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Matter of Ehrlich v. Cassidy

Appellate Division of the Supreme Court of New York, Second Department
Mar 1, 1935
243 App. Div. 786 (N.Y. App. Div. 1935)

Opinion

March, 1935.


Order of mandamus directing the respondent, clerk of the Municipal Court of the city of New York, Borough of Queens, First District, to issue a warrant of dispossess in favor of petitioner, as landlord, and against the intervenor, as tenant, reversed on the law and not in the exercise of discretion, with costs, and the application denied, with ten dollars costs and disbursements. In a summary proceeding judgment was awarded in favor of the landlord and a final order made on consent and the tenant given a five days' stay. After the original stay expired but before a warrant issued or demand for its issuance was made, the tenant deposited the rent due plus interest and costs with the clerk of the court. This resulted in staying the issuing of the final order. 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 the rent due, plus interest and costs. This statute affords a tenant a stay, the benefit of which ends only when a warrant in fact issues or a valid demand for its issuance is made. Therefore, it was error to grant petitioner's motion for an order of peremptory mandamus directing the clerk to issue a warrant of dispossess. ( Matter of Flewwellin v. Lent, 91 App. Div. 430.) Lazansky, P.J., Young, Carswell, Scudder and Johnston, JJ., concur.


Summaries of

Matter of Ehrlich v. Cassidy

Appellate Division of the Supreme Court of New York, Second Department
Mar 1, 1935
243 App. Div. 786 (N.Y. App. Div. 1935)
Case details for

Matter of Ehrlich v. Cassidy

Case Details

Full title:In the Matter of the Application of ABRAHAM EHRLICH, Respondent, for a…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 1, 1935

Citations

243 App. Div. 786 (N.Y. App. Div. 1935)

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