
    In the Matter of Emray Realty Corp., Petitioner, against Anthony De Stefano, as Clerk of the 10th District, Municipal Court of the City of New York, Respondent.
    Supreme Court, Special Term, New York County,
    August 20, 1957.
    
      Arnold Schildhaus for petitioner.
    
      Louis J. Lefhowitz, Attorney-General (Barnett Levy of counsel), for respondent.
   Harold A. Stevens, J.

Pursuant to article 78 of the Civil Practice Act, petitioner seeks an order in the nature of mandamus compelling the clerk of the Municipal Court of the City of New York, 10th District, to issue a warrant. It appears that the petitioner as landlord instituted summary proceedings in the Municipal Court to evict a certain tenant from landlord’s premises for nonpayment of rent; that a final order was made in favor of petitioner landlord and a warrant was issued by a Justice of the Municipal Court and the tenant was evicted pursuant thereto; that thereafter the tenant unlawfully reoccupied the premises and made a motion to vacate the said final order and warrant; that this motion was granted but on appeal by petitioner landlord to the Appellate Term, the order granting tenant’s motion was reversed and the final order and warrant reinstated; that after petitioner’s demands on respondent to issue the warrant reinstated by the Appellate Term were refused, this proceeding was instituted.

Section 1432 of the Civil Practice Act provides in part: ‘ ‘ Warrant to dispossess defendant. Where the final order is in favor of the petitioner, the judge or justice must issue a warrant under his hand directed to the sheriff of the county or to any constable or marshal of the city in which the property, or a portion thereof, is situated ’

Thus it would seem that the Justice must issue the warrant under his hand and there is no authority in the clerk of the court or his deputy to issue the warrant unless directed to do so by the Justice presiding, and there is no showing that the clerk was so directed. Application is denied and petition dismissed.  