Agor v. Country Airways, Inc.

278 A.D. 666, 102 N.Y.S.2d 672, 1951 N.Y. App. Div. LEXIS 4288

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1951
• Status: Published

Opinion

In a summary proceeding, order and judgment (one paper) of the County Court, Putnam County, dated September 14, 1950, resettling an order and judgment (one paper) dated September 1, 1950, modified on the law by striking out the third ordering paragraph thereof, and by inserting a provision that any parts of the original order and judgment which are madfe effective by reference in the resettled order and judgment, to the effect that the landlord is entitled to delivery of possession of the premises and that a warrant issue, are struck out. As thus modified, the resettled order and judgment is unanimously affirmed, with costs to appellant. The stipulation constituted, in effect, a deposit of money, to be paid out in satisfaction of any sum found to be due the landlords, as fixed in an order of the County Court. This was the equivalent of payment prior to the time that any warrant of dispossess could be issued upon the making of the order, and 'the efficacy of the stipulation looking towards payment was the same as that of section 1435 of the Civil Practice Act. (Matter ■ of Flewwellin v. Lent, 91 App. Div. 430; Levinsky v. Thompson, 125 Mise. 897; Matter of Ehrlich v. Cassidy, 243 App. Div. 786; Hett v. Lange, 139 App. Div. 743; People ex rel. Eilgallon v. Nuhn, 92 Mise. 312, affd. 173 App. Div. 895.) In any event, there was payment in full to the landlords on September 4, 1950, so that there was no occasion for-a provision in the resettled order and judgment, subsequently made, adjudging the landlords to be entitled to possession and to decree issuance of a warrant. Present — Nolan, P. J., Carswell, Johnston, Sneed and Wenzel, JJ.