156 N.Y.S. 559 | N.Y. Sup. Ct. | 1915
Application for a peremptory writ of mandamus requiring respondent to issue and deliver a warrant of removal in summary proceedings. In June, 1915, relator instituted summary proceedings to dispossess one McWhinney for non-payment of past due rent, reserved in a lease demising the premises here in question; the tenant by his answer admitted the making of the lease, the non-payment of the rent, and alleged as a-separate defense an actual eviction from a part of the demised premises and thus a suspension of the rent; the summary proceeding was tried before the Municipal Court justice and a jury, verdict rendered for the landlord, and a final order awarding delivery of possession of the demised premises to the landlord was made and signed by the justice on June 29, 1915, the justice indorsing at the foot of the final order, “ Warrant stayed to July 2,1915, at 12 o’clock M.” and signing his name thereto. This the justice had no authority to do and the stay ordered by him was a nullity; the final order was made after a trial of the issues
Ordered accordingly.