Joseph v. Cheeseboro , 43 Misc. 2d 702 ( 1964 )

Per Curiam.

Special Term, on conflicting affidavits on the motion before it, summarily vacated the final order granted by another Justice after trial. No hearing was held by Special Term to determine whether the alleged tender of the admittedly unpaid rent had been made before issuance of the warrant. Such a hearing should have been held for if no such tender had been made, the warrant, as issued, was a lawful mandate (see Matter of Vaile v. Moritt, 222 N. Y. S. 2d 290), and therefore Special Term exceeded its powers to act in the situation presented.

The order dated April 5, 1964 should be reversed, with $10 costs, and motion remanded to the court below for the conduct of a hearing on the foregoing issue of tender.

Concur — Hofstadter, J. P., Hecht and Txlzbr, JJ.

Order reversed, etc. ,