86 N.Y.S. 919 | N.Y. App. Div. | 1904
The appellant Fanny L. Flewwellin is the owner of certain premises in the town and village of Ossining, Westchester county, and on the 3d Jay of July, 1903, she caused to be served upon her tenant, Smith Lent, a notice demanding payment of fifteen dollars rent, alleged to be due to her for the month of. June, or possession of the premises within three days. On the thirteenth day of July, upon the appellant’s petition, the county judge of Westchester county issued a precept, returnable July eighteenth, commanding the tenant to vacate the premises immediately, or to show cause why the said premises should not be delivered to the landlord. The tenant answered, and among other things alleged that he had made a legal tender of the amount claimed by the petitioner to her agent, and that he had paid into court the whole sum claimed to be due, with costs and disbursements. Upon the return of the precept the sum demanded in the notice, fifteen dollars, was again tendered in court, together with the costs and disbursements, and the county judge thereupon made an order directing that upon a renewal of the tender and a refusal to accept, the proceedings should be dismissed, the fund to be paid over to the county clerk subject to the order of the petitioner. From this order the petitioner appeals.
The petitioner has received all that she claimed was due her ; she has been paid the costs and disbursements incident to the proceed
In the case now before us the tenant elected not to try the issue, but to concede that he owed the amount claimed, and placed the fund in the custody of the court, with an amount sufficient to pay the costs, and there'was nothing left for the court except to dismiss the proceeding. The controlling provision of section 2254 of the Code of Civil-Procedure, in so far as it affects this case, is not that the final order shall be made, but that the tenant shall “at any time before a warrant is issued,” pay the rent and the costs of the special proceeding. If he chose to act before the order was issued it deprived the petitioner of no rights, and the legitimate object of an appeal is to preserve rights, not to annoy and harass people with useless attendance upon the courts, which have enough to do without considering technicalities which involve no substantial interests
The order appealed from should be affirmed, with costs.
All concurred.
Final order affirmed, with costs.