We agree with the learned referee that the exchange of the Eighty-fourth street lot for the Eighty-sixth street property amounted to a sale of the Eighty-fourth street lot under the terms of the contract between plaintiff and defendant, and that the defendant received for the Eighty-fourth street lot on such sale the Eighty-sixth street property; but it seems to us that the referee erred in taking the accounting upon the theory he did, that is, by charging the defendant upon such accounting with the value of the Eighty-sixth street property at the time of the transfer or sale.
The Eighty-fourth street lot was sold, not for cash, but for the Eighty-sixth street property. The property received' was the pur*236chase price. It was to be accounted for. It belonged tti both parties/ The legal title was taken in defendant’s name, but equitably the plaintiff was entitled, to the undivided one-half thereof, subject to the payment or deduction therefrom of the cost of the Eighty-fourth street lot, under the terms of the contract.
The contract did not, in express terms, provide for any sale of the Eighty-fourth street property by way of the exchange thereof .for other property, and no such sale could have -been - made except by agreement of thé parties. They did agree to it, however, and the evidence shows that the fair intendment of the parties was that the plaintiff should have an interest in the property received therefor, the Eighty-sixth, street property.
The plaintiff testified that he had several interviews with 'the defendant at the time they were making the trade for the Eighty-sixth street property, and that the talk was that he, plaintiff, Was to have one-half of the profit when the Eighty-sixth street property was sold; that about the time the trade was made they had a talk, in which he, plaintiff, wanted his name in the deed of the Eighty-sixth street property, and defendant said no, but whenever the property was sold he, plaintiff, would be entitled to, and would get his one-half ; and that he, plaintiff, after that tried to procure a purchaser for the property.
Defendant did not deny the 'conversation above testified to by plaintiff, but he did testify that he did not remember the conversation referred to by plaintiff about the time the trade was made, except that he thought plaintiff did then make the remark that he ought to have a deed of one-half of the Eighty-sixth- street property.
The Eighty-sixth street property, as the purchase price of the Eighty-fourth street lot, stood in the place of cash,, which would have belonged to both parties 'if' cash had been received. Out of cash received, on a cash sale, the cost of the Eightytiourth street lot would first have been paid, and the balance would have been divided equally between the parties. The property received, instead of cash, stood in the same position. It was to be treated the same as the cash would have been if cash had been received. It was not real .estate held under the contract, and to be treated as real estate under the -contract,- the absolute title to which would vest in the defendant, if not sold prior to January, 1895, divested of any equitable interest in *237the plaintiff. It was real estate in which the plaintiff had an interest so long as it remained undisposed of, and plaintiff was entitled to have his interest determined and awarded to him, even though it was not disposed of until after January 1, 1895. The defendant had no right to the absolute title to the property by allowing therefor what it was worth at the time it was received in payment for the Eighty-fourth street lot. The plaintiff had no.right to charge the defendant with the value thereof at "that time. If the property thereafter increased in value, the plaintiff was entitled to his share, of the increase. If it decreased in value, the plaintiff was obliged to share in the loss by such decrease, In other words, the Eighty-sixth street property equitably belonged to both parties, the same as. though the legal title were vested in both, instead of in defendant, alone.
As a necessary result of these views, it follows that the plaintiff was entitled to have what he asked for in his complaint, an accounting as to the Eighty-sixth property and the amount received therefor, if sold, and, if not sold, to have his equitable rights therein adjudged and determined. The learned referee denied him this, relief, and in this he erred. The decision being, therefore, erroneous, the judgment should be modified by ordering a reference to-take an accounting as to the Eighty-sixth street property in accordance with the views herein expressed.
We do not think a full retrial of the case is necessary, but the judgment appealed from should be modified by providing for an order of reference to take an accounting as to the amount received by the defendant for the Eighty-sixth street property, to the end that, on the coming in of the report of the referee, final judgment may be rendered for the'relief to which the plaintiff is thus entitled. As so modified the judgment should be affirmed, without costs of this appeal to either party.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment modified as directed in opinion, arid affirmed as modified, without costs.