
    In the Matter of Fanny L. Flewwellin, Appellant, v. Smith Lent, Respondent.
    
      Summary proceeding — dismissed, where a tender of the rent and costs is made before a final order of removal — the statute construed strictly against the landlord, but not as regards the tenant.
    
    Where, upon the return of the precept issued in a summary proceeding instituted by a landlord against the tenant to recover possession of the demised premises because of the non-payment of rent, the tenant tenders to the landlord the amount of rent due, together with the costs and disbursements of the -proceeding, the court may thereupon, under section 2254 of the Code of Civil Procedure, enter an order directing that the proceeding bo dismissed, and need not defer such dismissal until after a final order of removal has been made.
    The statutes conferring the remedy by summary proceedings given to landlords against their tenants, being in derogation of the common-law rights of the tenant, must be construed strictly against the landlord, but not as regards the tenant.
    Appeal by the petitioner, Fanny L. Flewwellin, from a final order of the county judge of Westchester county in favor of the respondent, entered in the office of the clerk of the county of Westchester on the 18th day of July, 1903, dismissing the proceeding.
    
      Edgar L. Ryder, for the appellant.
    
      Smith Lent, for the respondent.
   Woodward, J. :

The appellant Fanny L. Flewwellin is the owner of certain premises in the town and village of Ossining, Westchester county, and on the 3d Jay of July, 1903, she caused to be served upon her tenant, Smith Lent, a notice demanding payment of fifteen dollars rent, alleged to be due to her for the month of. June, or possession of the premises within three days. On the thirteenth day of July, upon the appellant’s petition, the county judge of Westchester county issued a precept, returnable July eighteenth, commanding the tenant to vacate the premises immediately, or to show cause why the said premises should not be delivered to the landlord. The tenant answered, and among other things alleged that he had made a legal tender of the amount claimed by the petitioner to her agent, and that he had paid into court the whole sum claimed to be due, with costs and disbursements. Upon the return of the precept the sum demanded in the notice, fifteen dollars, was again tendered in court, together with the costs and disbursements, and the county judge thereupon made an order directing that upon a renewal of the tender and a refusal to accept, the proceedings should be dismissed, the fund to be paid over to the county clerk subject to the order of the petitioner. From this order the petitioner appeals.

The petitioner has received all that she claimed was due her ; she has been paid the costs and disbursements incident to the proceeding, but she urges upon this appeal that the proceeding should not have been dismissed, after the tender, before á final order was made. Just what difference it makes to her when the proceeding is dismissed is one of the things -which we are unable to discover. Section 2254 of the Code of Civil Procedure provides that “the party, against whom a final order is made, requiring the delivery of possession to the petitioner, may, at any time- ~before a warrant is issued, stay the issuing thereof; and also stay an execution to collect the costs, * * * by payment of the rent due, or of such taxes or assessments, and interest and penalty, if 'any thereon due, and the costs of the special proceeding,” etc. The contention of the appellant is that because there was no. final order issued there was no statutory provision for the stay of the warrant, and as the summary proceeding is statutory, it must be strictly complied with. This is, of course, true, in so far as the petitioner is con-' cerned; the summary proceeding is in derogation of the common-law rights of the tenant, and is to be strictly pursued in order to oust him, but no such rule is applicable to the tenant, and he may properly be relieved of his default upon the payment of what is claimed to be due, with such costs as the law imposes. The statute specially provides for this after the final order is made, and this is "clearly upon the theory that the right to possession is to be determined after a trial of an issue, and then the tenant is given an option of paying the rent, with the costs, or of delivering up possession of the premises. ’ ■

In the case now before us the tenant elected not to try the issue, but to concede that he owed the amount claimed, and placed the fund in the custody of the court, with an amount sufficient to pay the costs, and there'was nothing left for the court except to dismiss the proceeding. The controlling provision of section 2254 of the Code of Civil-Procedure, in so far as it affects this case, is not that the final order shall be made, but that the tenant shall “at any time before a warrant is issued,” pay the rent and the costs of the special proceeding. If he chose to act before the order was issued it deprived the petitioner of no rights, and the legitimate object of an appeal is to preserve rights, not to annoy and harass people with useless attendance upon the courts, which have enough to do without considering technicalities which involve no substantial interests of the parties. The remedy contemplated by section 2231 of the Code of Civil Procedure is not the common-law ejectment, but is intended to place the landlord in a position to compel the payment of his rents or be restored to his possession of the premises, that he may rent them to persons who will pay, and when the proceeding has resulted in either of these ends it has accomplished all that the Legislature intended, and there is no jurisdiction in the courts to grant other relief. To hold that it was necessary to issue a formal order of removal, after there had been a tender of all that the law could compel, before the tenant could be placed in a position to take advantage of the provisions of section 2254 of the Code of Civil Procedure, is to make the administration of the law ridiculous, and in the absence of controlling authority this court will not hold such a rule.

The order appealed from should be affirmed, with costs.

All concurred.

Final order affirmed, with costs.  