Apart from the oral agreement testified to in behalf of the plaintiff, upon the proofs the plaintiff was entitled to recover the deposit less the amount of rent due at the time of the dispossession, for the reason that the issuing of the warrant in the summary proceeding brought against the lessee canceled the lease, and the covenant authorizing the landlord in case the premises became vacant to re-enter and relet as agent of the tenant did not survive the cancellation of the lease by the summary proceeding, but merely provided for the contingency of the premises becoming vacant and the landlord reletting as agent of the tenant for the balance of an unexpired and uncanceled term. (Kottler v. N. Y. Bargain House, Inc., 242 N. Y. 28; Rosenfeld v. Aaron, 248 id. 437.)
Judgment reversed and a new trial ordered, with costs to appellant to abide the event.
All concur; present, Lydon, Callahan and Peters, JJ.