Opinion
June 30, 1952.
Action by a corporation and an individual, alleged to be its president and sole stockholder, to recover a sum of money which had been deposited with defendant, as landlord, as security for performance of the terms of a lease to the plaintiff corporation, as tenant. The action is based on the tenant's purported cancellation of the lease on the grounds (1) that the individual plaintiff had been recalled to the military service of the United States (see U.S. Code, tit. 50, Appendix, § 534; Military Law, § 310); and (2) that a building which the landlord was required to construct on the leased premises was not completed within the time specified in the lease. Plaintiffs appeal from an order denying their motion for summary judgment striking out defendant's answer, which includes a counterclaim for damages occasioned by defendant's inability to collect rent. Order of the County Court, Nassau County, affirmed, with $10 costs and disbursements. No opinion. Carswell, Acting P.J., Adel, Wenzel, MacCrate and Schmidt, JJ., concur.