
    Tullio Petito, Appellant, v. Natale Aiello, Respondent.
    Supreme Court, Appellate Term, Second Department,
    February 10, 1944.
    
      Benjamin Shedler for appellant.
    
      Alex Nechamkin for respondent.
   Memorándum

Per Curiam.

The check was given as a deposit and so states. In the absence of any evidence to the contrary, it must be assumed that the payment made by the plaintiff in contemplation of the purchase of the equipment and the renting of the premises wherein the same was housed, was given as security for damage, if any, suffered by the defendant by reason of the plaintiff’s refusal to consummate the sale and the lease. (Brod feld v. Schlanger, 104 N. Y. S. 369; Becker v. Rothschild, 141 N. Y. S. 528.) Defendant proved no damage and therefore plaintiff was entitled to judgment in his favor.

Judgment and order unanimously reversed, upon the law, with $30 costs to the plaintiff, and judgment directed for the plaintiff for the sum of $100 with appropriate costs in the court below.

HacCrate, Smith and Steinbrink, JJ., concur.  