In this summary proceeding by sublessor against tenant for non-payment of rent it appears that prior to the trial, in a non-payment proceeding by the owner against the sublessor and subtenants, a final order was made in favor of the owner, with a stay of execution of the warrant until July first, the date of the trial of this proceeding. (The Assembly, Inc., v. Giller, 134 Misc. 657.) Under the circumstances, the relation of landlord and tenant between the parties having been terminated by the issuing of the warrant (Ash v. Purnell, 16 Daly, 189; Civ. Prac. Act, § 1434), a final order could not be awarded in favor of the sublessor, landlord herein, and as no such final order could be granted this landlord cannot have a judgment for the rent due. (Civ. Prac. Act, § 1425.)
It was error for the trial judge to award the tenant herein judgment for the deposit, for as long as the tenant remained in possession, in the absence of an attornment to the senior landlord, or payment by this tenant of the rent due by the sublessor to the owner, respondent was bound to pay rent to his landlord, and the amount of the rent exceeded the deposit.
Final order and judgment reversed and petition dismissed, without prejudice to the bringing of an appropriate action. '
All concur; present, Bijur, Lydon and Frankenthaler, JJ.