Gildersleeve, J.In April, 1904, the plaintiff’s assignors entered into a contract with defendant by which the latter agreed to convey to said assignors, as vendees, two lots of land in Bowne park, Blushing, L. I., for the sum of $500. The legal title to the lot was not in the name of the defendant nor was he the owner thereof. The de*669fendant was unable to complete the contract by making a conveyance of the property. The court below held that the defendant was guilty of fraud in procuring the contract and awarded the plaintiff $364 damages. The judgment is not supported by the evidence. There is not sufficient evidence to sustain a conclusion that the vendees were induced to enter into the contract by any fraudulent representations of the defendant. It appears, very clearly, from a careful consideration of all the evidence, that the defendant acted in good faith and believed, when he entered into the contract, that he would be able to comply with its terms and convey a good title to the vendees. It further appears that the fair market value of the lots in question was not in excess of the value which the plaintiff’s assignors agreed to pay. Under these circumstances the measure of damage is the amount paid on account of the purchase money and such expenses as were reasonably incurred in the examination of the title. Northbridge v. Moore, 118 N. Y. 422. Fifty-seven dollars was paid on account of the purchase money and $50 expense incurred in the examination of title, amounting in all to $107. The interest is, approximately, $13 and the costs of the court below $27.
The judgment should be reduced to $147, and as thus modified affirmed, without costs.
Davis and Clinch, JJ., concur.
Judgment reduced to $147, and as thus modified affirmed, without costs.