majority">Proskauer, J.

On July 17, 1920, plaintiff and defendant entered into a written agreement by which defendant was to convey to plaintiff for $7,500 a dwelling at No. 1961 Cedar avenue, in the Bronx; $1,000 was paid upon the signing of the contract. There was nothing whatever in the contract which required plaintiff to take title subject to any tenancy or occupancy. There is a printed *575clause in the contract reading, “ rents and interest on mortgages, if any, are to be apportioned,” and to which the words “ and insurance ” have been interpolated in typewriting after the word “ mortgages.” Defendant contends that an inference is to be drawn from the use of this clause that plaintiff was to take subject to an occupancy. I cannot so construe it. The printed clause, “ rents, if any, are to be apportioned,” related only to an adjustment of money if there were any rents to be adjusted, and cannot be interpreted as a covenant of plaintiff to take subject to a tenancy or the occupancy of a tenant. At the time set for closing of title there was a tenant in possession. Defendant had sought in vain to eject him and had been prevented from so doing by the operation of the Emergency Rent Laws. While the endeavor of defendant so to fulfill his contract bespeaks entire good faith on his part it cannot serve to excuse his non-performance of a clear and unambiguous contractual obligation. That obligation was to convey not only a good title to the property, but to give possession thereof at the time of the delivery of the deed. McCool v. Jacobus, 7 Robt. 115; Fruhauf v. Bendheim, 127 N. Y. 587; Sugarman v. Goldberg, 100 N. Y. Supp. 1012; Bullard v. Bicknell, 26 App. Div. 319.

Defendant having failed to carry out his contract plaintiff sues to recover back the $1,000, and also $250 expenses incurred, and moves herein for summary judgment under rule 113 of the Rules of Civil Practice. Obviously no summary judgment can be ordered as to the unliquidated sum of $250, and as to that the action must be severed. As to the liquidated payment of $1,000, however, I am of the opinion that the motion should be granted.

Mr. Justice Burr has already in this very action denied a motion to dismiss the complaint, and thus, in an opinion in which I entirely concur, disposed of defendant’s contention that the phrase referring to apportionment of rents has any determining significance. It necessarily follows that if plaintiff was entitled to receive possession from defendant, as I hold she was, she must recover back from defendant the deposit paid upon the signing of the contract.

Defendant contends that this case is not of the kind embraced in rule 113. It may be viewed as an action on the contract itself to recover the amount paid (Flickinger v. Glass, 222 N. Y. 404), in which aspect it would surely come within rule 113; or, if it be not that, it may certainly be viewed as an action on the implied contract for money had and received upon a complete failure of consideration.

I have recently examined this question in another case and reached the conclusion that where there has been a complete failure of consideration and plaintiff is entitled, therefore, to recover his money back upon the implied contract the action is covered by *576rule 113. Poland Export Corporation v. Marcus, 204 App. Div. 302, is not an authority to the contrary. Indeed in Gravenhorst v. Zimmermann, 202 App. Div. 819, there was an affirmance of an order granting summary judgment in just such an action, and while that affirmance was reversed in 236 New York, 22, the opinion assumes that the action was of a character embraced in rule 113. Reading the Poland case together with the Gravenhorstcase, I am clear that the Appellate Division did not intend to exclude from the operation of rule 113 a cause of action on the implied contract for money had and received arising from a complete failure of consideration. Applying the test suggested in Mr. Justice Page’s opinion in the Poland case, such an action would be entitled to a preference under rule 6 of the Trial Term Rules, New York County.

Motion granted as to the sum of $1,000 and interest. The action to be severed as to the remainder of the amount claimed.

Settle order on notice.

Ordered accordingly.

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