#### Henry Weinberg, Appellant, *v.*Bennie Greenberger et al., Respondents.

(Supreme Court, Appellate Term,

April, 1905.)

Lease — Breach of agreement to take — Deposit—Construction of receipt given therefor.

Where the receipt given by defendants to plaintiff for the amount of a deposit, at the time of the making of an agreement to lease a tenement house, did not specify for what purpose it was made, but upon the most favorable view for the defendants it was to secure plaintiff’s fulfillment of his agreement to take the lease and not as a penalty or liquidated damages, defendants are not authorized to retain the deposit merely because of plaintiff’s refusal to take the lease, and no actual damage having been pleaded or shown it would be assumed that none was suffered and upon the facts the plaintiff is entitled to a return of the deposit.

Appeal by the plaintiff from a judgment rendered in favor of the defendants in the Municipal Court of the city of New York, fifth district, borough of Manhattan.

Abraham H. Solotaroff, for appellant.

Charles Schwick, for respondents.

*118Scott, J.

On September twenty-seventh plaintiff and defendants made an agreement for a lease by defendants to plaintiff of a tenement house. At the time the plaintiff paid defendants the sum of fifty dollars, for which defendant gave the following receipt.

" *Sept.*27, 1904.

“ Received of Mr. Weinberger a deposit of the sum of fifty dollars on the leece (sic) of the house of 705 E. 12th St. N. Y. The leece (sic) should be made on October 17th 1904. The Lessee (sic) should take place on Nov. 1, 1904 which with the security of two months rent, and the rent should be paid each and every fifteenth of the month. The leece (sic) is agreed for the sum of twenty hundred fifty dollars.”

When the time came for making the lease the parties could not agree as to its terms, and no lease was actually made. The justice seems to have found that the failure to make a lease was due to plaintiff’s unreasonable insisteuce upon having inserted therein certain unusual clauses not previously agreed upon: The evidence would justify such a finding and we shall assume that the whole fault for the non-execution of the lease rests upon plaintiff’s unreasonable refusal to accept -and execute the lease that was tendered to him. This does not, however, justify the judgment in behalf of defendants. It is to be observed that the receipt given by ' defendants does not specify for what purpose the deposit is made. It does not appear to have been intended as .security for the rent to be paid under the lease, for the receipt provides for the security of two months rent, and even if it had been intended as security for rent, it would not have been forfeited for no rent, as such, ever accrued. The most favorable view for the defendants, and as we think the true Anew, is that it was given as security for plaintiff’s fulfillment of his agreement to take a lease. As has been found he did so refuse, but this fact alone does not authorize defendants to retain the sum. There is nothing in the receipt to justify a finding that the deposit was given as a penalty, or as liquidated damages in case of a refusal. It Avas therefore a deposit as security for actual damage, if any, suffered by the *119defendant by reason of plaintiff’s default. Ho such damage was pleaded or shown. It must be assumed therefore, for the purposes of this appeal, that no such damage was suffered. Hence the contingency against which the deposit was made did not arise,-and the plaintiff is, upon the facts shown in the present record, entitled to a return of the deposit.

Levehteitt and Gbeehbaum, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.