LaVin v. LaVin

264 A.D. 887, 35 N.Y.S.2d 811, 1942 N.Y. App. Div. LEXIS 5255

Opinion

— Appellant instituted a proceeding in the Municipal Court against the respondents upon a petition alleging forcible entry and detainer, pursuant to sections 1412 and 1426 of the Civil Practice Act. At the same time he began this action and sought as incidental relief that the respondents be restrained from interfering with his possession of the same premises described in the summary proceeding. The respondents, before answer, moved to remove the summary proceeding and consolidate it with this action and for such other and further relief as might be just and proper. The motion to remove and consolidate was denied but the court granted an order staying the trial of the summary proceeding until the final determination of this action or the further order of the court. Prom such order this appeal is taken. Order reversed on the law, with ten dollars costs and disbursements, stay vacated, and the motion denied, with ten dollars costs. The court was without power to stay the trial of the summary proceeding under the circumstances here present. (Civ. Prae. Act, § 1446.) Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.