It will be noted that the Penal Law section speaks only of a security deposit made by a “ tenant Accordingly, when this defendant notified tenant that he had adopted the procedure set forth in A above, plaintiff brought this action on the theory that, since he had made the deposit and not the tenant, the section relieving an owner from liability upon turning the security over to his grantee was not applicable. He urges, therefore, that the liability of section 233 of the Beal Property Law was not terminated inasmuch as defendant had no right to turn Ms (as distinguished from a “ tenant’s ”) deposit over to the purchasers.
The motion to dismiss is based upon the applicability of section 1302-a of the Penal Law to this situation, despite the circumstance that plaintiff individually, rather than his corporation, had furnished the security on its behalf.
When plaintiff made the deposit, he became the owner thereof and entitled to its return upon expiration of the term. However, during the term of the lease, the deposit was to be treated the same as security put up by the tenant itself. So long as there was no deviation from the original purpose for which deposited, the security (except for the fact that plaintiff was to be entitled to its return) was to be considered as if deposited by tenant itself. Plaintiff intended that it should be used as security for tenant’s performance under the fifteen-year lease and the present transfer to the new owners simply carries on that original intention. That is precisely what the Penal Law provision contemplates. To interpret the provision literally, as plaintiff has attempted, to cover security given only by a tenant and not on his behalf, would frustrate the purpose intended by its enactment. When security has been deposited on a tena