L. Sherman & Son, Inc. v. Heitmin Garage, Inc.

165 Misc. 102, 300 N.Y.S. 626, 1937 N.Y. Misc. LEXIS 1968

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 23, 1937
• Status: Published

Opinion

Per Curiam.

In the absence of objection that this proceeding should have terminated in a final order, not in a judgment (Civ. Prac. Act, § 1430; Dickinson v. Brown, 50 Misc. 640; Seymour v. Hughes, 55 id. 248; Altschuler v. Lipschitz, 113 N. Y. Supp. 1058), we think the defect in the form of the court’s determination may be deemed waived. That the judgment was entered upon appellant’s motion, respondent neglecting to complete the record, does not require dismissal of the appeal. (Midtown Plottage Corp. v. Sullivan, 131 Misc. 473.)

While the facts in the record, showing a limitation of the term, did not warrant a final order for the tenant, in view of the issue tendered by the landlord on the trial as to the financial ability of the tenant to pay the July rent, and the tenant’s claim that the stipulation made in open court before the trial of this proceeding, relied upon by the landlord in its brief, did not apply to the September rent, we think the tenant should be given an opportunity to assert any rights claimed as growing out of the payment of the September rent.

Judgment reversed and a new trial ordered, with fifty dollars costs to appellant to abide the event.

All concur. Present — Lydon, Levy and Frankenthaler, JJ.