
    Halsey T. Tichenor, III, as Agent of Percy O. Marion and Another, Respondent, v. Eli Duberman et al., Appellants.
   Appeal by appellant tenants from a final order made by the County Court of Tompkins County, in a summary proceeding instituted by the respondent landlords to evict them for the nonpayment of rent. On the return of the precept the tenant appellants filed their verified answer and counterclaim for judgment against the landlords for the amount of excess rent which they claimed to have paid over the maximum rental allowed by law. The petitioners then demanded a jury trial and the matter was left pending apparently in expectation of an adjustment after the filing of briefs. Upon their being filed the County Judge wrote the attorneys for the parties a letter expressing his views in the matter based upon an informal presentation by each party as to the facts claimed and controverted. The final order appealed from followed shortly after the County Judge expressed his views of the matter in his letter. On the record before us we do not feel that we may properly decide the issues involved. The record does not adequately show that either before the County Court or before this court a proper case has been made for the submission of the controversy upon an agreed statement of facts. Order appealed from reversed on the law and facts and the matter remitted for trial, with costs to the appellants to abide the event. Poster, P. J., Heffernan, Brewster, Bergan and Coon, JJ., concur.  