Ehrlich v. Cassidy

243 A.D. 786

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1935
• Status: Published

Opinion

Order of mandamus directing the respondent, clerk of the Municipal Court of the city of New York, Borough of Queens, First District, to issue a warrant of dispossess in favor of petitioner, as landlord, and against the intervenor, as tenant, reversed on the law and not in the exercise of discretion, with costs, and the application denied, with ten dollars costs and disbursements. In a summary proceeding judgment was awarded in favor of the landlord and a final order made on consent and the tenant given a five days’ stay. After the original stay expired but before a warrant issued or demand for its issuance was made, the tenant deposited the rent due plus interest and costs with the clerk of the court. This resulted in staying the issuing of the final order. Section 1435 pf the Civil Practice Act provides that a tenant against whom a final order is made may stay the issuing thereof at any time beforo a warrant is issued by depositing with the clerk of the court the amount of the rent duo, plus interest and costs. This statute affords a tenant a stay, the benefit of which ends only when a warrant in fact issues or a valid demand for its issuance is made. Therefore, it was error to grant petitioner’s motion for an order of peremptory mandamus directing the clerk to issue a warrant of dispossess. (Matter of Flewwellin v. Lent, 91 App. Div. 430.) Lazansky, P. J., Young, Carswell, Seudder and Johnston, JJ., concur.