
    James E. Kelly, Respondent, v. Alma C. Stem, Appellant.
    (Supreme Court, Appellate Term, First Department,
    March, 1913.)
    Lease — landlord and tenant — contracts — deposit as security for rent under a lease.
    An agreement for the letting and renting of certain premises for a specified term at the rental of a certain sum per annum, payable monthly in advance, signed by both parties, is a valid contract.
    Where the contract recited that a certain sum had been paid on account, first month’s rent, a claim of the tenant who had breached the contract that said sum was deposited as security for rent under a lease to be subsequently executed was untenable; though by the contract it was contemplated that within five days the agreement should be more precisely expressed in another form of lease.
    Appeal by defendant from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, fifth district, rendered in favor of the plaintiff.
    'Samuel Bitterman; for appellant.
    James E. Kelly, for respondent.
   Seabury, J.

Plaintiff sues to recover $65 deposited with the defendant. The parties signed a written agreement wherein the plaintiff is referred to as the tenant, 'and the defendant is referred to as the landlord. This agreement recites that the defendant “ hereby lets ” and the plaintiff “ the undersigned tenant hereby rents ” a certain apartment in the premises Mo: 526 West' One Hundred and Eleventh street, borough of Manhattan, city of Mew York, for a term beginning October 1,1912, and ending September 30, 1913, at the rental of $780 per annum, payable monthly in advance. The agreement also contained the following clause: The tenant hereby agrees to pay the first month’s rent and to sign 186 • Blumberg form of lease within, five days from this date, other-wise, this agreement may be cancelled at the landlord’s option. Deposit paid on account first month’s rent $65.” The agreement signed by the parlies contained all the elements of a valid contract. The fact that it contemplated that within five,days the agreement should be more precisely expressed in another form of lease did not “impair the validity of the original contract. Marcus v. Collins Building Construction Co., 27 Misc. Rep. 784. The $65 was paid as stated in the agreement on account first month’s rent.” There is, therefore, no room for the claim that this money was deposited as security for the rent in a lease to be subsequently executed. The plaintiff, having entered into a written lease and paid something on account of the first month’s rent and having broken his lease, has been permitted to recover, a judgment for the part of the rent which he paid on account. Such a judgment is contrary to law, and cannot be permitted to stand.

Gerard and Bijur, JJ., concur.

Judgment reversed with costs, and complaint dismissed, with costs.  