
    Metropolitan Life Insurance Company, Landlord, Appellant, v. Butler & Currie, Inc., Tenant, Respondent.
    Supreme Court, Appellate Term, First Department,
    April 12, 1934.
    ' Tanner, Sillcocks & Friend [Julius C. Krause of counsel], for the appellant.
    
      George Dyson Friou, for the respondent.
   Per Curiam.

Under the controlling decisions which have overruled the doctrine that moneys deposited with a lessor as security for performance of the covenants of a lease of real property are held in a fiduciary capacity, and which adjudicate that the relation arising upon such a deposit is merely that of debtor and creditor (Rambach v. Heights Theatres, Inc., 239 App. Div. 203; Levinson v. Shapiro, 238 App. Div. 158; affd., 263 N. Y. 591), the answer is insufficient on its face. By statute, the rule is different with respect to the deposit of security under a rental of personal property. (Gen. Business Law, §§ 382-a, 382-b.) No objection is made to the form of the landlord’s application.

Order reversed, with ten dollars costs, and final order and judgment directed for the landlord.

All concur; present, Lydon, Frankenthaler and Shientag, JJ.  