
    Ignatz Schwartz and Another, Appellants, v. Joseph Schultz, Respondent.
    Supreme Court, Appellate Term, First Department,
    December 16, 1926.
    Landlord and tenant — action to recover deposit to secure performance of lease — tenants, having terminated lease, are entitled to deposit in absence of counterclaim — inability to obtain fire department permit no bar to recovery.
    Plaintiffs who were unable to obtain a necessary permit from the fire department so that they might lawfully occupy defendant’s premises are entitled to the moneys deposited with the defendant to secure performance of a lease, where it appears that said plaintiffs abandoned possession and terminated' the lease after failing to obtain the permit; the inability of the tenants to obtain said permit does not bar recovery.
    Levy, J., dissents, with memorandum.
    Appeal by plaintiffs from a judgment of the Municipal Court, Borough of Manhattan, Third District, iti. favor of defendant.
    
      Sydney D. Robins, for the appellants.
    
      Shapiro & Witte [Samuel Witte of counsel], for the respondent.
   Per Curiam.

That the tenants undertook to procure the necessary permit from the fire department does not bar a recovery. It is undisputed that such permit could not be obtained, and the plaintiffs having abandoned possession and terminated the lease have a right, there being no counterclaim presented, to recover the moneys deposited with the landlord to secure performance of their covenants. (Raner v. Goldberg, 215 App. Div. 355.)

Judgment reversed, with thirty dollars costs, and judgment directed for plaintiffs for the relief demanded in the summons, with interest and costs.

Present — Bijur, O’Malley and Levy, JJ.

Levy, J.

(dissenting). Although the point is not raised by the appellant, I consider that Shedlinsky v. Budweiser Brewing Co. (163 N. Y. 437) is controlling upon us, and that the judgment below was, therefore, proper. Accordingly I dissent and vote to affirm.  