
    Bedford Ice Palace, Inc., Appellant, v. Brooklyn Trust Company, as Trustee for Amory Leland and Arthur S. Leland, Individually, Respondents.
   Action to recover money deposited by a tenant with a landlord under a lease of real property. Judgment dismissing the complaint and in favor of defendant Brooklyn Trust Company, as trustee, upon its counterclaim for a claimed amount of rent due in excess of the amount of the deposit, reversed on the law and a new trial granted, costs to abide the event. The court erroneously excluded evidence as to the use to which the property was put by the landlord subsequent to the eviction of the tenant. If it be found that the user was for the landlord’s own purposes, a surrender of the premises may have been effected which would entitle the plaintiff to the return of the money deposited, or so much thereof as had been applied to the extinguishment of the rent due following the date when any such unauthorized user by the landlord occurred. (2 McAdam Landl. & Tenant [5th ed.], pp. 1356,1359; Saracena v. Preisler, 180 App. Div. 348, 353; Hand v. Rifkin, 263 N. Y. 416, 420.) The judgment in the summary dispossess proceeding was not res adjudicata as to the first cause of action, which is based on facts transpiring, if at all, subsequent to that judgment, and concerns an issue which could not be litigated in the summary dispossess proveeding. (Rosenfeld v. Aaron, 248 N. Y. 437; Lenco, Inc., v. Hirschfeld, 247 id. 44.) Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.  