
    Violet Eversman, as Agent for Rivington-Eldridge Associates, Inc., Respondent, v Pedro Collodo, Appellant.
    Supreme Court, Appellate Term, First Department,
    October 27, 1976
    
      Michael D. Kaufman, Jill Kupferberg, Peter M. Wendt and Nancy E. LeBlanc for appellant. Goldweber & Hershkowitz (Max Goldweber of counsel), for respondent.
   Per Curiam.

Order entered April 22, 1976 (Nason, H.O.) reversed, with $10 costs, motion granted, final judgment vacated, and case remanded to the Housing Part of the Civil Court of the City of New York, County of New York, for proceedings consistent with this decision.

In this nonpayment summary proceeding, it was an improvident exercise of discretion for the court below to condition an adjournment requested by petitioner upon the payment into court by tenant of the amount prayed for in the petition, and to thereafter grant a "default” final judgment in favor of petitioner when tenant did not comply with the order of deposit. Since tenant had not made application for the continuance or otherwise sought the favor of the court, and there is no statutory provision calling for the deposit in the subject circumstances, the right to litigate the merits of the case was erroneously conditioned upon prepayment of the unproven amount claimed as rent (see Hovey v Elliott, 167 US 409; Boddie v Connecticut, 401 US 371, 379; cf. Lindsey v Normet, 405 US 56, 65 with Bell v Tsintolas Realty Co., 430 F2d 474).

Concur: Hughes, P. J., Gellinoff and Riccobono, JJ.  