directed its dismissal; (3) by striking out from said Appellate Term order the provision granting partial summary judgment to defendants upon their third counterclaim; (4) by adding to such order a provision denying defendants’ cross motion insofar as defendants seek partial summary judgment upon their third counterclaim; and (5) by adding to such order a provision reversing the said order of the Civil Court in all respects, except with respect to the defendants’ third counterclaim and the motions relating thereto. As so modified, the order of the Appellate Term is affirmed, without costs. The lease (a printed form) was to expire, by its terms, on Febuary 15, 1965. Section 17 thereof empowered the landlord to bring the lease to an earlier termination on various grounds, including nonpayment of rent, by a five days’ written notice of the landlord’s intention to terminate the lease. Defendants gave plaintiff such a notice, stating nonpayment of rent as the basis, and fixing June 14, 1962 as the termination date. After that date defendants commenced a summary proceeding; and thereafter (on Aug. 30, 1962) plaintiff was evicted pursuant to a warrant issued in that proceeding, Plaintiff then brought this action to recover the $5,000 which it had deposited with the landlord under section 15 of the lease as security for its (plaintiff’s) performance of the terms of the lease on its part to be performed. It bases its right to recovery on the theory that, upon the accelerated termination of the lease on June 14, 1962, it was entitled to repayment under said section 15. That section provides that the fund
“ 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 * * * [the] terms, covenants and conditions on Tenant’s part to be performed.” Sections 8 and 23 of the lease authorize re-entry by the landlord in variously stated circumstances, which may generally be described as breaches by the lessee of certain terms of the lease, including nonpayment of rent; those sections further authorize the landlord to relet the premises and to hold the lessee liable for deficiencies. In our opinion, section 15 of the lease should be interpreted as meaning that the deposit is repayable only after the expiration of the term originally fixed in the lease, that is, after February 15, 1965. Consequently, the assertion of the first cause of action for the recovery of the deposit was premature. The case of
Matter of Homann ( 45 F. 2d 481 ) involved a similar claim for repayment of a security deposit under a lease containing precisely the same provisions as to when the fund was repayable. It is questionable whether the statement in that case (p. 482) that, under the New York decisions, “ such a covenant survives the [accelerated] termination of the lease,” was entirely correct when made. The decision in
Homann also rejected a contrary holding
(Von der Horst v. Wolinsky, 137 Misc. 182 ). Nevertheless, the holding in
Homann is consistent with the decision we are rendering in the instant case. [For a distinction between specific language indicating that the fund remains payable only upon the expiration of the original term (with specific reference to the pertinent provision in
Homann, which is the same as the one in the instant case), and general language to the effect that repayment is to be made at the expiration of the term, see
Richman v.
Joray Corp., 183 F. 2d 667 , 670.] The
Homann case
(supra) was decided in 1930. Regardless of whether it was correct in its statement as to what the New York law then was, it appears that since then there has been no decision to the contrary. It must be assumed, therefore, that in the interim landlords and tenants have contracted in reliance upon the correctness of that statement. This court would be averse to making a decision to the contrary after so many intervening years of business dealings in reliance on
Homann. As to the third counterclaim, it has been conceded that its assertion was premature. It was interposed on December 26, 1962; and it made