The action is brought to recover a deposit of $6,000 given as security on a lease of a public garage dated August 5, 1920, for a term of ten years expiring August 31, 1930, made by defendant Aaron to Beringer and Peel. The lease was assigned to Donnelly and Peel, who are plaintiff’s assignors of the deposit. Defendant Aaron sold the leased premises and the lease to defendant Mazer who, to induce Aaron to turn the deposit over to him, assumed Aaron’s obligation for the return of the security and agreed to indemnify him against any claim of the tenants therefor. Mazer afterwards instituted dispossess proceedings against the tenants and under tenant for non-payment of rent and obtained a final order in summary proceedings in the Municipal Court of the city of New York on March 25, 1923. This action was begun in June, 1923, as against Aaron and in March, 1924, against defendant Mazer. No counterclaim or setoff was pleaded by either defendant. The principal defense is that the action is prematurely brought.