
    Louis Schusterman, Respondent, v. Kew Forest Construction Corporation, Appellant.
   Order denying defendant’s motion to dismiss the complaint reversed on the law, with ten dollars costs and taxable disbursements, and motion granted, with ten dollars costs. The action to recover the deposit of $2,500 security, less the amount of the judgment obtained against the tenant for non-payment of rent, is premature. The landlord is entitled to retain the deposit to secure it against damages to be measured by the difference between the rent fixed by the lease and the amount the landlord may receive during the balance of the demised term. Lazansky, P. J., Young, Kapper, Carswell and Tompkins, JJ., concur.  