| NY | May 15, 1930
The complaint was properly dismissed as against the defendant McCoy, the maker of the lease. The final order in the summary proceeding to dispossess *59
the tenant is an adjudication, conclusive in favor of the landlord as against the other party to the proceeding, that there was a valid and subsisting tenancy (Reich v. Cochran,
The complaint was properly upheld as against the defendant Scharf, though we relieve him of the imputation of any actual fraud. The default in the dispossess proceeding resulted in an affirmance of the lease as between the landlord and the tenant. It did not determine the effect of an independent contract between tenant and attorney. If resort be had to that contract to determine the attorney's obligations, the conclusion, we think, follows that the deposit must be returned in so far as it includes the compensation which he was authorized to retain in specified contingencies. We think the title company did not give such a certificate of a marketable title to the leasehold as was within the contemplation of the parties to the escrow agreement (Paine v. Upton,
The judgment should be affirmed with costs to the plaintiff against the defendant Scharf, and with costs to the defendant McCoy against the plaintiff.
CARDOZO, Ch. J., CRANE, LEHMAN and O'BRIEN, JJ., concur; POUND, KELLOGG and HUBBS, JJ., dissent and vote for reversal as to the defendant Scharf.
Judgment accordingly. *60