
    Laura Werner, Plaintiff, v. Carmino Padula et al., Defendants.
    (Supreme Court, New York Trial Term,
    November, 1899.)
    Lease — Condition, that rent shall be paid only until total destruction, applies to rent paid in advance.
    A condition in a lease, “ that in case of total destruction of the premises by fire or otherwise, the rent shall be paid up to the time of such destruction ” and that thereupon the lease shall determine, is applicable to rent paid in advance; and consequently, where the demised premises are thus destroyed, the tenant is entitled to a refund of so much of the advance rent as had not been earned at the time of the total destruction.
    Action to recover back part of rent paid in advance under fire clause contained in lease.
    Maurice Rapp, for plaintiff.
    McGrea, Somerville & Taylor, for defendants.
   MoAdam, 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 fifteenth, 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 fire. 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 fire clause contained in the lease, by which it is stipulated “ that in case of total destruction of the premises by fire 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 fire 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 he 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 fire clause is to be construed to mean that the tenant is merely to be relieved from rent payable after a total destruction, then the fire clause is meaningless, for without it the statute would have furnished the same protection. Laws of 1860, chap. 345; Laws of 1896, chap. 547, § 197. The first clause in Tarkovsky v. 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; Weston v. Brown, 158 id. 360. “It is immaterial,” said the court in Roberts v. Ely, 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.” No 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.

Judgment for plaintiff.  