In re City Bank Farmers Trust Co.

Nathan, J.

In this proceeding to fix rents pursuant to chapters 3 and 314 of the Laws of 1945, as amended, the tenant respondent appealed from a final order of this court fixing the rent at an amount exceeding the emergency rent. The Appellate Division modified the amount of the increase (277 App. Div. 854) and entered an order providing “ that the said final order so appealed from he and the same is hereby modified * * * and as so modified, affirmed, with costs of this appeal to the tenant-respondent-appellant against the landlord-petitioner-respondent. ’ ’ Thereafter, costs were taxed by the County Clerk, on notice, in the sum of $957.79, and judgment therefor was entered.

The landlord petitioner now moves to vacate the judgment on the ground that its entry was unauthorized in this proceeding. There is no question that this is a special proceeding, brought on by petition and notice of motion, as distinguished from an action commenced by service of a summons. A special proceeding is terminated by a final order, rather than a judgment (Matter of Gibson, 195 N. Y. 466, 469; Matter of Bd. of St. Opening of City of N. Y. [Lexington Avenue, No. 2], 30 App. Div. 609; Matter of Sage v. Broderick, 139 Misc. 323). Consequently, the provisions of section 1492 of the Civil Practice Act, authorizing the awarding of costs in a special proceeding or upon an appeal from a final order therein, cannot be construed to authorize the entry of a judgment for such costs. It is true that where a final order in a special proceeding is affirmed or modified, the appellate court may enforce its order (Civ. Prac. Act, § 633); and that an order directing the payment of money, other than motion costs, may direct that the same be docketed as a judgment (Rules Civ. Prac., rule 74). There is no authority, however, for the entry of a judgment as such in a special proceeding. Furthermore, in the case at hand, the order of the Appellate Division does not even provide for docketing as a judgment. The motion to vacate the judgment is therefore granted. Settle order.