PER CURIAM.
In the light of the uncontradicted averments of the moving affidavit, on the motion to vacate the final order, showing delivery to the landlord prior to the proceeding of the tenant's check for $170 to pay the rent due, which check was retained by the landlord, the petitioner must be deemed to have accepted the check as payment of the rent demanded. See Walker v. Ribotsky, 275 App.Div. 112, 88 N.Y.S.2d 207.
Order reversed, with $10 costs, motion granted, and final order vacated.
All concur.