ANTHONY J. DI GIOVANNA, Justice.

This is an Article 78 proceeding in the nature of mandamus to compel the Clerk of the Municipal Court, Second District, to issue a warrant of eviction.

Briefly, the papers and record of the Municipal Court reveal that the petitioner on November 16, 1960 instituted summary proceedings for the nonpayment of rent against the respondent-tenant. A final order on tenant's default was entered on December 2, 1960 and a warrant thereupon was issued directing the tenant's eviction. Thereafter the tenant moved to vacate her default and stay the execution of the warrant. On December 19, 1960 tenant's motion was granted, the final order was vacated and the proceeding was set down for trial.

Upon the completion of the trial an order dated January 4, 1961 was entered in favor of the petitioner and the issuance of a warrant stayed to and including January 9, 1961. Nowhere in the order of December 19, 1960 was the warrant based on the order of December 2, 1960 ever set aside or vacated but rather remained in the possession of the petitioner's marshal until January 11, 1961 when it was returned. While the tenant claims that she offered payment of the rent and costs to the petitioner directly prior to the expiration of the fifth day of the stay of the last final order, the Clerk of the court acknowledges that a tender was made on January 10, 1961, a day later, but which was refused due to the outstanding warrant. Upon the return of the warrant on January 11, 1961, the petitioner and his marshal made application for a new warrant which was refused by the Clerk of the court until the matter was adjudicated by the court. Resulting from this refusal, the present application was made.

It is evident that the Justice of the Municipal Court who vacated the final order on December 2, 1960 did so pursuant to section 1447 of the Civil Practice Act. This section specifically empowers the court to vacate a final order rendered upon the default of a tenant, other essential facts being present, and upon the vacating of such order the warrant issued shall also be vacated and set aside (People ex rel. 45 East 57th St. Co., Inc. v. Chilvers, 210 App.Div. 258, 205 N.Y.S. 460; Boggi v. Carbonaro, Sup., 110 N.Y.S.2d 214; Local Holding Corporation v. Williamson, 200 Misc. 504, 109 N.Y.S.2d 795). However, while the court below vacated the final order, it failed to vacate the warrant as prescribed by section 1447.

A warrant in a summary proceeding is the equivalent of an execution in an action and cannot issue until a final order is made in favor of the landlord (People ex rel. Kilgallon v. Nuhn, 92 Misc. 312, 156 N.Y.S. 559 affirmed 173 App.Div. 895, 156 N.Y.S. 1151). So, too, a warrant issued in a summary proceeding without a final order first having been made in favor of the landlord is a nullity (Brookley v. Ives, 243 App.Div. 487, 278 N.Y.S. 147). The final order having been vacated and no longer in existence, the warrant in effect lapsed even though not vacated by the court's order as it no longer had any basis for its existence. Until the warrant, however, was returned to the court by the landlord's marshal, even though in effect it was a nullity, the Clerk of the court was justified in refusing to accept the tenant's tender of the rent and costs until the legality of the existence of the warrant was passed upon. The tenant, however, under these circumstances should not be penalized by reason of the act of the landlord's agent in failing to return the warrant, and the tender having been made prior to the issuance of a new warrant directed by the last final order and prior to the time the new warrant could have been issued by reason of the outstanding warrant, the petitioner is not entitled to the relief he seeks.

Section 1435 of the Civil Practice Act provides that a tenant against whom a final order is made may stay the issuing thereof at any time before a warrant is issued by depositing with the Clerk of the court the amount of rent due plus interest and costs. This statute affords a tenant a stay even after the original stay had expired provided the tender is made prior to the issuance of the warrant or a valid demand is made for its issuance (Ehrlich v. Cassidy, 243 App.Div. 786, 277 N.Y.S. 644; Young v. Lucas, 1 A.D.2d 754, 147 N.Y.S.2d 218). The tender having been made within the prescribed period, the landlord's application must be denied.

Accordingly the petition is dismissed.