concurrence">Guy, J.

(concurring). On the hearing of Septem-

ber 8, 1920, the court refused the tenant’s application for a further stay and directed the issuance of a warrant, and the clerk actually made out a warrant as of that date. After such direction, on the tenant’s stipulation that the warrant should issue as of that date and that he would vacate the premises on September 30, 1920, the court indorsed on the papers: “ Landlord consents to stay of warrant until September 30,1920.” Had there been no previous determination by the court refusing a stay and directing the issuance of a warrant, such indorsement would be construed to mean that the issuance of a warrant was stayed; but in the light of the actual decision and the direction that a warrant issue as of that date and the subse*373quent stipulation to the same effect, it must be construed as meaning that merely the execution of the warrant already directed to be issued was stayed. The appending of the signature to the warrant was a mere clerical omission, which under section 6, subdivision 7, of the Municipal Court Code, the court had power to correct at any time. For the purposes of this proceeding, therefore, the warrant must be deemed to have issued as of September 8, 1920, and the proceeding was no longer a pending proceeding. The statutory provision subsequently enacted against the issuance of a warrant in pending proceedings is not applicable. I am of the opinion, however, that the order from which the appeal is taken is not an appeal-able order, and that the landlord’s remedy is by mandamus. As a fraud has been practiced upon the court and upon plaintiff by the tenant’s refusal to carry out the terms of his stipulation, the dismissal should be without costs of appeal.

Appeal dismissed, without costs.

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