Carroll v. Joyce , 267 A.D. 942 ( 1944 )

Order of the Niagara County Court reversed on the law insofar as it affirms the order of the City Court of North Tonawanda denying appellant’s motion to vacate the final order in summary proceedings directing the issuance of a warrant for eviction or dispossession and grants twenty-five dollars costs, and motion insofar as is sought to vacate the warrant for eviction or dispossession granted, without costs; and otherwise the order of the Niagara County Court is affirmed, without costs of this appeal to any party. Memorandum: In this summary proceeding (Civ. Prae. Act, § 1410 et seq.), respondent sought appellant’s eviction upon the grounds that he had held over after expiration of his term and had failed to pay the December and January rents. After personal service of the precept and prior to the return day, appellant paid into court the amount due for rent but neglected to pay the costs. Upon his default in appearing or answering on the return day, a final order, awarding judgment for damages and costs and awarding possession of the premises to respondent, was entered and a warrant to dispossess was issued. Respondent’s noncomplianee with the provisions of section 6 of Federal Maximum Rent Regulation No. 28 (7 Federal Register, p. 4913, eff. July 1, 1942), issued pursuant to Emergency Price Control Act of 1942 (U. S. Code, tit. 50, Appendix, § 901 et seq.), precluded the issuance of process for removal of appellant upon the ground that he had held over after the expiration of his term. So far as nonpayment of rent was involved, there was substantial compliance with the Federal Rent Regulation. Because of appellant’s failure to pay the costs, the final order, entered upon Ms default, was proper insofar as it determined the amount of rent due and awarded judgment for the costs and directed that execution issue thereon. Respondent is entitled to the moneys paid into court and appellant is entitled to have the final order and judgment satisfied upon payment of the costs therein awarded. All concur. (The order of the Niagara County Court affirms a final order of the North Tonawanda City Court granting judgment and directing the issuance of a warrant of eviction in favor of petitioner; and affirms an order of the same court denying appellant's motion to vacate the order granting judgment and directing the issuance of a warrant of eviction, and denying leave to the appellant to open his default.) Present — Cunningham, P. J., Taylor, Dow-ling, Harris and McCurn, JJ.