(dissenting). I dissent and vote for reversal. The action is not prematurely brought. The case appears to me to *557come squarely within the decision of Kottler v. New York Bargain House, Inc. (242 N. Y. 28).
The deposit here was to be used for the disbursements, costs and expenses that might be incurred in regaining possession. The evidence is that the actual cost of removing plaintiff by summary proceedings was at most $560. The disparity between this amount and the deposit of $12,000 requires a holding that this was in the nature of a penalty. (Lenco, Inc., v. Hirschfeld, 247 N. Y. 44.) The defendant, therefore, should recover all sums over and above those actually and necessarily incurred in removing it.
The judgment should be reversed and judgment for such difference granted for plaintiff.
Judgment affirmed, with costs.