115 Misc. 366 | N.Y. Sup. Ct. | 1921
Lead Opinion
The landlord initiated summary proceedings against the tenant on. the ground that he was holding over after the expiration of his term. Upon the return day, April, 1920, the tenant appeared in person and asked for a three months’ stay which was granted. The exact nature of the proceedings at that time does not appear in the record but it is undisputed that no final order was entered at that time and the tenant did not deposit the rent in court or pay the same to the landlord. On August 21, 1920, a final order against the tenant was signed, directing among other things, in the usual form, that a yvarrant issue. Thereupon the tenant moved upon an order to show cause for a further stay and the motion was heard on September 8, 1920. Upon the hearing of that motion the trial justice informed the tenant that no further stay could be granted to him but upon the urgent request of the tenant the trial justice asked the landlord whether she would consent, if the warrant were issued, “ to stay physically putting the tenant out of possession until after the Jewish holidays, if the tenant would agree to peaceably and quietly give up possession of the premises on September 30th, 1920, without application for further stay or doing anything to resist the landlord from executing the warrant on October 1st, if the tenant failed to comply with the stipulation.” The landlord replied that be
We are all agreed that the order is not an appealable order under section 154 of the Municipal Court Code
It is urged, however, that under the stipulation it was intended that the warrant should issue on September 8th and that only its execution should be stayed and that the trial justice should now order the clerk to deliver the warrant as if issued on the date of the stipulation and if necessary, to amend the record
In the present case, however, the clerk properly refused to sign or deliver any warrant. The trial justice has the right to amend the record of the proceeding only in so far as that record is incorrect. If he intended to grant only a stay of the execution of
Appeal should, therefore, be dismissed, without costs.
Concurrence Opinion
(concurring). On the hearing of Septem-
ber 8, 1920, the court refused the tenant’s application for a further stay and directed the issuance of a warrant, and the clerk actually made out a warrant as of that date. After such direction, on the tenant’s stipulation that the warrant should issue as of that date and that he would vacate the premises on September 30, 1920, the court indorsed on the papers: “ Landlord consents to stay of warrant until September 30,1920.” Had there been no previous determination by the court refusing a stay and directing the issuance of a warrant, such indorsement would be construed to mean that the issuance of a warrant was stayed; but in the light of the actual decision and the direction that a warrant issue as of that date and the subse
Appeal dismissed, without costs.