
    Theodore D. Havemyer, Landlord, Respondent, v. Samuel Luttinger, Tenant, Appellant.
    Supreme Court, Appellate Term, First Department,
    May 21, 1935.
    
      Sidney S, Levine, for the appellant.
    
      Ryan & Lyttle, for the respondent.
   Per Curiam.

If the precept herein was not personally served, as claimed by the landlord, the judgment for rent should have been vacated. (Matter of McDonald, 225 App. Div. 403.) It was improper to require the tenant to deposit rent as a prerequisite to having the issue of service determined.

Order modified by striking out the conditions imposed, and as modified affirmed, with ten dollars costs to appellant, and trial of service of process set down for May 28, 1935.

All concur; present, Hammer, Callahan and Shientag, JJ.  