#### Max Sell, Appellant, v. Sidney A. Clarkson and Aaron Grant, Respondents.

Second Department,

December 30, 1908.

Bailment — recovery of deposit of earnest money.

Action to recover earnest money paid on account of a contract to convey lands. The money was placed in the hands of a depositary and the defense was that the money was to be applied on a judgment obtained by a third party against the vendor. Evidence examined, and *held,*that there was no agreement that the money should be so applied, but that the depositary held it to pay to the vendor as part of the purchase price if the conveyance were made.

Appeal by the plaintiff, Max Sell, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 5th day of February, 1908, dismissing the complaint.

*M. V.*McDonald, for the appellant.

*Sidney A. Clarkson,*for the respondents.

Per Curiam:

The plaintiff appeals from a judgment of the Municipal Court dismissing his complaint at the close of the case. The action is to recover $100 paid on account of a contract to convey realty. Grant told the plaintiff that he could secure for plaintiff this realty owned by Goldberg for a certain price. Theretofore Grant had made a contract with Goldberg to purchase the same realty, but the contract was not performed and Grant had obtained a judgment against Goldberg for purchase money paid on account, which judgment was outstanding and perforce of it a receiver had been appointed. The plaintiff testifies that at the time of his said interview with Grant he told Grant that he had heard that Grant had trouble with the title, and also said that he feared if lie made a payment on account to Goldberg he too might lose his money, and that Grant replied that the plaintiff could put such money in the hands of his (Grant’s) counsel. The upshot of it was that plaintiff and Goldberg made a *474contract for the sale of the premises to be performed at the office of Clarkson on or before November 18, 1907. The plaintiff paid $100 into the hands of Clarkson. The contract has not been performed. The defense is that it was understood and agreed that this $100 should be applied on the judgment held by Grant against Goldberg, and that accordingly the money was paid by Clarkson to the receiver. There is no question that the money was paid on account of the contract between the plaintiff and Goldberg. Indeed, the payment is indorsed thereon. And it is clear enough that the reason that a deposit was not made with Goldberg was that the plaintiff did not trust Goldberg and was fearful that if Goldberg did not convey the realty the plaintiff would lose any deposit made with him. Whatever Grant may have said to Clarkson in the presence of the plaintiff or whatever the plaintiff may have appeared to assent to, for he is an illiterate man, it seems incredible that at the same time when he was unwilling to put the money into Goldberg’s hands lest he could not recover it in case of Goldberg’s default, he should consent that the money should be applied outright and absolutely on Grant’s judgment against Goldberg and, therefore, for Goldberg’s benefit absolutely. The final analysis is absurd, namely, that the plaintiff would not trust Goldberg with money which he was willing should be applied forthwith for Goldberg’s benefit, irrespective of any benefit to the plaintiff. We think that the transaction, as understood by the plaintiff, was that Clark-son should hold the deposit of $100 instead of Goldberg, to apply that money to the purchase price in case the contract of Goldberg was performed — and that this is the effect of the evidence.

If the plaintiff broke the contract then he cannot recover, but it the defendant was at fault, then the plaintiff has his action for recovery of this money. While it appears that the contract has not yet been j>erformed, the record is not full and is not clear that it has been broken, and if so, as to which of the parties thereto is at fault. There must be a new trial to determine that question. If the contract has been broken by the fault of the plaintiff, there is no liability, and hence this money is not the concern of the plaintiff ; if by the fault of the defendant, then Mr. Clarkson must be regarded as still in possession of this money. If the contract is still in force but unperformed, then Mr. Clarkson must also be regarded *475as still in possession of the deposit. We think that the case as to Grant was dismissed rightly.

The judgment should be reversed as to the defendant Clarkson and a new trial ordered, costs to abide the event.

Woodwaed, Jenks, Hooker, High and Milleb, JJ., concurred.

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