It is alleged in the complaint that the defendant leased to the plaintiff certain premises at a certain yearly rental, payable in equal monthly installments, and that the plaintiff, upon execution and delivery of the lease, deposited with the defendant the sum of $500 security for the fulfillment of the terms of said lease, “ said sum to be repaid to the plaintiff at the expiration of the said lease; ” that the defendant instituted summary proceedings against the plaintiff; that a final order was duly made awarding to the defendant possession of the premises described in the complaint; that the usual warrant was duly signed and issued; that the plaintiff removed from said premises, and possession of said premises was restored to the defendant, and the said lease was duly canceled, and that $80 rent was due to the defendant from plaintiff at the time said lease was canceled; and this action is brought to recover the difference between said $80 and the sum of $500 as security deposited as aforesaid with said defendant.
I am of the opinion that the complaint does state a cause of action. The lease expired when the defendant took pos*303session of the premises, and all that defendant was entitled to was to retain the amount of the rent that was due from the plaintiff at the time the defendant took possession of the premises. See Scott v. Montells, 109 N. Y. 1. The only “terms of said lease” the complaint showed that the plaintiff was bound to fulfill was the one relating to the payment of rent, and why the rent was not paid is set forth in the complaint.
The judgment appealed from is reversed and a new trial ordered, with costs to the appellant to abide the event.
J"udgment and orders reversed and new trial ordered, with costs to appellant to abide event:'