Stein v. Kesselgrub , 91 N.Y.S. 64 ( 1904 )

Per Curiam.

This appeal is taken by the landlord from an order of the Municipal Court vacating a final order in summary proceedings dispossessing the tenant for nonpayment of rent, and granting a new trial. On June 16, 1904, a precept was issued out of the Municipal Court, returnable on June twentieth. On said last-mentioned day the tenant appeared and put in a verified answer, and the proceeding was adjourned to June twenty-second. On this last-named day the landlord moved for judgment on the pleadings,-which motion was granted. A final order w,as accordingly thereafter made and entered on said twenty-second day of June, and the twenty-third day of June a warrant was issued and the tenant dispossessed. Thereafter, and on June twenty-fourth, the tenant obtained an order to show cause why the final order should not be vacated and a new trial granted, which order was returnable on June twenty-seventh. This motion was drily argued on June twenty-seventh, and the court granted the same. On July 19, 1904, an order was entered setting aside the final order of June twenty-second, and setting the proceedings down for trial on August 2, 1904. From this order of July 19, 1904, the landlord appealed to the Supreme Court, and applied for a stay pending the appeal. This motion was denied, as alleged by the attorney for the landlord, “ upon the ground that there was no provision of law for a stay of proceedings from an order granting a new trial in a summary proceeding, as section 2255 of the Code applies only to appeals from a final order, and section 314 of the Municipal Court Act has reference to appeals from judgments.” The landlord, having been thus unsuccessful in his attempt to get a stay from the Supreme Court, fell back on section 1310 of the Code, and contended that the appeal itself operated as a stay. The justice of the court below declined to take this view, and when the proceedings, after several adjournments, came on again for trial on October 25, 1904, the court dismissed the proceeding upon motion of the landlord, on the ground that the tenant had already been dispossessed and was no longer in possession of the premises. From this last decision no appeal has apparently been taken.

Upon a motion made to dismiss the appeal herein, at the opening of the present term of this court, disputed questions of fact were presented on affidavits, and the motion was denied.

Upon this appeal, as presented on the merits by the record, it appears that the question, whether or not the court below had a right to set aside the final order and grant a new trial is purely an academic one, and need not be determined.

It may, however, be said that súbdivision 19 of section 1 of the Municipal Court Act would seem to provide that such action by the justice of the Municipal Court was within his power.

The appeal is dismissed, with ten dollars costs and disbursements to the respondent.

Present: Freedman, P. J., Bischoff and Gildersleeve, JJ.

Appeal dismissed, with ten dollars costs and disbursements to respondent