
    Robert Josephi, Respondent, v. Creston Company, Appellant.
    
      Guaranty — sum deposited as security for payment of rent which will accrue for last year of term — cannot be applied to payment of rent accruing in first year.
    
    
      Josephi v. Crestón Co., 188 App. Div. 97, affirmed.
    (Submitted October 21, 1920;
    decided November 16, 1920.)
    Appeal from a judgment entered June 9, 1919, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a decision of the court at a Trial Term, a jury having been waived, and directing judgment in favor of plaintiff. Plaintiff deposited with defendant a sum of money which according to the terms of an instrument at the time signed by both parties was received “ as security for the payment of the rent for the demised premises in the annexed lease which will accrue for the last year of the demised terms.” The lease in question was for five years. The lessor, a third party, defaulted in payment of rent during the first year of the term and was dispossessed, at which time the amount of rent due was greater than the amount deposited as security. In an action to recover the amount deposited, the Appellate Division held that said sum was deposited as security for rent accruing in the fifth year of the lease which was the last year of the demised term, and that it could not be applied in payment of rent accruing in the first year of the lease.
    
      Laurence A. Sieinhardt for appellant.
    
      Benjamin F. Kraft for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscook, Ch. J., Chase, Hogan, McLaughlin and Crane, JJ. Dissenting: Cardozo and Andrews, JJ.  