
    Joseph Levy, Respondent, v. Leopold Freiman, Appellant.
    Second Department,
    March 19, 1909,
    Bailment—deposit of moneys by vendor of lands to be paid to party removing violations proof necessary to recovery by vendee..
    Where the vendor of lands deposits a sum of money to be held in escrow and' returned to- him if he does work on the premises necessary to remove certain violations^ hut to he given to the vendee if the work is done by him, the . vendee, in order to recover1 the deposit, must show that the violation was' removed as a result of work paid for by him.
    
      Qucere, as to whether the vendee is entitled to the whole sum,, or only so miich ' thereof as will actually make good his outlay for doing the work.
    Appeal by the defendant, Leopold Fve.iman, from, a judgment,of the Municipal Court of the. city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the,18th day of September,, 19.08. ' . ' ■ '■■■■■■
    
      Isador Dobroezynski, for the appellant.
    
      Louis Burstein [Charles Burstein, with him on the brief] for the respondent.
   Jenks, J.:

The defendant appeals from the plaintiff’s judgment for $100, rendered after trial in the Municipal Court without a jury. The plaintiff complains that the defendant is liable to him upon the ■ defendant’s undertaking as follows:

“ I, Leopold Freiman, do hereby acknowledge the receipt of the sum of One Hundred Dollars, which I agree to hold in escrow until violation Ho. 532\03 against premises Ho. 148 Varet Street, shall have been removed, or dismissed, and upon presenting to me dismissals of the said violations, I agree to return the sum of One Hundred Dollars, provided, always that if the said work has been done by the said Isadore Deutsch and Samuel Deutsch and paid for by them, then the $100 is to be returned to Isadore Deutsch and Samuel Deutsch; if, on the other hand, the work shall have been done by Joseph Levy and paid for by him, then I am to turn over the said sum of $100 to Joseph Levy.
“LEOPOLD FBEIMAH.
“ Dated, New York, June 28th, 1907.” ' ,,

The record is almost bare of evidence to put the court in the situation of the parties that it might consider the surrounding circumstances in quest of their meaning or intent. The defendant’s efforts thus to aid the court were repressed under objections, and so the court was deprived of the application of “ a most conspicuous and far-reaching rule.” (Gillet v. Bank of America, 160 N. Y. 555; Maloney v. Iroquois Brewing Co., 173 id. 310.) The writing shows that the defendant received $100, but not who deposited it. It did crop out in the testimony that Deutsch was the seller of the premises and the plaintiff was the purchaser thereof. We may also infer that there was “ a violation ” outstanding and that this agreement was made1 in consequence. And as the defendant agrees “to return ” the sum to the Messrs. Deutsch and “ to turn over ” the sum to the plaintiff, we may infer that the Messrs. Deutsch were the depositors. The agreement contemplated that work would be done to remove the violations, and the purpose of the deposit was to indemnify the plaintiff if the cost of the work was paid by him. He was bound to show that the violation had been removed or dismissed as the result of such work so paid for. I think that the plaintiff' failed to prove ■ the doing of such work and: payment therefor. His own testimony is too general and indefinite and that of the inspector vague and indicative somewhat that such particular work was not done. The testimony of the latter, witness likewise indicates that the violation was not dismissed because of any' work doné. 1 think, therefore, that there should be a new trial.

As to the question whether the plaintiff was entitled to the $100 or only so much thereof as actually made good his outlay for the work, the rule is that this depends on the intention of the parties . shown by the situation and by the writing. (See Caesar v. Rubinson, 174 N. Y. 496.) The terms of the writing aré that the $100, not. any part thereof or so much thereof as may be necessary, shall be paid to the plaintiff in the event of his doing the work. A, rule frequently invoked and one. germane to this question is that such a sum is regarded as liquidated damages when the actual' damages contemplated at. the time of the agreement “ áre in their nature uncertain and unascertahiable with exactness, and may be dependent upon extrinsic considerations and circumstances, -and,the amount is not, on the. face of the contract, out of all. proportion to the probable loss.” (Ward V. Hudson River Building, Co., 125 N. Y, 230; Little v. Banks, 85 id, 258; Kemp v. Knickerbocker Ice Co., 69 id, 45, 57; Clements v. Cash, 21 id. 253; Bagley v. Peddie, 5 Sandf. 192; S. C., 16 N. Y. 469; Dunlop v. Gregory, 10 id. 241; Cotheal v. Talmage, 9 id. 551.) I do not mean to say that this rule, must be necessarily applied Upon the new -trial which- may disclose additional facts to reveal the intention of the parties.

The judgment is reversed and a new trial ordered, costs to abide the event.

Woodward, Gaynor, Burr and Rich, JJ., concurred.

Judgment of the -Municipal Gourt reversed and new trial ordered, costs to abide the event.  