
    The Broadway Renting Company, Respondent, v. Harry Wolpin et al, Appellants.
    (Supreme Court, Appellate Term,
    May, 1908.)
    Landlord and tenant — Rent and advances — Rights and liabilities — Deposits and other security — Penalty or liquidated damages. Damages — Liquidated damages — Liquidated damages or penalty.
    In the absence of an agreement that the deposit given by an intending tenant as security for his execution of the lease is to be deemed liquidated damages, it will not be presumed that such was the intention and he is entitled to a return of the deposit, in the absence of proof of damages to the owner of the premises.
    Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan.
    Abraham Harawitz, for appellants.
    Stroock & Stroock (S. N. Stroock and Charles Levy, of counsel), for respondent.
   Per Curiam.

It is difficult to distinguish this case from that of Weinberg v. Greenberger, 47 Misc. Rep. 117. There, as here, a deposit was given by the proposed lessee, as security for plaintiff’s fulfillment of its promise to execute a lease. There was no agreement that the deposit was to be deemed a penalty, or as liquidated damages; and no damages were shown to have been sustained by the plaintiff, by reason of the defendants’ refusal to execute the lease, even assuming that the refusal was without just reason.

The cases cited by respondent, of which Pleischman v. Plonk, 19 Misc. Rep. 649, and Lawrence v. Miller, 86 1ST. Y. 131, are examples, are to be distinguished from a case like this, in that in the latter the deposit is in the nature of security to insure the faithful performance of an agreement, whereas in the former the money is paid upon a contract by way of partial performance.

The distinction is pointed out in Chande v. Shepard, 122 1ST. Y. 397, 402.

As it must be assumed from the record before us that plaintiff sustained no damages, the defendants would be entitled to a return of the check; and hence no recovery may be permitted thereon.

Present: Gildersleeve, Giegerich and Greenbaum, JJ.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  