Mallory Associates, Inc., Plaintiff, v. Barving Realty Co., Inc., et al., Defendants.
Supreme Court, Special Term, New York County,
March 7, 1949.
Harold Gilbert and Jules E. Gilbert for plaintiff.
Nathan Frankel for defendants.
Eder, J.
Motion to dismiss amended complaint upon the ground that it does not state facts sufficient to constitute a cause of action.
A like motion to dismiss the original complaint was granted, with leave to serve an amended complaint (Mallory Associates v. Barving Realty Co., 193 Misc. 857).
The action is one in conversion to recover the sum of $65,000 deposited by the plaintiff, as tenant, with the corporate defendant, as landlord, under a written lease relating to real property situated in Norfolk, Virginia, said deposit being made as security for the full and faithful performance by the tenant of all the terms, covenants and conditions of the lease on the tenant’s part to be performed, it being charged that the defendant mingled and caused to be mingled said moneys so deposited with the personal moneys of the corporate defendant and this, it is alleged, constitutes a conversion.
The clause in the lease under which the deposit of security was made contains no provision creating or constituting the corporate defendant (hereafter styled defendant) the trustee of said fund, nor does it designate, create or constitute said sum, so deposited, a trust fund.
Under the provisions of the lease relating to the deposit, the defendant, as landlord, merely covenants to return said sum (which may be used toward the purchase of the leased premises) to the plaintiff, as tenant, in the manner therein provided for.