Opinion
December 17, 1952.
Present — Dore, J.P., Cohn, Van Voorhis and Breitel, JJ.; Dore, J., concurs in the result upon the ground that the landlord's petition was jurisdictionally defective. [ 202 Misc. 709.]
Orders unanimously affirmed, with $20 costs and disbursements to the respondents, upon the ground that the petition was defective and appellant's proper remedy was not by mandamus but by appeal. Whether the tenant was obligated to pay the costs as well as the rent to avoid the issuance of a warrant of eviction is determinable upon appeal and not by an article 78 proceeding (see Matter of Jasgold Realty Corp v. De Stefano, 280 App. Div. 772, in which this court affirmed an order directing the clerk to issue the warrant of eviction unless within three days after service of a copy of the order with notice of entry the tenants paid the landlord the costs in addition to the rent.)