
    Ralph Bash et al., Respondents, v. Hugh J. Sheeran, as Receiver of New York Railways Company, Appellant.
    (Argued March 30, 1027;
    decided May 3, 1927.)
    
      Landlord, and tenant — lease ■— action by tenants to recover sum deposited, as security for performance of covenants of lease ■ — • defense of breach of covenant to make alterations and repairs.
    
    
      Bash v. Sheeran, 216 App. Div. 800, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 26, 1926, unanimously affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court. The action was to recover a sum deposited as security under a written lease to plaintiffs by defendant’s predecessor of real property. The defense was that plaintiffs had failed to make certain alterations and repairs in accordance with covenants in the lease. Plaintiffs’ evidence tended to show that the tenant in possession had prepared plans for the improvements and transmitted them to defendant for approval, but that no notice of approval was ever received by the plaintiffs. A year after the plans were submitted the premises were partially destroyed by fire. A year thereafter plaintiffs, pursuant to the fire clause in the lease, served notice that they elected to terminate the same. The trial court found that in the interval between the fire and termination of the lease plaintiffs remained in possession as agents of the lessor and not as tenants.
    
      Henry J. Smith and Eugene J. Noyes for appellant.
    
      Emanuel H. Reichart and Samuel Hettinger for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.  