Saledo Realty Corp. v. Allen , 2 Misc. 2d 399 ( 1956 )

Per Curiam.

Section 1435 of the Civil Practice Act provides that a party against whom a final order is made may stay execution by depositing the amount of the rent due and the cost of the special proceeding with the clerk of the court. The tender in the manner made by the tenant here was not effective. Moreover, the application made was to vacate the order and the warrant and even though it be considered as a motion to open the default, the papers on which it was founded are insufficient. Such an application should have contained a proposed answer or, in the alternative, an offer to pay the accumulated rent, with costs, into court (De Santis v. Sgambellone, 275 App. Div. 890). The order vacating the final order and the warrant was therefore erroneous.

The order should be reversed, with $10 costs, and final order for landlord reinstated as prayed for in the petition, with costs.

Hofstadter, Hecht and Aurelio, JJ., concur.

Order reversed, etc.