Schwartz v. Schultz

That the tenants undertook to procure the necessary permit from the fire department does not bar a recovery. It is undisputed that such permit could not be obtained, and the plaintiffs having abandoned possession and terminated the lease have a right, there being no counterclaim presented, to recover the moneys deposited with the landlord to secure performance of their covenants. (Raner v. Goldberg, 215 App. Div. 355.)

Judgment reversed, with thirty dollars costs, and judgment directed for plaintiffs for the relief demanded in the summons, with interest and costs.

Present — Bijur, O’Malley and Levy, JJ.

(dissenting). Although the point is not raised by the appellant, I consider that Shedlinsky v. Budweiser Brewing Co. (163 N. Y. 437) is controlling upon us, and that the judgment below was, therefore, proper. Accordingly I dissent and vote to affirm.