Opinion
February 12, 1925.
Henry Goldstein, for the appellant.
Kendler Goldstein [ Julius Kendler of counsel], for the respondent.
This action was brought to recover the rent of an apartment for the months of June and July, 1924, the same being payable on the first of each month in advance.
Plaintiff put in evidence a final order obtained against the defendant by default by reason of the non-payment of the rent of the same two months in which the precept was dated July tenth and the order entered on July seventeenth. This, of course, on familiar principles, was conclusive on the defendant's present contention of either constructive eviction or surrender and acceptance prior to the accrual of the rent for the non-payment of which the final order was entered. ( Reich v. Cochran, 151 N.Y. 122; McCotter v. Flinn, 30 Misc. 119.)
The defendant's further claim that he is entitled to be credited with $120 which he deposited with the landlord under the lease "as security for the last month's rent" is not sustained by the terms of the lease which read "as security for the faithful performance of the covenants of the lease and to be applied to the payment of the last month's rent when due." Under the 8th paragraph of the lease, however, the tenant covenants to pay any deficiencies in rent in the event and after he may be dispossessed. This in itself warrants the retention of the security by the landlord.
Judgment reversed, with thirty dollars costs, and judgment directed in favor of plaintiff as prayed for in the complaint and dismissing the counterclaim.
All concur; present, BIJUR, MULLAN and COTILLO, JJ.