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In re SCHIFF.

(District Court, S. D. New York.

June, 1923.)

Bankruptcy <S=>! 16 — Lessor may apply deposit of bankrupt lessee to rent du© by receiver.

Where a lease provided for termination at lessor’s option on institution of bankruptcy proceedings, and lessor had repossessed himself of the premises, a deposit of one month’s security, which under the lease was applicable to the rent, may be applied by lessor to rent due by receiver in bankruptcy.

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In Bankruptcy. In the matter of Abraham L. Schiff, doing business as the Bellesonia Dress Company, bankrupt. On motion to direct receiver in bankruptcy to pay one month’s rent for premises occupied by him.

Motion denied.

Reiss & Reiss, of New York City, for United International Corporation.

Shapiro & Witte, of New York City, for receiver.

WINSLOW, District Judge.

This is a motion to direct the receiver in bankruptcy to pay one month’s rent for his occupation of certain premises for the month of April, 1923. » The landlord has one month’s security on deposit under, the terms of the lease.

The affidavits of both of the- parties state some conclusions and some facts. The lease provides for its termination upon the institution of bankruptcy proceedings, at the option, however, of the lessor. From the facts stated in the affidavits, it would appear that the landlord has repossessed himself of the premises. The deposit is not liquidated damages, and, under the terms of the lease, is applicable to rent. In the absence of1 any counterclaim, it belongs to the receiver, less the amount due for occupancy by the receiver. This equals the amount of the deposit, and the lessor is entitled to apply the deposit on account of the use and occupation by the receiver. In re Tanory (D. C.) 270 Fed. 872, 46 Am. Bankr. Rep. 520.

The motion is denied.

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