
    Kilmer Park Construction Co., Inc., Landlord, Appellant, v. Samuel S. Lehrer, Tenant, Respondent.
    Supreme Court, Appellate Term; First Department,
    March 8, 1934.
    
      Isadore S. Goldstein [Abraham J. Yasgour of counsel], for the appellant.
    
      David W. & Irving J. Katz [Irving J. Katz of counsel], for the respondent.
   Per Curiam.

The dismissal of the proceeding because the trial judge said he could not go on ” with the case, the precept being missing, did not authorize a dismissal on the merits. The tenant had submitted to the jurisdiction of the court, and as there was no trial on the merits there could be no decision on the merits.

There is no allegation in the petition that the August rent was unpaid, and in the absence of such allegation no judgment may be awarded for that rent.

Final order reversed and a new trial ordered, with ten dollars costs to appellant to abide the event.

Appeal from order of November 22, 1933, dismissed.

All concur; present, Hammer, Callahan and Frankenthaler, JJ.  