Majority
p. 862Ernes Realty Corporation, Plaintiff, v. Jacob Brenner and Others, Defendants. Hyman Derkatch, Tenant, Appellant; Bernard Besdine, as Receiver of Rents and Profits in Above-Entitled Action, Respondents.[1]
Order denying motion to open default, to vacate and set aside, as to appellant, the direction for attornment, and to direct the return of $315, reversed on the law and the facts, with ten dollars costs and disbursements, and matter remitted to the Special Term to take proof as to the bona fides of the alleged payment of a year’s rent beginning July 1, 1932, by the tenant to bis landlord. If the payment was made and in good faith, the tenant is entitled to a refund of the rents paid to the receiver. Lazansky, P. J., Young, Hagarty and Davis, JJ., concur; Tompkins, J., dissents and votes to affirm.