The defendant in this action, relying upon the ability of the plaintiffs to give him a legal title after the contract of sale and purchase, made improvements upon the premises which involved a large outlay. He was under no obligation by his contract to do it, and it was done, therefore, for his own benefit and advantage. The plaintiffs were not chargeable with bad faith or fraud. There is nothing shown which warrants the belief that they knew that they had no right to convey, and they did not refuse to do so. On the contrary, they were anxious to complete the contract, but the defendant refused, alleging as a reason that they could not, under the will which made them executors and trustees, convey a good title. In this he was right. His expenditures were premature, however. He should have made his examination of the plaintiffs’ power and of the testator’s title prior to such outlays as he made, and in that way protected himself against loss. He cannot now be remunerated for the improvements made. The laws of this state, as expounded on that *409subject, are adverse to his right thereto. Damages in such a case as this to the vendee, where the contract of sale was made in good faith and without fraud, and where there was no refusal to perform, cannot be recovered. The rules of the civil law to the contrary do not prevail in this state (Putnam agt. Ritchie, 6 Paige, 390; Conger agt. Weaver, 20 N. Y. R., 140; Gilbert agt. Peteller, 38 id., 165). The defendant should be allowed, however, against the sum of $180, found to be the rental value of the premises while occupied by him, the taxes for 1868,1869 and 1870 paid by him. The sum also of $500 paid on account of the purchase-money and the interest paid on the balance of the purchase-money, the several amounts of which are set forth in the schedule annexed to the referee’s report. The order to be entered herein on the referee’s report, therefore, must conform to these views. Whatever conclusions I might adopt were the question new, I consider myself advised and therefore controlled by the authorities cited, and the cases in them considered and approved.
Ordered accordingly.
Brady, J.The proceeding before the referee was not a trial within the provisions of the Code (Taaks agt. Schmidt, 24 How. 340; Randolph agt. Foster, 4 Abb. 262). The trial fee allowed was, therefore, not taxable.
The allowance of sixty dollars may stand. This is not an action for an adjudication upon a will or instrument in writing. The contract of sale was not in dispute in any respect, and the question presented, upon examination of the will, which was part of the plaintiff’s Case, was incidentally raised and disposed of. The plaintiffs claimed that under it they had the power to sell and convey, which the defendant denied. The action being one for specific performance, it became necessary for the plaintiffs to establish their right to • convey, and, for that purpose, they produced and relied upon the will. It was thus introduced as evidence and considered in that relation. If the action were one to obtain an adjudi*410cation upon a will, or was one of the actions named in section 308, the defendant could not be allowed costs, as I understand the decision in Downing agt. Marshall (37 N. Y. Rep., 380). This is not one of those actions. It is for specific performance, and is a difficult case in which a defense was interposed. This brings it within section 309 (See Seguine agt. Seguine 3 Abb., N. S. 442).
Ordered in accordance with these views.