Order of the County Court of Suffolk County affirming final order of the Justice's Court of the Town of Islip, which awarded possession of premises to respondent-landlord in a summary proceeding to recover possession of real property, and dismissing the appeal from that final order, reversed upon the law and the facts, with costs to appellant, and proceeding dismissed, with costs in the courts below. Said final order of the Justice's Court is vacated. The receipt and acceptance by the landlord, before the issuance of the warrant of eviction, of the full amount of rent found to be due by the final order constituted an assent to the continuance of the tenancy. ( Matter of Walker v. Ribotsky, 275 App. Div. 112.) The facts as to such receipt and acceptance of the rent, while not presented before the Justice of the Peace, were duly presented by affidavit to the County Court on the appeal to that court and are in the record now before this court. (Justice Ct. Act, § 455; Tarder v. Bezozi, 34 Misc. 551; Beach v. Baker, 25 App. Div. 9, 11; Sammis v. Nassau Light Power Co., 91 App. Div. 7; Fitch v. Devlin, 15 Barb. 47, 50; People v. Yerman, 138 Misc. 272, 276.) From the facts disclosed by this record the appeal to the County Court was timely. (Justice Ct. Act, § 428; Civ. Prac. Act, § 1441.) No motion to dismiss that appeal appears to have been made and that appeal was heard, argued and determined upon the merits. (Justice Ct. Act, § 451; Pearson v. Lovejoy, 53 Barb. 407, 411; Seymour v. Judd, 2 N.Y. 464, 467.) Nolan, P.J., Carswell, Adel, Sneed and Wenzel, JJ., concur.