
    (29 Misc. Rep. 400.)
    WERNER v. PADULO et al.
    (Supreme Court, Trial Term, New York County.
    November 3, 1899.)
    1. Landlord and Tenant—Destruction op Property by Eire—Recovery of Rent Paid in Advance.
    Where a lease of premises for a year recites that, in case of total destruction by fire or otherwise, the rent shall be paid up to the time of such destruction, and then and from thenceforth the lease shall cease, the tenant, on a total destruction by fire, is entitled to recover back rent paid in advance beyond the time of the fire.
    2. Same—Measure of Recovery.
    Where no evidence is offered to show that the value of the enjoyment of the premises varied in the different months of the year, the measure of recovery applicable is the pro rata share of the year’s rent.
    Action by Laura Werner against Carmino Padulo and another to recover back rent paid in advance. Judgment for plaintiff.
    
      Maurice Rapp, for plaintiff.
    McGrea, Somerville & Taylor, for defendants.
   McADAM, J.

The defendants, as landlords, demised unto the plaintiff, as tenant, certain real property at Coney Island, in the borough of Brooklyn, with the buildings thereon, for one year from March 1, 1898, at the rate of $2,200 for the term, payable $1,200 on the signing of the lease, $500 on June lath, and the remaining $500 on July 5, 1899. The plaintiff paid the $1,200 in advance as agreed, and,on May 26, 1899, the buildings were totally destroyed by Are. The action is by the tenant to recover back the unearned portion of the rent paid, because such destruction rendered further use or enjoyment of the subject-matter impossible. The cause of action is based on that part of the Are clause contained in the lease, by which it is stipulated “that, in case of total destruction of the premises by Are or otherwise, the rent shall be paid up to the time of such destruction, and then and from thenceforth this lease shall cease and come to an end.” As the rent, by the terms of the lease, was payable in advance, the Are clause can be effective only in one way, to wit, by holding that on the happening of the contingency provided for the lessors must refund the unearned rent, for the provision clearly contemplates that rent is to be paid only during the time actual enjoyment was possible. Suppose the tenant had paid the rent in advance for the entire year, and the destruction had happened the second day after the payment; could the lessors have retained the year’s rent in the face of this special agreement? Certainly not. If the Are clause is to be construed to mean that the tenant is merely to be relieved from rent payable after a total destruction, then the Are clause is meaningless; for without it the statute would have furnished the same protection. Laws 1860, c. 345; Laws 1896, c. 547, § 197. The Are clause in Tarkovsky v. George H. Hess Co., 64 Ill. App. 513, did not contain the words “that the rent shall be paid up to the time of such destruction,” so as to imply that an abatement or return thereof was to be made by the lessors,—a feature that distinguishes the two cases. Courts should effectuate a contract whenever it can be done by a fair and rational construction of the language used. 2 Pars. Cont. (6th Ed.) 506. The defendants have received from the plaintiff $608.50 of his money, for-which he has received no equivalent, and to which they have no legal or equitable right. The case, therefore, seems to fall within the familiar doctrine that money in the hands of one person, to which another is equitably entitled, may be recovered in a common-law action, upon an implied promise arising from the duty of the person to account for and pay over the same to the person beneficially entitled. Roberts v. Ely, 113 N. Y. 128, 20 N. E. 606; Weston v. Brown, 158 N. Y. 360, 53 N. E. 36. “And it is immaterial,” said the court in Roberts v. Brown, supra, “whether the original possession of the money by the defendant was rightful or wrongful. It is sufficient that the duty exists on his part, created by the circumstances, to account for and pay it over to the plaintiff.” Ho question has been raised as to the measure of recovery applicable,, which is presumably the pro rata share of the year’s rent, no evidence having been offered to show that the value of the enjoyment varied in the different months of the year. The plaintiff is therefore entitled to judgment for $608.50, and interest.  