
    Siegel Equities, Inc., Landlord, Appellant, v. “ John ” Farries, Tenant, Respondent.
    Supreme Court, Appellate Term, First Department,
    May 28, 1946.
    
      
      Nathan Finkelstein and Alexander R. Nelson for appellant.
    No appearance for respondent.
   Per Curiam.

Memorandum The landlord’s-failure to paint tenant’s apartment, thereby breaching the alleged agreement to do so is no defense to the proceeding for nonpayment of the due rent (Douglas v. Chesebrough Building Co., 56 App. Div. 403; 1225 Fulton Avenue Corporation v. Carbonell, 24 N. Y. S. 2d 749).

). The final order should be modified by striking therefrom the provisions qualifying the landlord’s right to withdraw the money deposited in the court below to the credit of the landlord, and as modified affirmed without, prejudice to any claim the tenant may have against the landlord for breach of alleged agreement to paint her apartment.

Shientag, McLaughlin and Hecht, JJ., concur.

Ordered accordingly.  