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March 16, 1953


The opinion of the court was delivered by: BYERS

This is a bankruptcy trustee's action to recover $ 1,470 security for rental deposited by the bankrupt as tenant of the premises in which its operations were conducted. There are no issues of fact save as to some of the items alleged damage as asserted by the defendant.

The lease was dated April 29, 1949, the term being five years from June 1st of that year, to May 31st, 1954; rental was $ 5,880 per year, payable monthly ($ 490) on the first day of each month. It is a prolix document of 35 printed and 10 typewritten paragraphs, the portions material to this controversy being (Exhibit 4):

 '44. Tenant will deposit with the Landlord three months rent as security, the receipt of which is acknowledged by the Landlord by the signing of this instrument, for the full and faithful performance by the Tenant of all the terms, covenants and conditions of this lease on the part of the Tenant to be performed, which said sum shall be returned to the Tenant after the time fixed as the expiration of the term herein provided the Tenant has fully and faithfully carried out all of said terms, covenants and conditions on Tenant's part to be performed. In the event of a sale or transfer of the major lease aforementioned, subject to this lease, the Landlord shall have the right to transfer the security to the vendee, assignee or transferee for the benefit of the Tenant and the Landlord shall be considered released by the Tenant from all liability for the return of such security; and the Tenant agrees to look to the new Landlord solely for the return of the said security, and it is agreed that this shall apply to every transfer or assignment of the security made to a new Landlord. Such sale, transfer or assignment by the Landlord must be bona-fide.

 '45. The security deposited under this lease shall not be mortgaged, assigned or encumbered by the Tenant without the written consent of the Landlord.'

 The fact of due deposit of the security, $ 1,470, is not in issue; the defendant refuses to pay it over to the trustee in reliance upon the following provisions of the lease:

 '21. (b) If * * * at any time during the term hereby demised there shall be filed by or against the Tenant in any court * * * of the United States * * * a petition in bankruptcy * * * this lease, at the option of the Landlord, exercised within a reasonable time after notice of the happening * * * may be cancelled and terminated and in which event neither Tenant nor any person claiming through or under Tenant by virtue of any statute or of an order of any court shall be entitled to possession or to remain in possession of the premises demised but shall forthwith quit and surrender the premises, and, Landlord in addition to the other rights and remedies Landlord has by virtue of any other provision herein or elsewhere in this lease contained or by virtue of any statute or rule of law, may retain as liquidated damages any rent, security, deposit or moneys received from Tenant * * *.'

 An involuntary petition in bankruptcy was filed in this Court against the tenant on May 18, 1951 and adjudication ensued on June 6, 1951.

 The bankrupt's rent was collected in full by the landlord through the month of May 1951, so that none was unpaid at the filing of the petition. Also the premises were vacated during that month, and the landlord at once took possession, and re-rented the premises for a term of five years commencing June 15th 1951, at a rental of $ 6,600 per annum, or $ 720 per year over the rent reserved in the bankrupt's lease which had three years to run when the new one was made; the increased rental for that period was therefore $ 2,160. The defendant paid brokerage on the new lease in the sum of $ 990, of which three-fifths in $ 594.

 The new lease is in evidence and recites the deposit of $ 1,650, (3 months rent at $ 550), as security for the payment of rents and performance of the covenants in the lease; thus the landlord so far from suffering any damages whatever, stands to make a substantial profit from the new tenancy which resulted from this bankruptcy.

 Nor is its own position free from legal criticism. The security paid by the bankrupt concededly was commingled with its own funds in the corporation's only bank account. It was testified that the item was carried on the ledger of the defendant as an item of indebtedness but that does not meet the requirements of Section 233 of the Real Property Law of New York, McK. Consol. Laws, c. 50, added in 1935 and twice amended:

 'Money deposited or advanced for use or rental of real property

 'Whenever money shall be deposited or advanced on a contract for the use or rental of real property as security for performance of the contract or to be applied to payments upon such contract when due, such money, with interest accruing thereon, if any, until repaid or so applied, shall continue to be the money of the person making such deposit or advance and shall be held in trust by the person with whom such deposit or advance shall be made and shall not be mingled with the personal moneys or become an asset of the person receiving the same, but may be disposed of as provided in section thirteen hundred and two-a of the penal law. Any provision of such a contract whereby a person who so deposits or advances money waives any provision of this section is absolutely void.'

 The state courts have interpreted the foregoing to mean what it says: Mallory etc. v. Barving etc., 300 N.Y. 297, 90 N.E.2d 468; Pollack v. Springer, 195 Misc. 523, 92 N.Y.S.2d 847, modified 196 Misc. 1015, 95 N.Y.S.2d 527.

 These cases hold that the sum deposited as security is the property of the tenant, and as to it, the relationship between the parties is not that of debtor and creditor, but by operation ...

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