First Department, July, 1921. [Vol. 197 Accordingly, there was no abuse of process by the issuance of a warrant in summary proceedings, where it appeared that the defendant herein instituted summary proceedings to dispossess the plaintiff herein; that the plaintiff appeared in said proceeding and tendered and paid into court the amount of rent prior to the increase thereof; that the plaintiff defaulted in appearing at the trial and the final order was issued in favor of the landlord but the issuance of the warrant was stayed for two weeks; that the proceeding was not discontinued or the balance of rent paid, though the plaintiff sent the defendant the increased rent for the second month but refused to pay the increase for the first month, whereupon the defendant returned the rent received for the second month. APPEAL by the defendants, Wilker Realty Co., Inc., and another, from a judgment of the County Court of Bronx county in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 26th day of October, 1920, upon the verdict of a jury, and also from an order, entered in said clerk's office on the 17th day of November, 1920, denying defendants' motion for a new trial made upon the minutes. Edgar Hirschberg, for the appellants. Philip E. Uhr, for the respondent. PAGE, J.: This is an action for damages for malicious abuse of process. The landlord of No. 1537 Fulton avenue raised the rent of his tenants, about thirty in number, two dollars per month from October 1, 1919. The tenants held a meeting and decided not to pay. Thereupon the landlord instituted dispossess proceedings against nineteen tenants, of whom the plaintiff was one, returnable on October 6, 1919. On October sixth the plaintiff appeared and paid into court twenty-five dollars, the amount of the rent which had been paid for the preceding month, and the case was set for trial on October 14, 1919, at which time the tenant defaulted, and final order was issued in favor of the landlord, but the issuance of the warrant was stayed until November 1, 1919. The deposit of the twenty-five dollars in court was a concession that such amount was due, and the question to be tried was whether two dollars more was due. By granting the final order the court held that twenty-seven dollars and App. Div. 659] First Department, July, 1921. not twenty-five dollars was due as rent, which had not been paid. There is no evidence in this case that the proceeding had been discontinued, or this balance of rent paid. The warrant was issued from a court having jurisdiction, for a cause authorized by law, and was used to enforce the final order of the court which directed it to issue, namely, to remove the tenant and put the landlord in possession. There was no malicious abuse of process. The gravamen of an action for abuse of process is the willful using of the process, civil or criminal, for a purpose not justified by law and to effect an object not within its proper scope. (Foy v. Barry, 87 App. Div. 291, 294, HATCH, J.; Assets Collecting Co. v. Myers, No. 1, 167 id. 133, 138, CLARKE, J.; McClerg v. Vielee, 116 id. 731, 733.) The defendant moved at the close of the plaintiff's case and renewed the motion at the close of the entire case to dismiss upon the specific grounds that the plaintiff had failed to prove facts sufficient to constitute a cause of action, that the plaintiff had failed to establish that there had been any abuse of process, that the plaintiff had failed to establish the element of intentional wrongdoing or a wanton attempt to pervert the processes of the law from their proper use and design, and excepted to the denial of the motion. The motion should have been granted. The plaintiff claims that he sent a money order for the November rent at the increased rate on November 7, 1919, which was Friday; that the following Tuesday the defendant called and asked for the two dollars due on the October rent, which the plaintiff refused to pay. The defendant then tendered back twenty-seven dollars, and on the plaintiff's refusal to accept it laid it on the table beside him and left. The case of Crawford v. Waters (46 How. Pr. 210), upon which respondent relies, was not a payment of rent for a subsequent month. But the money was paid into court for the purpose of redeeming the tenancy after forfeiture. The amount was not sufficient to cover the amount in arrears, but the landlord received the money and kept it. The court held that the tenant undertook bona fide to redeem the demised premises, and by accepting and retaining the amount the landlord affirmed the existence of the lease. The case is clearly dis First Department, July, 1921. [Vol. 197 tinguishable from the case at bar. The tenant concedes that he did not pay or tender the balance due on the October rent. The judgment should be reversed, with costs to the appellant, and the complaint dismissed, with costs. CLARKE, P. J., LAUGHLIN, SMITH and MERRELL, JJ., concur. Judgment and order reversed, with costs, and complaint dismissed, with costs. NICHOLAS W. RYAN, Respondent, v. RODGERS & HAGERTY, INC., Appellant. First Department, July 1, 1921. con Contracts - action to recover balance due and prospective profits on contract for construction of railroad and tunnel ducts tract for laying tunnel ducts only - prospective profits not recoverable where contract rescinded. In an action to recover balance alleged to be due on a contract for the laying of railroad and tunnel ducts in a section of a subway, and for prospective profits arising from the refusal of the defendant to permit the plaintiff to complete the contract, evidence examined, and held, that the contract, which had been fully performed, called for the laying of the tunnel ducts only and did not include the laying of railroad ducts. Moreover, if the contract covered both classes of ducts then on the failure of the defendant to pay the installments claimed to be due to the plaintiff, the plaintiff had one of two courses open to him, either to rescind the contract and recover what was due thereunder up to date, or to proceed with the contract and sue for the amount due; but he could not rescind the contract and recover prospective profits. APPEAL by the defendant, Rodgers & Hagerty, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 18th day of February, 1920, on the verdict of a jury. Warren I. Lee of counsel [Howard A. Butler with him on the brief], for the appellant. Frederick J. Flynn, for the respondent. App. Div. 662] PAGE, J.: First Department, July, 1921. The complaint stated two causes of action. In the first were really embodied two: one for the balance alleged to be due for work performed under the contract; and another for loss of profits as damage for refusal to allow the plaintiff to complete the contract. The second cause alleged was for $50 for extra work. The jury gave a verdict for plaintiff for $342.78, the amount alleged to be due for work performed, $380 for loss of profits, and $30 for extra work, making a total of $752.78. The defendant had the contract for building a section of the subway along Eastern Parkway in Brooklyn. This contract provided for two classes of ducts as follows: "SUBDIVISION 20 RAILROAD AND TUNNEL DUCTS "Section No. 397. The ducts to contain cables for transmitting electricity for the operation of the Railroad shall be of the one-way form with circular holes. "Tunnel ducts are those incorporated in the Railroad structure. All other ducts for use in connection with the Railroad are termed Railroad ducts." Section No. 407 of the contract provides: "Railroad ducts will be paid for per duct foot in place and measured in place at the price stipulated for Railroad ducts in Schedule Item 18-A, and Tunnel ducts shall be paid for per duct foot in place at the price stipulated for Tunnel ducts. in Schedule Item 18." These schedules are not printed in the record. The difference between tunnel ducts and railroad ducts was in the method of installation. The tunnel ducts were laid in the bottom of the structure and alongside the walls in banks of twenty. The railroad ducts were laid above the roof of the structure, after a portion of the cut had been refilled. The defendant was to be paid monthly on the certificate of the engineer of the amount of the work done and materials incorporated in the work, ten or fifteen per cent of the amount to be withheld. The plaintiff made a subcontract with the defendant. The parts material to this appeal are as follows: "I propose to do the work of handling, laying and rodding of the tunnel ducts on subway Section 3, Route 12, on Eastern Parkway, First Department, July, 1921. [Vol. 197 Brooklyn, in accordance with the plans and specifications of the Public Service Commission, for the sum of two and three-quarter cents (234c) per duct foot. Rodgers & Hagerty, Inc., to furnish all materials. The ducts will be delivered to me along the line of the work on trucks; I to unload and stack and do all further handling into place. * * I will agree to do the rodding of all ducts according to the specifications and have the same passed by the Engineer. For this I agree that the Contractor shall withhold one-half cent per duct foot, paying the same to me at the time of the final acceptance of the ducts by the Public Service Commission's engineer. Payments to be made monthly as Rodgers & Hagerty, Inc., are paid." This contract, dated ⚫ April 10, 1917, was signed by the plaintiff and accepted by the defendant, and the day after it was signed the plaintiff commenced work. * * The plaintiff testified that three or four days after he commenced work he saw the defendant's president and had the following conversation: "I told him I could not wait for the one-half cent that the contract called for until he got his final payment from the city, and he told me I would not have to wait for it, and that as soon as they were rodded and accepted he would pay me, and he did. I asked him, if I needed it, if he would give me money at any time that I might need it for a payroll, and he said he would, and he did give it to me." * He testified further that he had his contract with him and asked Hagerty to modify it in writing, but the latter said it would not be necessary. This is a different modification from that set forth in the complaint, which is as follows: "Fifth. That after the plaintiff entered upon the performance of said contract and work and to enable the plaintiff to more readily finance and carry on said work, it was mutually agreed between the defendant and the plaintiff that the defendant would pay the plaintiff for said work at the rate of 234 cents per duct foot in weekly installments for the work performed each week irrespective of the time or manner in which defendant was to be paid by the City of New York; and it was further agreed by the defendant with the plaintiff that the defendant would not retain any percentage of the |