(concurring). I concur in the result reached by Mr. Justice Lehman, but I believe that the provision was one for a penalty because since there was no' covenant to pay which survived summary proceedings, I think that the contingency provided against was one in which no damages could accrue. See Caesar V. Rubinson, 174 N. Y. 492; Feyer v. Reiss, 154 App. Div. 272.