
    Buccaneer, Inc., Appellant, v. Lawrence Cerbone et al., Respondents.
    Supreme Court, Appellate Term, Second Department,
    June 7, 1961.
    
      DreyerS Traub (Seymour C. Simon of counsel), for appellant. King S Korn (Daniel King of counsel), for respondents.
   Per Curiam.

Tenants failed to establish their defense and counterclaim by any competent evidence (Jackson v. Paterne, 58 Misc. 201, affd. 128 App. Div. 474; Altz v. Lieberson, 233 N. Y. 16). Landlord’s acceptance of the rent payments subsequent to the entry of the final order was not a waiver of its right to prosecute this appeal (8 Carmody-Wait, New York Practice, Appeals in General, §§ 83, 84).

The final order should be unanimously modified by dismissing the counterclaim on the merits and increasing landlord’s recovery to $168 with appropriate costs in the court below; and, as so modified, affirmed, with $25 costs to landlord.

Concur- — -Di Giovanna, Benjamin and Daly, JJ.

Final order modified, etc.  