Plaintiff appeals from a judgment dismissing the complaint in an action brought to recover back moneys paid in advance by plaintiff to defendant for medical services to be rendered by the defendant as a physician at defendant’s office, said services to begin on the 20th day of September, 1916, and continue for one month thereafter. The action was begun on the 10th day «of July, 1917, nearly ten months after expiration of the term of treatment.
The uncontradicted evidence establishes that prior to the making of the contract dated September 21,
Plaintiff testified that subsequently defendant called him up on the ’phone, and, being told of plaintiff’s condition, stated: 111 would not keep your money; I will return it,” and that later, upon further demand being made for the money, defendant refused to return it, saying he regarded it as a “ retainer.” The rule governing eases of this character has been well stated by Bischoff, J., in Fisher v. Monroe, 12 N. Y. Supp. 273, as follows: “ The principle underlying these cases is that the contract was entered into by the contracting parties upon the implied condition of the continued ability of the party who is to render the services, to perform, and that, when unable to perform because of sickness or physical or mental incapacity proceeding from no wilful or deliberate conduct of thé party, such inability is in consequence of an act of God, and excuses performance. * * * the obligation of the party who is to receive the services, to pay is conditional upon the obligation of the party who is to ren
The rule would seem to be equally applicable to both parties to a contract where the services to be rendered and received were dependent upon the physical ability of plaintiff to attend for treatment and of defendant to give the- treatment. In the event of illness of the defendant and his physical inability to perform, he would not have been liable for damages for breach of contract (Town of Bleecker v. Balje, 138 App. Div. 706; Roberts v. Ely, 113 N. Y. 128; Spalding v. Rosa, 71 id. 40); but would have been obligated to return- to plaintiff the money paid in consideration of services subsequently to be rendered and not actually rendered. Mendenhall v. Davis, 52 Wash. 169.
If, by reason of defendant’s inability to perform through no fault of his, the contract ceased to be binding upon defendant, it became inoperative in like manner to the same extent in the event of similar disability on the part of the plaintiff. Stewart v. Loring, 5 Allen, 306.
There is no evidence to support the contention of defendant-respondent that the money was paid as a retainer. It was paid in contemplation of services to be rendered, the rendition of which, by reason of the continuing serious illness of plaintiff, became impossible. On the expiration of the period during which the monthly treatment was to have been rendered, the plaintiff became entitled to the return of the money, there being no proof of any expense having been incurred by defendant in preparation therefor prior to plaintiff’s permanent disability.
Bijur and Mullan, JJ., concur.
Judgment reversed, with costs.