Opinion
March 9, 1933.
Appeal from the Municipal Court, Borough of Bronx, Second District.
David Michelson, for the appellants.
Safir Kahn [ Jesse Safir of counsel], for the respondent.
In this proceeding for non-payment of rent a final order was rendered after trial in favor of landlord, and the tenants appealed. Pending the appeal the landlord on notice entered judgment for $1,670.66, the rent due in the proceeding, with interest and costs.
This court having upon the tenants' appeal from the final order reversed said final order the tenants moved in the court below to vacate the judgment entered after service of the notice of appeal, and from the order denying the motion this appeal is taken.
Under the statute (Civ. Prac. Act, § 1425) "the court, upon rendering a final order, may [where the precept contains the appropriate notice and service thereof duly made] determine the amount of rent due to petitioner and give judgment for the amount found to be due."
Assuming it was a proper exercise of discretion in this instance to enter judgment after the appeal from the landlord's final order, since this court reversed the final order the court below erred in denying the tenants' application to vacate the judgment, which depended for its validity upon the final order.
Although we are required to dismiss this appeal because the order is not appealable, we do so without prejudice to a reargument of the motion to vacate the judgment, the court below having ample power to grant the desired relief. ( Stoneware Electric Stove Works v. Barrett, 117 Misc. 699; Clarrisio v. Coney Island B.R. Co., 104 id. 592.)
Appeal dismissed.
All concur; present, LYDON, FRANKENTHALER and UNTERMYER, JJ.