
    The People of the State of New York ex rel. Luke Kilgallon, Relator, v. John H. Nuhn, Clerk of the Municipal Court of the City of New York, Third District, Borough of Queens, Respondent.
    (Supreme Court, Kings Special Term [Motions],
    November, 1915.)
    Summary proceedings — for nonpayment of rent — when final order awarding possession of premises must be made by the justice — warrant — landlord and tenant — appeal — determination as to tenant holding over after nonpayment of rent past due.
    In a summary proceeding instituted in the Municipal Court of the city of New York for the nonpajonent of rent a final order awarding possession of the premises to the landlord must be made by the justice (Code Civ. Pro. § 2249) and signed by the clerk of the court (Municipal Court Act, § 1, ¶ 12; Code Civ. Pro. § 2251), and the warrant is issued, when so signed and delivered for execution.
    
      Upon making the final order the justice, as to the proceeding, becomes functus officio except on motion to set aside the verdict and to grant or deny a new trial, and he has no authority by an indorsement at the foot of said order to stay the issuance of the warrant to remove the tenant, and any such attempted stay is a nullity.
    After an appeal taken from the final order granted June 29, 1915, had been perfected the county, judge stayed the execution thereof, the issuance of a warrant thereupon and all proceedings to remove the tenant until ten days after the determination of the appeal. Subsequently the order of stay was modified by an order striking out and vacating the stay for ten days after the determination of the appeal and it was further ordered that the tenant furnish another bond. The final order appealed from was affirmed September 20,. 1915, and the order of affirmance was duly entered on that day. On application for a writ of mandamus to compel the clerk of the court to issue and deliver a warrant to remove the tenant, held:
    That when the final order was made and delivered to the clerk it was his duty to sign and issue the warrant unless stayed from so doing by some statute, or by an order of a court of competent jurisdiction,, and that the performance of such duty should be compelled by a writ of mandamus.
    That the order of the county judge staying the execution of the final order and the issuance of the warrant justified the clerk’s failure to sign and issue the warrant pending the appeal and until the order affirming said final order was filed with him or came to his knowledge.
    That the fact that the tenant deposited with the clerk on the day following su6h affirmance the necessary sum to pay and discharge the rent then due, interest and costs, did not avail either the clerk or the tenant, there being no authority for such deposit or payment to the clerk of the Municipal Court.
    That by appealing from the final order the tenant did not lose his right to avail himself of the privilege provided in paragraph 1 of section 2254 of the Code of Civil Procedure of paying “at any time before a warrant is issued the rent due and interest and penalty,” etc., and where it appears that at the time of the tender of such amount the warrant had not been signed or issued the motion of the landlord for a peremptory writ of mandamus to compel the issuance of the warrant will be denied as matter of law and not in the exercise of discretion on the ground that the landlord had not shown a clear legal right to the writ.
    The tenders made hy the tenant while not a satisfaction of the rent, interest and costs due suspend the landlord’s remedy to enforce the final order hy the execution of the warrant of removal and may stay the execution thereof hy such payment to the landlord.
    While a final order in summary proceedings does not adjudge the amount of the rent due and unpaid it is á determination that the tenant holds over after nonpayment of rent past due.
    Application for a peremptory writ of mandamus.
    William Easquin, Jr., for motion.
    James S. Darcy, opposed.
   Maddox, J.

Application for a peremptory writ of mandamus requiring respondent to issue and deliver a warrant of removal in summary proceedings. In June, 1915, relator instituted summary proceedings to dispossess one McWhinney for non-payment of past due rent, reserved in a lease demising the premises here in question; the tenant by his answer admitted the making of the lease, the non-payment of the rent, and alleged as a-separate defense an actual eviction from a part of the demised premises and thus a suspension of the rent; the summary proceeding was tried before the Municipal Court justice and a jury, verdict rendered for the landlord, and a final order awarding delivery of possession of the demised premises to the landlord was made and signed by the justice on June 29, 1915, the justice indorsing at the foot of the final order, “ Warrant stayed to July 2,1915, at 12 o’clock M.” and signing his name thereto. This the justice had no authority to do and the stay ordered by him was a nullity; the final order was made after a trial of the issues raised by the petition and answer, and as “ These proceedings are purely statutory and the statute must be strictly followed.” Maneely v. Mayers, 43 Misc. Rep. 380, 383. With the making of the final order the justice as to this proceeding became functus officio (Ash v. Purnell, 32 N, Y. St. Repr. 306, 309), except upon motion to set aside the verdict and grant or deny a new trial. Mun. Ct. Act (Laws of 1902, chap. 580), § 1, ¶ 12; Id. §§ 254, 255. Thereupon the tenant appealed to the Appellate Term, and, upon furnishing to the county judge of Queens county an undertaking which was approved by said county judge, the county judge made an order staying the execution of said final order, the issuing of a warrant thereupon and all proceedings to remove the tenant until ten days after the final determination of said appeal by the Appellate Term. Subsequently and on July ninth that order was modified by an order striking out and vacating the stay of ten days after the determination of said appeal, and further ordering the tenant to furnish another bond. The final order appealed from was affirmed, with costs to the landlord on September 20,1915, and the order of affirmance was duly entered that day. A final order in a summary proceeding instituted in the Municipal Court of the city of New York must be made by the justice (Code Civ. Pro. § 2249), but it shall be signed by the clerk. Mun. Ct. Act (Laws of 1902, chap. 580), § 1, ¶ 12; Code Civ. Pro. § 2251. Hence when the final order was made and delivered to the respondent it was his duty thereupon to sign and issue the warrant unless he was stayed from so doing by some statutory provision or by an order of a court of competent jurisdiction. The warrant is issued when signed by the clerk of the Municipal Court and delivered for execution. Ash v. Purnell, supra. The warrant was not signed by the clerk until about October 29, 1915, on which day an order was made by the justice making the final order directing respondent to sign the warrant “ as filed and now in his office ” as of the date of said final order. The justice had no authority to make such an order; the performance by the clerk of his duty in that regard could be compelled by a writ of mandamus. Tbe order of tbe county judge staying tbe execution of tbe final order- and tbe issuing of tbe warrant justified respondent’s failure and refusal to sign and issue tbe warrant pending said appeal and until tbe order affirming said final order was filed with him or came to bis knowledge. Tbe fact that tbe tenant deposited with tbe respondent the day following sucb affirmance tbe necessary sum to pay and discharge tbe rent then due, interest and costs, is of no avail to tbe respondent or to tbe tenant. There is no authority for sucb deposit or payment to tbe clerk of tbe Municipal Court. People ex rel. Terwilliger v. Chamberlain, 140 App. Div. 503; Browning, King & Co. v. Chamberlain, 150 id. 392; affd., 210 N. Y. 270. Tbe moneys so deposited remained tbe property of tbe tenant. Browning, King & Co. v. Chamberlain, 210 N. Y. 273. Tbe expression found in section 2251 of tbe Code, “must thereupon issue a warrant,” is not one of time, but refers to a condition and a succession of events. In other words, upon tbe final order being made tbe warrant is to be issued; it cannot issue until tbe final order is made; it is tbe next successive step to be taken, unless tbe rent be paid or an undertaking is given therefor under section 2254 of the Code or an appeal is taken and a stay granted pending tbe appeal as provided in sections 2260, 2261 and 2262 of tbe Code. By tbe first exception, after tbe final order is made and at any time before tbe warrant is issued, the tenant may pay tbe rent, interest and costs or give tbe bond therefor, but that must be before tbe warrant is issued. , By tbe other tbe issuance of tbe warrant and its execution cannot be stayed unless an appeal is taken and thereafter an order of the county judge of the county, or in the city and county of New York of a justice of the Supreme Court, upon an undertaking duly presented and approved is made. § 2262. Hence it will be seen that in each of these instances some lapse of time between the making of the final order and the issuance of the warrant is contemplated, and the word “ thereupon ” is riot to be construed as meaning “ immediately.” By the answering affidavits it appears that the tenant, Mc-Whinney, tendered to the landlord on October 2, 1915, $850 in current currency in payment of said rent, interest and costs, and this is not denied by relator. On the argument of this motion the tenant by his counsel, in the presence of the court and calling the court’s attention thereto, tendered to the relator’s counsel and to the landlord a sum of money, which the tenant’s counsel asserted was $850, in payment of said rent, interest and costs to that date, which was by the landlord and his counsel refused. .Prom the facts as presented by the papers the warrant had not been signed or issued at the time of the tender on October second, nor has the warrant as yet been issued. .The privilege of the tenant to pay “ at any time before a warrant is issued * * * 1. * * * the rent due * * * and interest and penalty, if any thereon due, and the costs of the proceeding,” is still open. Code Civ. Pro. § 2254. By appealing from the final order the tenant here has not lost his right to avail himself of the privilege provided in paragraph 1 of section 2254 of the Code of Civil Procedure, since the warrant has not yet been issued. The tenders made by him are not a satisfaction and discharge of the rent, interest and costs due, but suspend the landlord’s remedy to enforce the final order by the execution of the warrant to remove and may now stay the execution of the warrant by such, payment to the landlord. Stover v. Chasse, 9 Misc. Rep. 45, 48; Sheldon v. Testera, 21 id. 477; Flewellen v Lent, 91 App. Div. 430. The final order, of course, does not adjudge the amount of the rent due and unpaid, but is a determination that the tenant holds over after non-payment of past due rent. The tenders made would appear to have been a sum in excess of that due and payable to the landlord, and if the landlord and tenant are unable to agree upon the amount so payable the tenant has his remedy in equity in an action to ascertain the amount due and to enjoin the landlord from enforcing the execution of the warrant. Relator has not shown a clear legal right to the writ here sought and the motion is denied, but such denial is directed as a matter of law and not in the exercise of discretion.

Ordered accordingly.  