Levy v. Freiman

been done by the said Isadore Deutsch and Samuel Deutsch, and paid for by them, then the $100 is to be returned to Isadore Deutsch and Samuel Deutsch. If, on the other hand, the work shall have been done by Joseph Levy, and paid for by him, then I am to turn over the said sum of $100 to Joseph Levy.

“Dated New York, June 28, 1907. Leopold Freiman.”

The record is almost bare of any evidence to put the court in the situation of the parties, that it might consider the surrounding circumstances in quest of their meaning and intent. The defendant’s efforts thus to aid the court were repressed under objections, and so the court was deprived of the application of “a conspicuous and far-reaching rule.” Gillet v. Bank of America, 160 N. Y. 555 , 55 N. E. 292 ; Maloney v. Iroquois Brewing Co., 173 N. Y. 310 , 66 N. E. 19 . The writing shows that the defendant received $100, but not who deposited it. It did crop out in the testimony that Deutsch was the seller of the premises and the plaintiff was the purchaser thereof. We may also infer that there was “a violation” outstanding, and that this agreement was made in consequence; and as the defendant agrees "to return” the sum to the Messrs. Deutsch, and “to turn over” the sum to the plaintiff, we may infer that the Messrs. Deutsch were the depositors. The agreement contemplated that work would be done to remove the violations, and the purpose of the deposit was to indemnify the plaintiff if the cost of the work was paid by him. He was bound to show that the violation had been removed or dismissed as the result of such work so paid for. I think that the plaintiff failed to prove the doing of such work and payment therefor. His own testimony is too general and indefinite, and that of the inspector vague and indicative somewhat that such particular work was not done. The testimony of the latter witness likewise indicates that the violation was not dismissed because of any work done. I think, therefore, that there should be a new trial.

As to the question whether the plaintiff was entitled to the $100, or only so much thereof as actually made good his outlay for the work, the rule is that this depends on the intention of the parties, shown by the situation and by the writing. See Caesar v. Rubinson, 174 N. Y. 496 , 67 N. E. 58 . The terms of the writing are that the $100, not any part thereof, or so much thereof as may be necessary, shall be paid to the plaintiff in the event of his doing the work. A rule frequently invoked, and one germane to this question, is that such a sum is regarded as liquidated damages when the actual damages contemplated at the time of the agreement “are in their nature uncertain and unascertainable with exactness, and may be dependent upon extrinsic considerations and circumstances, and the amount is not, in the face, of the contract, out of all proportion to the probable loss.” Ward v. Hudson River Building Co., 125 N. Y. 230 , 26 N. E. 256 ; Little v. Banks, 85 N. Y. 258 ; Kemp v. Knickerbocker Ice Co., 69 N. Y. 45 , 57; Clement v. Cash, 21 N. Y. 253 ; Baglie v. Peddie, 5 Sandf. 192 ; Id., 16 N. Y. 469 , 69 Am. Dec. 713 ; Dunlop v. Gregory, 10 N. Y. 241 , 61 Am. Dec. 746 ; Cotheal v. Talmage; 9 N. Y. 551 , 61 Am. Dec. 716 . See, too, Ward v. H. R. B. Co., 125 N. Y. 230 , 26 N.

The judgment is reversed, and a new trial ordered; costs to-abide the event. All concur.