The trial court directed judgment in favor of plaintiff against the defendants and in favor of the defendant Aaron against the defendant Mazer, on the ground that the obligation to return the deposit was personal and did not run with the land. Aaron was held liable to return the deposit because he no longer owned the land and Mazer because he had agreed to indemnify Aaron This conclusion was arrived at on the authority of Fallert Brewing Co., Ltd. v. Blass (119 App. Div. 53). In that case, however, the deposit never came into the possession of the grantee of the original lessor. The grantee of the land, it was held, could not compel the grantor to pay the deposit over to him. Here the grantee received the deposit and agreed to indemnify the original landlord. The covenant to return passed to the grantee, subject to the terms of the lease. If the time has not yet arrived at which the landlord is bound to return the deposit, the landlord and his grantee are still in a position to obtain a benefit from holding it in accordance with the terms upon which it was made (Mauro v. Alvino, 90 Misc. Rep. 328, 330; Kottler v. N. Y. Bargain House, Inc., 242 N. Y. 28, 37), and they are not bound to return it merely because the leased premises have been conveyed by the lessor. The deposit may be retained until the right to hold it as security has terminated.
The Appellate Division affirmed without opinion.
The question remains whether paragraph ninth of the lease survives dispossession in summary proceedings. It reads as follows: