67 Misc. 2d 451 | N.Y. App. Term. | 1971
A summary proceeding remains pending until the execution of the warrant. (Whitmarsh v. Farnell, 298 N. Y. 336, 344.) "While the proceeding is pending, the warrant may be stayed under CPLE 2201.
The earlier decisions, which held that a warrant, once it has been issued, could not be stayed except by an appellate court, or by injunction, unless the final order had been rendered on default, were based upon .sections 1446 and 1447 of the Civil Practice Act. These sections were omitted from the CPLE and from the Eeal Property Actions and Proceedings Law.
With the repeal of these sections, ahd under CPLE 2201, the court below may stay its proceedings in a proper case upon such terms as may be just.
While the Judge below stated that he would have liked to grant tenants relief, he held that he was without jurisdiction to do so, since the warrant had already been issued. This was error.
The orders should be reversed, with $10 costs, and each motion granted, provided, in each case, the tenant pays the-arrears of rent, if any, due landlord, within seven days after service of a copy of the order to be entered hereon with notice of entry; if not so paid in either case, order affirmed, without costs.
Concur — Lupiano, J. P., Markowitz and Gold, JJ.
Orders reversed, etc.
