
    Max Kahn, Appellant, v. Philip Tobias, Respondent.
    (Supreme Court, Appellate Term,
    February, 1896.)
    1. Landlord and tenant — Deposit.
    Where a deposit was made merely as security for the payment of rent, and the lease is rescinded during the term, the tenant is entitled to the balance of such deposit remaining after applying it to the rent due at the time of the rescission.
    2. Same — Overpayment of rent.
    Where the rent is payable monthly in advance the contract Is entire as to each month, and a tenant who is dispossessed during the month after a partial payment is not entitled to recover back any portion of the amount so paid as an overpayment.
    Appeal from judgment of Fourth Judicial District Court. Action for money had and received.
    Samuel Schlesinger, for appellant..
    No appearance for respondent.
   Bischoff, J.

The plaintiff leased certain premises from the. defendant for a term of eight months under a verbal agí cement, whereby he was to pay $45 rent monthly. He entered into possession the 1st day of September-, 189.5, and paid $45, which sum, according to the testimony, was for security for rpnt during the remainder of the term. On October 1st he failed to jmy his rent for that month, hut upon the 8th made payment of $30, and received an extension of time until the • 14th within which to pay the balance;.failing to do this, ■ however, he was evicted upon the 15th of that month, and has brought this action to recover hack the $45 deposited as security, and also the sum of $7.50, representing the per diem overpayment for the actual period of occupation during October.

According to the testimony, the deposit was made as security .for payment of rent only, and'to insure performance of. no other covenant. But with the rescission of the contract of lease by the defendant there was nothing which could thereafter accrue' in the way of rent, and his damages arising from nonpayment of rent alone called for an application of the sum deposited; to the excess the plaintiff was entitled. Scott v. Montells, 109 N. Y. 1.

. "Upon the 15th day' of October the lease ceased to exist, the . defendant having elected to terminate it for the plaintiff’s failure' to pay the balance of the October rent, and, while the evidence supports, the inference that this rent was payable upon the first day of the month, yet at the time of the termination of the contract there was due to the'defendant but $15 to which the security was to be applied; and, therefore, the plaintiff was entitled to the balance of $30. ■

The claim- for the per diem overpayment was, however, properly disallowed, since the tenant’s possession for the first fifteen days of October was conditional upon his payment, of the' whole • month’s rent. His contract was entire and with his nonperformance any claim to- the $30 paid naturally failed. Since the evidence does not support- the. judgment in favor of the defendant, a new trial must he had. ■ •

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

¡' McA.dam, J., concurs.

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