Majority
p. 448Irving Haimowitz, Appellant, v. Alexander Lorintz et al., Doing Business as Hotel Peerless Co., Respondents. Supreme Court, Appellate Term, Second Department, June 17, 1958.
Thomas Bress for appellant.
David Berg and Ronald S. Konecky for respondents.
Plaintiff made out a prima facie case for the return of the security deposit. No accord and satisfaction resulted from the retention by plaintiff of that part of his security which was returned to him. The money returned was him own (Real Property Law, § 233) and was conceded by the defendants to be due to plaintiff in any event (Hudson v. Yonkers Fruit Co., 258 N. Y. 168 ; Eames Vacuum Brake Co., v. Prosser, 157 N. Y. 289 ).
The judgment should be unanimously reversed upon the law and facts and a new trial granted, with $30 costs to plaintiff to abide the event.
Concur — Pette, Hart and Brown, JJ.
Judgment reversed, etc.
Cases cited
- Hudson v. Yonkers Fruit Co. 258 N. Y. 168 p. 448
- Eames Vacuum Brake Co. v. Prosser 157 N. Y. 289 p. 448