
    Ina C. Hughes, Appellant, v. Monroe M. Goldstein, Respondent.
    Supreme Court, Appellate Term, First Department,
    February 12, 1925.
    Landlord and tenant — action for rent of premises from which tenant was dispossessed for non-payment of rent — final order of dispossession conclusive as against tenant’s claim of constructive eviction — -tenant not entitled to amount deposited as security for rent.
    A final order obtained by the plaintiff, landlord, against the defendant, tenant, by default for non-payment of the rent of the premises, in an action by the landlord to recover rent for two months’ occupancy of an apartment, is conclusive as against the tenant’s defense of constructive eviction or surrender and acceptance prior to the accrual of the rent for the non-payment of which the final order was entered.
    Moreover, the tenant is not entitled to be credited with the amount deposited as security under the lease for the last month’s rent, where the lease provides that the tenant covenants to pay any deficiencies in rent in the event and after he may be dispossessed, and that the security is to be applied to the payment of the last month’s rent when due.
    Appeal by plaintiff from a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fourth District, in favor of defendant, after a trial by a judge without a jury.
    
      Henry Goldstein, for the appellant.
    
      Kendler & Goldstein [Julius Kendler of counsel], for the respondent.
   Per Curiam:

This action was brought to recover the rent of an apartment for the months of June and July, 1924, the same being payable on the first of each month in advance.

Plaintiff put in evidence a final order obtained against the defendant by default by reason of -the non-payment of the rent of the same two months in which the precept was dated July tenth and the order entered on July seventeenth. This, of course, on familiar principles, was conclusive on the' defendant’s present contention of either constructive eviction or surrender and acceptance prior to the accrual of the rent for the non-payment of which the final order was entered. (Reich v. Cochran, 151 N. Y. 122; McCotter v. Flinn, 30 Misc. 119.)

The defendant’s further claim that he is entitled to be credited with $120 which he deposited with the landlord under the lease as security for the last month’s rent ” is not sustained by the terms of the lease which read as security for the faithful performance of the covenants of the lease and to be applied to the payment of the last month’s rent when due.” Under the 8th paragraph of the lease, however, the tenant covenants to pay any deficiencies in rent in the event and after he may be dispossessed. This in itself warrants the retention of the security by the landlord.

Judgment reversed, with thirty dollars costs, and judgment directed in favor of plaintiff as prayed for in the complaint and dismissing the counterclaim.

All concur; present, Bijur, Mullan and Cotillo, JJ.  