In Horowitz v. Safeco Insurance Company of America, 50 A.D.2d 1042 (3d Dept 1975), a case involving a warehouse lease, the plaintiffs received $ 31,860.80 from subtenants as use and occupancy during a three-month period in which the rental value of the warehouse was agreed to by the parties as $ 30,438.85. Plaintiffs brought this action on defendant's bond for rent plaintiffs claimed was still due during the three-month pendency of defendant's appeal. The Court found the issue in Horowitz, at 1043, to be: whether the plaintiffs, having received full value for the use and occupancy of the premises for the pertinent period through its acceptance of rent from the subtenants, can apply those moneys to past debts and collect from the surety 'the value of the use and occupancy' for the same period. The Court ruled that by collecting rents directly from the subtenants, as if the tenant was not in possession, allowed plaintiffs to receive "precisely what they would have received had there been no appeal. The undertaking did not provide that they should receive more."