This is an- action by a vendee for the specific performance of a contract-for the sale of premises No. 140 East Eightieth street,, and in the event that defendant is unable to perform, for the recovery of the down payment, interest and damages. The • contract was in writing and bears' date the 6th . day of -November, 1905. The “ Estate of Hannah Asiel ” is designated as party of the first part and- the plaintiff is-the party of the second.part.. It is signed-by the plaintiff and by “ Jacob Asiel, Administrator of- the Estate of Hannah Asiel.” Hannah Asiel, who was the wife of Jacob Asiel, owned the premises and died intestate. The' plaintiff made a down, payment of $735. At the time fixed for closing the contract plaintiff tendered performance and • demanded that defendant perform. The defendant failed to perform, and assigned as a reason therefor -that several .of the heirs refused to join in the conveyance and' that when he signed the contract he supposed that, as administrator of his wife’s estate, he had authority to sell and convey her real estate. Prior thereto, and within about two weeks after the contract was .signed, he had tendered a return of the money paid upon the same ground. ;

- The plaintiff alleged an agreement on the part of the defendant to sell the property. The defendant denied that he executed the *831contract individually and alleged that-he executed it as administrator in good faith, believing that he had a right to sell and convey the real estate of his wife; that she left children and a grandchild her heirs-at-law; that on being advised that he coiild not convey, he so informed the plaintiff before plaintiff incurred ■ any expense, and offered to return the- money paid, with interest, and bófore the commencement of the action he. tendered back the money paid with interest and twenty-five dollars .to cover expenses incurred by '- plaintiff by reason of -the contract, and remains ready and willing to pay the same.

Upon the. trial the court excluded the contract upon the ground . that it was not a contract on the part 'of defendant individually. The court also excluded evidence offered by the plaintiff to show that defendant represented that he was authorized to sell the .prop erty, also his representations concerning his authority to execute the contract as administrator,. and also evidence of the expense-incurred by plaintiff in having the title examined. •

The plaintiff thereupon rested, and ón motion of counsel' for - defendant the court dismissed the complaint:

We are of opinion that the court erred in excluding the contract and the evidence offered by the plaintiff as to the expense incurred in examining the title. If the surrogate had. decreed a ¿ale of the real estate for the payment of the decedent’s debts, pursuant to the provisions of section 2757 of the Code of Civil Procedure, the defendant would have been authorized to enter into a contract for the sale of the- premises. ' (Code Civ. Proc. § 2761.) Moreover, he-might have been.authorized by the heirs to make the contract or he might have purchased' the premises from the heirs and have been in-á position to perform. The contract, on the face of it, was a distinct representation that he had authority to sell the property- and he is liable thereon individually. The plaintiff was not obliged to accept his subsequent statement that the execution of the. con- - tract was-unauthorized and have recourse to . an action at law. If he. were able to'perform the court could have decreed specific performance, and when it appeared upon the trial that he was unable to perform the court should have awarded judgment in favor of the plaintiff for the down payment, together with interest, the expense-, of examining the title and costs of the action according to the' equi*832ties of the case as presented by the evidence. (Steinhardt v. Baker, 25 App. Div. 197, and cases cited; affd., 163 N. Y. 410.) If an individual, without title- to property, enters into a contract to sell and convey it, he. cannot avoid the consequences of his contract by subsequently informing the purchaser that he had not title to the' premises, nor can he deprive the plaintiff of the right to sue in equity for specific performance of the contract, with a prayer for alternative relief for the return of the money paid on account of-the purchase price, together-with interest, expense of examining the title and costs according to'the equities in the event .that lie is unable to specifically perform, and in-such case if it appeared that the defendant could perform, the plaintiff would be entitled to specific performance and otherwise he would be entitled to the alternative relief.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.-

McLaughlin and Clabke, JJ., concurred ; Scott, J., concurred in result.

I concur in Mr. Justice Laughlin’s opinion. It is quite clear that the contract sued on was a personal contract of the defendant’s. As administrator without special leave of the surrogate he had noth-' ing to do: with the real estate' and no power to make a contract respecting it. It purported to be a contract of the estate and the administrator by- making it implied that he as administrator was authorized to make such a contract and was responsible- to the defendant for any damages sustained in consequence of a breach of. that implied agreement. There is some question whether, under those circumstances, an action for specific performance could be sustained, but as the complaint set up a good cause of action for damages at law and an answer had been interposed, if the plaintiff was not entitled to recover on the equitable cause of action he was still entitled to have the case retained so that he could be awarded damages for. a breach of the contract. There was.no objection either in the answer or upon the trial to trying the action as one in equity, -nor was there a demand for a trial by jury. I think upon the evi- ■ dence the court was justified either in awarding judgment against *833the defendant for the amount paid on the execution of the contract with such damages as plaintiff was entitled to for breach of the contract, or if the defendant demanded á jury trial, sending the case to a Trial Term for trial.

Judgment reversed and new trial granted, with costs to appellant to abide event.