#### Benny Seletzsky, Plaintiff-Appellant, *v.*Caroline A. James, Ada E. Carter and William Miles, Defendants-Respondents.

(Supreme Court, Appellate Term,

December, 1910.)

Landlord and tenant: Termination of relation — Dispossession by summary proceedings: Rent and advances — Rights and liabilities — Deposits and other security.

Where a tenant makes a deposit to secure his faithful performance of all the conditions and covenants of the lease, the landlord, in the absence of a specific provision in the lease a.s to when and under what conditions the deposit shall be returned or accounted for, is entitled to retain the deposit until the expiration of the full term of the lease.

A lease for a term of years is terminated by the tenant’s re*613moval in summary proceedings for nonpayment of rent, notwithstanding the lease provides that some of its covenants shall survive the expiration of the term.

Where a tenant made a deposit for his faithful performance of all the conditions and covenants of a ten-year lease and therein agreed that the amount of the deposit should be retained by the landlord until thirty days' after the expiration or termination of ■the lease and then returned to the tenant, or duly accounted for, the landlord, after the removal of the tenant' in summary proceedings for nonpayment of rent, is only entitled to so much ‘of the deposit as will compensate him for such damage as had accrued for a breach of the covenants of the lease prior to the date of the tenant’s removal, and at the expiration of thirty days thereafter the tenant is entitled to recover the deposit.

Appeal by tbe plaintiff from a judgment of tbe City Court of tbe city of New York.

Henry Kuntz (Abrabam P. Wilkes, of counsel), for ap^ pell ant.

Greene, Hurd & Stowell (George F. Hurd, of counsel), for respondents.

Guy, J.

The plaintiff herein appeals from a judgment rendered in favor of tbe defendants dismissing plaintiff’s complaint upon tbe merits. Tbe action was tried upon an agreed statement of facts from wbicb it. appears that, in November, 1904, plaintiff’s assignor entered into a lease by wbicb sbe hired from defendants certain premises for a period of ten years, commencing November 1, 1904, and deposited with defendants $1,000, as agreed, for tbe faithful performance of tbe covenants of tbe lease. Under tbe tenth clause of tbe lease tbe landlords were given tbe right of reentry in tbe event of a breach of covenant on the part of the tenant and to relet tbe premises as agents of tbe tenant, tbe tenant to remain liable for any deficiency. It appears, further, that plaintiff’s assignor entered into possession under tbe lease and remained in possession until February 6, 1908, on wbicb date sbe was dispossessed for non-payment of rent for tbe month of January, 1908; that on tbe same day sbe -assigned her claim against these defendants for tbe recovery *614of the $1,000 deposit and that plaintiff immediately thereafter demanded.from defendants either the return of the deposit money or an accounting thereof, which demand defendants refused. On the trial defendants contended that they were entitled to retain.the deposit until the expiration of the full term of ten years covered by the'lease, and that the action was, therefore, prematurely brought. Defendants also alleged that plaintiff’s assignor was in arrears for rent due on January 15, 1908, amounting to $229.15. Plaintiff agreed that this sum should be deducted from the amount claimed by plaintiff, conceding it to be a proper counterclaim. Defendants also alleged that in March, 1908, the defendants expended the sum of $2,000' in making repairs to the premises which should have been made, under the provisions of the lease, by plaintiff’s assignor. Plaintiff contended that this cause of action in favor of defendants as against plaintiff’s assignor could not be counterclaimed in this action, under section 502 of the Code, as it matured after the assignment to plaintiff and’ after defendants had notice of the assignment to plaintiff by the commencement of this action. Defendants also counterclaimed the sum of $1,125 by reason of a loss of rent resulting from • defendants’ re-letting of premises as agents of plaintiff’s assignor. Plaintiff consented that there should be a deduction from plaintiff’s claim of so much of the loss of rent as had been incurred prior to the time when plaintiff’s cause of action accrued. The court below held that under the terms of the lease defendants had a right to retain the deposit until the expiration of the full term of ten years covered by the lease. This is the main question involved on this appeal. The deposit having been given to secure the performance of all the conditions and covenants of the lease, the defendants would unquestionably have been entitled to retain said sum until the termination of the period of ten years in the absence of a specific agreement in the lease as to when and under what conditions said deposit should be returned or accounted for. The lease, however, contained the following provision: “'Said sum of money shall be held and retained by the said landlords *until thirty days after the expiration or termina*
      *615
      *Mon of this lease, at which time it shall he returned to the tenant or duly accounted for.”*

There can be no question that the lease expired and terminated on the 6th day of February, 1908, by reason of the removal of the tenant in summary .proceedings. The agreement between the parties, as set forth in the lease, that some of the covenants thereof should survive the expiration or termination of the lease, does not alter this fact.

“ The issuing of a warrant for the removal of a tenant from demised premises * * * annuls * * * the relation of landlord and tenant, except that it does not prevent a landlord from recovering, by action, any sum of money, which was, at the time when the precept was issued, payable by the terms of the agreement, as rent for the premises; or the reasonable value of the use and occupation thereof, to the time when the warrant was issued * * * *it terminates the lease, as such, the same as if it had been ‘volu/ntarily canceled and given up/ ”*Michaels v. Fishel, 169 N. Y. 381.

“ The entry of the landlord under the warrant * * * cancelled the lease and annulled the relation of landlord and tenant. *When the landlord elected to assert that right he waived all claim to the deposit,*except so far as it wa« necessary to apply it in payment of rent then due or accrued.” Caesar v. Rubinson, 174 N. Y. 492-498. See also Eleishauer v. Bell, 44 Misc. Rep. 240.

It follows that the plaintiff’s assignor, at the expiration of thirty days after re-entry by the landlords, had a good cause of action against the defendants for the return of the 'deposit less such damages, and only such damages, as had accrued for breach of the covenants of the lease prior to that date, which cause of action has been duly assigned to thé plaintiff. It was error, therefore, to dismiss the complaint on the merits.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Platzek and Gavegan, JJ., concur.

Judgment reversed.