
    Thomas Regan against John G. Gerdes.
    Defendant, having a lease of premises, a part of which he sublet, rented a part of them, on Oct. 14th, to the plaintiff, under the agi-eement that the plaintiff, on Nov. 1st, should take a lease of the whole premises from the owner. Subsequently it was agreed as being “ equal” to the former arrangement, that the plaintiff should take a lease from Oct. 1st, and pay the rent from that day, and the defendant should pay the plaintiff rent for the premises he had occupied up to Oct. 14th. Held, that under this agreement the defendant was hound to pay to the plaintiff the October rent he had collected before the agreement was made.
    Appeal from a judgment of this court, entered on the report of a referee.
    The action was for money had and received to the use of the plaintiff.
    The answer was a general denial. The facts of the case were that on Oct. 14th, 1871, the defendant was the lessee of premises in the city of New York, a part of which he used for the purposes of a business there carried on by him, another part for dwelling purposes for himself, and the remainder he rented to various tenants. On that day (Oct. 14th) he agreed to sell to the plaintiff his store (including stock, &c.) and his lease, on the following terms, to wit, that the plaintiff should pay $2,000, and also pay to the defendant half a month’s rent of the store premises (up to Nov. 1st) and go into possession at once, and on Nov. 1st should take a lease of all the premises from the owner. On the same day the plaintiff took possession under this agreement.
    By the terms of the defendant’s lease, the rent was payable by him at the end of the month, but he collected the rent from his subtenants monthly in advance, and on Oct. 14, when the plaintiff went into possession, he had collected the rent for the parts of the premises which were not occupied by him, and it was therefore agreed that he should pay to the landlord the rent for the whole premises for October, and that plaintiff should pay to the defendant half a month’s rent for the store premises, as above stated. A few days after the plaintiff went into possession, the defendant suggested to the plaintiff, as an agreement “equal” to the former one, that the plaintiff should take from the owner a lease of the whole premises from Oct. 1st, and pay the rent from that time, and that the defendant would then pay the plaintiff half a month’s rent of the store premises and a whole month’s rent of the apartments he occupied. To this the plaintiff agreed, and took a lease and paid the rent accordingly, and then demanded of the defendant payment of the amount of October rent, $231, that he had collected from his subtenants. This the defendant refused to pay, and this action was brought to recover the same.
    The cause was referred, and the referee reported in favor of the plaintiff, and the defendant appealed.
   J. F. Daly, J.

The account given by defendant and his witness, of the agreement between himself and plaintiff, is flatly contradicted by the memorandum of the agreement reduced to writing, signed by defendant. That was the first agreement between the parties spoken of by plaintiff. By it the plaintiff was to pay the defendant half a month’s rent of the store and come under full months’ rent for the premises, on November 1st, to the landlord. In view of the knowledge of all parties, that the defendant had then in his hands the rent of the subtenants for the whole month of October, which he had collected, and was to receive iq. addition thereto the rent of the store for the balance of October, from the plaintiff, it was clearly the intention that defendant was to pay the landlord Wettyen the full rent for that month.

The subsequent alteration of this agreement between the parties, was in two points only, viz., that the plaintiff was to take the lease from October 1st, instead of November 1st, and was to receive from defendant half a month’s rent of the store and a month’s rent of the premises in the building occupied by defendant, instead of paying half a month’s rent of the store to defendant. This was upon the defendant’s suggestion that it would be equal to the arrangement first made—•“ equal to him paying me for half a month and making the lease from first Hovember.” It would not be equal, if plaintiff were to pay the landlord the October rent, as defendant claims he should. But the language evidences unmistakably the intent of the parties to make the last arrangement “equal” to the former, and this intent can only be carried into effect by construing the agreement of the parties, as finally made, to mean : that plaintiff was to become responsible to the landlord, under the new lease, for the whole month of October; and that defendant was to pay plaintiff, not only rent for his own occupation of the premises, but also the rent from the subtenants, which he had already collected for that month. Where the intent of the parties is plain, it will be carried into effect, even if the words used in making the agreement fail to express every part of it. Ho other construction could be given to the language of the parties which would not be grossly inequitable to the plaintiff, and which would not give to defendant by the last arrangement an advantage that he disclaimed when he stated that it was to be equal ” to the first one.

The plaintiff had a right to demand, and receive from the defendant, the rents for October, collected from the subtenants,- and the recovery being for that sum, the judgment must be affirmed.

Daly, Ch. J., and Loew, J., concurred.

Judgment affirmed.  