
    Gustavus A. Rogers et al., Respondents, v. Joseph Wilkenfeld, Appellant.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Vendor and purchaser — Adjustment of rights after conveyance — Eight to moneys deposited to cover incumbrances.
    Where, upon a sale of real property which it was agreed should be free from all tenement house violations, a part of the" purchase price was deposited with defendant “ for the purpose of permitting ” the vendors to remove a certain tenement house violation; and, in case of their failure to do so before a certain date, the vendees were authorized to comply with said violation, the deposit or so much thereof as might be necessary to be applied toward the cost of complying with same, the vendees cannot after such date recover from defendant the amount so deposited without showing that they have performed the work and then only to the extent of its cost. Nor is the situation changed by proof that defendant requested plaintiffs not to do anything; that he was going to fix it up by payment of the money or that the vendors would do the work.
    
      Appeal by the defendant from a judgment of the Municipal Court of the city of New York, ninth district, borough of Manhattan, rendered in favor of the plaintiffs.
    Benjamin Reass (Joseph Wilkenfeld, of counsel), for appellant.
    Saul E. Rogers, for respondents.
   Per Curiam.

This action was brought for money had and received and the answer was a general denial, the pleadings being oral. The facts are practically undisputed and are substantially as follows: Parties named Fensterheim and 'Hirshfeld entered into a written contract for sale, whereby as vendors they agreed to convey certain premises to Aaron Ratkowsky and Harris Rogers as vendees, the plaintiff Rogers having subsequently acquired the interest of Harris Rogers in said contract. The premises were to be conveyed free from all tenement-house violations to the time of the closing of title. The purchase price was $27,750. At the day title was to be given by said vendors it appeared that there was a tenement-house violation charged., against the property which was a requirement that there should be provided “ k cast iron drain for reap area, provide cast iron drain for yard, and properly concrete same to a slope not less than % inch per foot, file owner’s name.” The plaintiff Rogers, who was present as attorney for the vendees at the closing of title, in detailing what then occurred at this time relative to the disposition of this violation, says: “ I told him, (the defendant herein, who was attorney for the vendors), he could either have the title adjourned or else some other provision be made for complying with these violations. After some further talk among Mr. Wilkenfeld, his clients and myself, Mr. Wilkenfeld said: ' How much do you want to comply with these violations'yourself ? ’ I said: ' What do your clients estimate that they will be worth? ’ He said: 'Between $75 and $100.’ I said: 'Mr. Wilkenfeld, I dn not think it can be done for $75 or $100; this is a matter of ptitting drain pipes through the sewer, etc» So far as I am concerned I don’t care whether your clients can do it for $5 as long as they do it, we don’t want any money from them but security for the contract.’ ” After some further conversation on the subject the sum of $300 was taken from the purchase price paid by the vendees and deposited with this defendant, who thereupon signed the following paper: This is to certify that I hold the sum of $300 deposited with me for the purpose of permitting Messrs. Fensterheim and Hirsfeld to comply and remove violation O. B. V. 48015/05 on letter dated June 21st, 1905, from the Tenement House Department to Gustaros A. Rogers. If same is not complied with on or before July 21st, 1905, Messrs. Rogers & Ratkowsky are authorized to comply with said violation and the sum of $300, or so much thereof as is necessary, to be applied towards the costs of complying with the same. Dated Hew York, June 26th, 1906.” As to the letter of June 21, 1905, it seems clear that by the terms of this writing it was the intention of the parties that the vendors should comply with the requirements of the order of the tenement-house department and that they had until July 20, 1905, in which to do so and that, if not complied with by that time, the vendees, upon complying with such requirements, would be entitled to so much of the $300 deposited with the defendant as would compensate them for the cost of such work. That all parties contemplated that the work ordered by the tenement-house department should actually be done is perfectly clear and practically undisputed. It is conceded by the plaintiffs that the work wa« never performed by them or at their expense. Conscious, therefore, that the plaintiffs’ claim could have no basis under the writing aforesaid, as their right to any portion of the $300 deposited with the defendant must rest upon their having incurred the cost of complying with the violation charged against the premises, the plaintiffs’ attorney states that he makes no claim for a recovery herein from the defendant on the writing of June 26, 1905, but bases their claim upon what he terms “ a novation of contract and a new agreement which superseded the instrument under which the deposit was made.” The terms of this new agreement ” are set forth in the testimony of one of the plaintiffs as follows: I wish to say that Mr. Willcenfeld, hoth before and after the institution of this suit, requested me not to do anything; that he was going to fix the matter up by payment of the money, or that his clients go in on the premises and do it themselves and asked me not to have the work done.” When this conversation occurred, or such statement was made by the defendant, does not clearly appear, and is of no consequence; for it does not change the situation in the least. The interpretation of a contract, written or oral, is to be determined by the relation of the parties and the surrounding circumstances; and the language used is to be taken in the sense which it is reasonable to presume was intended. The language used by the defendant, as attributed to him, contained no express or implied promise to pay the full sum of $300 to the plaintiffs. It is in substance a mere reiteration of the terms of the written instrument by which the defendant held the fund. In other words, the matter would be “ fixed up,” the vendors would either “ go in and do the work ” or pay a reasonable sum for its cost, if done by. the vendees. There had been a difference of opinion as to the actual sum necessary to comply with the order of the department; that difference of opinion still existed and it is going too far to say that the defendant should he bound to pay over the entire fund held by him because, in a conversation had with one of the plaintiffs, at a time which cannot be more definitely fixed by the narrator than as being “ both before and after the institution of this suit,” the defendant used the language attributed to him, and that by the use of such expressions the defendant intended or did thereby promise and agree to pay said sum in full to the plaintiffs, disregarding the express terms of the written instrument under which he held it, and without regard to whether the work was done or not. Meither does it appear that the plaintiffs acted upon or were damaged by such statements in any way. They were not thereby prevented from doing the work, their right to proceed and comply with the department order was complete on July 20, 1905, at which time the vendors had failed to perform the work; and their right to compensation from the fund for the cost of the work if done by them was undisputed. It does not appear that, from the date of the written instrument of June 26, 1905, to the day of trial in ¡November, 1906, the plaintiffs made the slightest attempt to perform the work or requested the defendant or the vendors to cause it to be done. Moreover, when we consider that the defendant is not shown to have any authority from the vendors to alter the conditions under which he held the fund, as there is no evidence that he acted for the vendors or had authority to act for them at any time other than at the closing of title, it will be seen that the claim of the plaintiffs to the whole fund in the hands of the defendant, upon the theory that their right thereto is given them upon “ the promise and agreement to pay over if the plaintiffs would refrain from doing the work specified in the violation,” is fallacious, untenable and not sustained by a reasonable construction of the language used by the defendant in the so-called “ new agreement ” or by the facts in the case. The plaintiffs could not, therefore, recover either of the defendant or the vendors without showing that they had performed the work required by the violation charged against the premises, and such recovery would be limited to the reasonable cost of doing the work. The recovery in this case was based wholly upon estimates of what the work would cost, and it was not shown that the plaintiffs had actually expended or obligated themselves to pay one dollar therefor. Another sufficient reason for the reversal of the judgment herein is this: It will be remembered that the work to be done on the premises in order to comply with the violation charged was to “provide cast iron drain for rear area, provide cast iron drain for yard and properly concrete same to a slope not less than 44 inch per foot.” In the summer of 1905, and long prior to the institution of this action, this order of the tenement-house department was modified, by permitting the placing of “ a saddle at the head of the cellar stairs leading to the rear area and by concreting the yard to a distance of three feet from the rear wall.” This modification seems to have been based upon a claim that “ the yard is properly sloped and proper drainage is effected and that the rear area is not sufficient size required to drain; ” and later, in August, 1905, after inspection and a report that the order as modified had been complied with, the violation was removed by the tenement-house department. If we assume that the vendors were required to strictly and exactly perform the work specified in the order aforesaid, they would only be liable for failure to provide “ cast iron drain for rear area and cast iron drain for yard.” The Tenement-house Act, section 93, chapter 4, title 1, requires that “ areas and yards shall be graded and drained and when required by the ’department charged with the enforcement of this act shall be properly concreted.” The order aforesaid followed the language of the act and required, that the premises in question should be “ properly concreted ” and, by their modification of that order and a subsequent removal of the violation, the presumption is that the yard was properly concreted and no liability for failure to concrete the yard rested on the vendors; and the testimony of one of the plaintiffs’ witnesses, that it is “ customary to concrete the whole yard,” is not sufficient to overcome that presumption. The expense of providing the drain was shown to be $30 only. It would, therefore, be unjust and inequitable to permit the plaintiffs to recover the sum of $300 for work which concededly cost only $30 to perform.

Under- the facts in this case as presented by the record, no cause of action is shown to exist against the defendant herein, and the judgment must be reversed.

Present: Gildersleeve, Blanchard and Dayton, JJ.

Judgment reversed and new trial ordered, with Costs to appellant to abide event.  