
    Samuel Jenkelson, Respondent, v. August Ruff, Appellant.
    (Supreme Court, Appellate Term,
    April, 1900.)
    Lease — Wot actionable if incomplete.
    Where an agreement in regard to leasing premises is tentative and incomplete and the only term agreed upon is the amount of the rent, the proposed tenant cannot sue for a breach of the agreement even though he has paid the proposed landlord a sum equal to one month’s rent. His remedy is confined to a recovery of the payment.
    Appeal from a judgment of the Municipal Court of the city of Few York, fourth district, borough of Manhattan, rendered in favor of the plaintiff.
    Christian G-. Moritz, for appellant.
    Leopold W. Harburger, for respondent.
   O’Gormah, J.

This action was brought to recover damages for breach of contract and for money had and received. The defense was a general denial, counterclaim and tender and payment into court of the amount conceded by the defendant to be due the plaintiff.

Plaintiff bases his right to recover upon an alleged oral hiring of the defendant’s premises, and the refusal of the defendant to give possession thereof. Plaintiff’s own evidence, however, fails to establish a binding or completed agreement between the parties. The agreement, so far as it proceeded, was merely tentative, the amount of the rent being the only item specifically agreed upon. At this time the building was not completed, and there was doubt as to when it would be ready for occupancy. It .was understood by both parties that a written lease was to be prepared and that a surety agreement was to be executed by plaintiffs brother. The written lease was never prepared or executed, and plaintiffs brother refused to become surety on the lease when called upon by the defendant. These writings being essential to the validity of the lease, the hiring was never completed and plaintiff is without remedy. Law v. Pemberton, 10 Misc. Rep. 362. This is not a case where all the terms and conditions were actually settled and closed, excepting the mere reduction of the agreement to writing.

The payment of the fifty dollars to the defendant at the time of the alleged hiring by the plaintiff does not alter the situation of the parties. Wilder v. Stace, 61 Hun, 233. Whether we regard it as a deposit or rent for the first month, it was manifestly accepted subject to the execution of the formal contract and the surety agreement. The transaction, therefore, never having been consummated, this action cannot be sustained except for money had and received. The court below having found that defendant’s counterclaim was established by competent proof, the plaintiff was entitled only to the balance remaining on the deposit, which was duly tendered and paid into court. Under the proofs, the defendant was entitled to a judgment.

• Judgment reversed, with costs, and judgment ordered for the defendant, with costs.

Beeicman, P. J., and Giegerioh, J., concur.

Judgment reversed, with costs, and judgment ordered for defendant, with costs.  