract, nor in their failure to fulfill, beyond their inability and refusal to perform. There is no charge or sufficient evidence that any of them knew of *76the McConnell action. Upon the trial one defendant, John F. McCullough,. testified tliat he knew • nothing of the McConnell action, and the single specific impeachment of this evidence suggested is his affidavit made May 25, 1905, wherein he states his recollection as to his father’s litigations, and, among'other things, says: “ That years later he heard-of the filing of a Us pendens in the" action of McConnell against McCullough which was brought shortly before the death of his father.” This indefinite statement is not so inconsistent with his testimony on the trial that he knew'nothing of the Us pendens until the matter came , up pending the closing of title, as to authorize the conclusion of fraudulent conduct on his own and his brothers and sisters’ part in.malting the contract. There should be ample affirmative evidence to warrant a finding of fraudulent conduct on the part of devisees who might well be ignorant'of a dormant action brought against their father, in which they had no participation. The, remainirlg question is whether they were guilty of such misconduct after, the making of the contract. as would subject them to damages. I do not perceive that their conduct subsequent to the execution of the contract increased or diminished the extent of their liability, unless they were guilty of bad faith in refusing to fulfill. The plaintiff’s proposition is that the defendants should, although not parties, have moved to dismiss the McConnell action, and upon failure have offered themselves as defendants in their father’s place and hazarded an immediate trial. The trial was not long delayed, but. I do not regard it'as legal misconduct-that they did not in haste invite the peril of losing the land and paying, .damages, and that they resisted the McConnell effort to subject them to such .litigation and costs.- The.present plaintiff testified that he was willing to a,wait the'issue, and so offered. But his promise was gratuitous and capable of instant withdrawal, while the defendants were exposed to protracted litigation. In short, as plaintiff would have it, a party to a contract for the sale of land, unable to fulfill through no fault of his own, must take'up'his ancestor’s litigation, involving damages, and carry it forward, or be condemned for bad faith and to the consequent payment of damages. The defendants have not been shown unwilling to pay the money received by'them. This restitution, with interest, wás due the plaintiff as the alternative of specific performance.-
*77The judgment should be reversed and new trial granted, costs to abide the final award of costs.
Hirschberg, P. J., Woodward, Jenks and Burr, JJ., concurred.
Judgment reversed and new trial granted, costs to abide' the final award of costs.