
    Laforest A. Shattuck, Respondent, v. Charles Buek, Appellant.
    First Department,
    November 7, 1913.
    Landlord and tenant — security for payment of rent — when assignee of lease cannot recover security from landlord.
    Where a lease provided that the tenant should pay three months’ rent upon the delivery of the same, one-third thereof to be applied upon the first month’s rent and the balance to be retained by the lessor as a guaranty fund to be applied upon the rent of the last two months of the term, and the lease is assigned with the consent of the landlord, the assignee cannot recover from the landlord the sum deposited by the original tenant as security in the absence of an assignment of the claim to her.
    Appeal by the defendant, Charles Buek, from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of February, 1913, affirming a judgment of the City Court of the city of New York in plaintiff’s favor and an order denying defendant’s motion for a new trial. An appeal is also taken from the judgment entered in the office of the clerk of the City Court of the city of New York on the 11th day of February, 1913, which affirmed the judgment already entered therein. The trial in the City Court was before the court without a jury.
    
      Carlisle Norwood, for the appellant.
    
      John O’Connell, for the respondent.
   Scott, J.:

On August 29, 1901, defendant leased to one A. E. Rogers a house, etc., on G-ramercy Park at the yearly rent of $4,500, payable $375 per month.

The lease contained the following clause: “Three months rent, namely Eleven hundred and Twenty-five dollars ($1125) shall be paid upon the execution and delivery of this lease, of which $375 shall apply upon the first month’s rent of the term hereby granted; and the balance $750 shall be retained by the lessor as a guaranty fund to be applied upon the rent of the last two months of the said term, upon which Q% interest shall be allowed.” One Susan A. Briggs guaranteed the payment of the rent.

At some time (when does not appear) A. E. Rogers, the lessee, seems to have assigned this lease to one Marion S. Furber. No actual assignment is produced, but there is a consent by defendant to such an assignment, and also a consent by the surety. September 5, 1903, Marion S. Furber assigned the lease to Ella F. Shattuck, who .was thereafter recognized by defendant as his tenant. No reference to the deposit of $750 is contained in this assignment. On January 16, 1904, Mrs. Shattuck and defendant had a settlement when it was found that she owed $1,122 for rent. She gave a note for this sum, the lease was canceled and Mrs. Shattuck remained in possession as a monthly tenant. She assigned to defendant a mortgage for $7,500 on some property in Pennsylvania. In December, 1906, one Badford, who had bought the mortgaged property from Mrs. Shattuck, paid defendant the amount of the note with all interest and charges. Mrs. Shattuck assigned to plaintiff all her interest in the $750. I can see no principle upon which plaintiff can recover.

As I read the covenant, the $750 was deposited as security by Mrs. Rogers, the original tenant, and at all times belonged to her subject to any claim upon it for the last two months’ rent. If this be so Mrs. Shattuck never acquired any right to it, for no assignment of this sum from Mrs. Rogers is shown.

The plaintiff, appreciating this difficulty, claims that the effect of this deposit was to pay, at the time the deposit was made, the rent for the last two months of the lease,' and that when Mrs. Shattuck paid the rent for these months she overpaid defendant. We consider that the $750 was deposited as security, not paid in advance as rent, but even if it were to be treated as a payment and it be found that Mrs. Shattuck consequently overpaid defendant, the case is barren of allegation or proof to justify a recovery of .money voluntarily paid.

It follows that the determination of the Appellate Term and the judgment of the City Court must be reversed, and a new trial granted, with costs to the appellant in all courts to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Determination of Appellate Term and judgment of City Court reversed and new trial granted, with costs to appellant in all courts to abide event. Order to be settled on notice.  