Prior to and until September 1, 1925, defendant was employed as sexton in plaintiff’s cemetery in Elmira; N. Y., and occupied premises belonging to plaintiff and known as the sexton’s residence, at No. 623 Franklin street, in said city. He was discharged on that day, but did not surrender the premises so occupied and is still occupying the same, without plaintiff’s consent and against its opposition. On September 10, 1926, plaintiff instituted summary proceedings against him in the City *220Court of Elmira and obtained a final order and warrant of removal, but the warrant has not been executed by the constable in whose hands it was placed. The excuse has been and is that defendant’s wife cannot be safely removed without harm, because of her physical condition. The occupancy of the house is probably the key to the solution, but plaintiff elected to pursue a remedy at law and has pursued it to final order and warrant, so that a court of equity should not interfere. Since his discharge, defendant has solicited contracts for the sale and erection of monuments for a monument dealer and has done some work in setting them for persons claiming to be lot owners and in doing other work for them on their said lots. The terms of the interment deeds or burial permits are disputed and there is a dispute, also, about the manner in which defendant has done the work, whether in an orderly or in a wanton and malicious manner. These questions should not be determined on affidavits, but should be left for trial, if that becomes necessary. In the meantime, the rights of lot owners, with whom contracts for work may have been made, should not be prejudiced.
The order should be reversed on the law and the facts, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.
Van Kirk, Acting P. J., Hinman and Davis, JJ., concur; McCann, J., not sitting.
Order reversed on the law and facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.