
    Isidore Halpern, Appellant, v. Manhattan Avenue Theatre Corporation, Respondent.
    Landlord and tenant — when action to recover sum deposited by tenant to protect landlord premature.
    Where a lessee deposits with the lessor a sum of money “ as security ” to protect the landlord against loss and damage during the term of a lease for four years and two months and the lessee is thereafter dispossessed for non-payment of rent, an action to recover the deposit commenced within four months after the beginning of the leasehold term is premature.
    
      Halpern v. Manhattan Ave. Theatre Corpn., 173 App. Div. 610, affirmed.
    (Submitted February 26, 1917;
    decided March 13, 1917.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1916, which affirmed an order of Special Term granting defendant’s motion for judgment on the pleadings. The action is one to recover a sum of money deposited by the plaintiff’s assignors as tenants with the defendant as landlord as security for the faithful performance by the tenants of the covenants and conditions of a written lease. The complaint alleged that the lessees having omitted to pay rent due, the lessor instituted summary proceedings and dispossessed them from the leased premises, and asks judgment for the amount of the deposit, less the sum due the lessor for rent.
    
      The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action ? ”
    
      Henry Pearlman and Charles Tolleris for appellant.
    
      Clayton J. Heermance and S. Michael Cohen for respondent.
   Per Curiam.

The six thousand dollars was deposited “ as security ” to protect the landlord against loss and damage during the term of the lease as prescribed thereby. Many covenants of the lease, by express agreement of the parties, survive the judgment in the summary proceeding and the execution of the warrant thereon. (Michaels v. Fishel, 169 N. Y. 381, 387; Hall v. Gould, 13 N. Y. 127,134; Anzolone v. Paskusz, 96 App. Div. 188; Feyer v. Reiss, 154 App. Div. 272; Slater v. Von Chorus, 120 App. Div. 16.) This action, which was commenced within four months after the beginning of the leasehold term, is premature and cannot be sustained.

The other questions presented are not passed upon.

The order should be affirmed, with costs, and question certified answered in the negative.

Hiscock, Ch. J., Chase, Cuddeback, Hogan, Pound, McLaughlin and Andrews, JJ., concur.

Order affirmed.  