Abramowitz v. Gray

50 Misc. 638, 98 N.Y.S. 1096

Opinion

Scott, J.

The facts in this case bear no resemblance whatever to those in Weinberg v. Greenberger, 47 Misc. Rep. 117. In that case the money was paid as a deposit on account of a leáse to be thereafter made, and it was left quite obscure for what purpose the deposit was given, unless it was as security that the depositor would make the lease in due time. In this aspect it could be considered merely as security' for any damage which might accrue from the,depositor’s failure to execute a lease, and no such damages were proven. As was pointed out in that case, the deposit could not, under the terms of the receipt, be considered as having been given on account of, or as security for, the rent which was to constitute the consideration for the lease. In the present case, the money paid to defendant and now sued for is recited as having been paid on account of the purchase money for two lots, and the whole evidence shows that the payment was so made, and not merely as security for the making of some future contract. Thus considered, it is clear that the judgment is right and should be affirmed with costs.

Truax and Bischoff, JJ., concur.

Judgment affirmed, with costs.