Opinion
November 9, 1959
Present — Wenzel, Acting P.J., Beldock, Murphy, Hallinan and Kleinfeld, JJ.
In an action by a lessee of real property against the lessor to recover damages for fraud and breach of warranty, and to recover back the security deposited under the lease on the theory of conversion, the appeal is (1) from a judgment entered after trial before the court without a jury in favor of the lessee, and (2) from an order denying the lessor's motion for a new trial and for other relief. Judgment unanimously affirmed, with costs, and order unanimously affirmed, without costs. The lessor, appellant herein, expressly warranted that the use of the demised premises as a used car lot was permissible. The warranty was false. Recovery of damages thereon was proper even though the lease for the nonpermitted use was illegal. ( Municipal Metallic Bed Mfg. Corp. v. Dobbs, 253 N.Y. 313.) The proof as to the conversion of the security by the appellant was ample.