f^^^'lK "' Cornell University Library KFN5145.Z9T75 1873 The law and practice o", .ESP.'rSSSiMiSniini 3 1924 022 803 732 (Jnrnpll IGaui ^rljnnl Sjibrary THE / ,•> /.'•' ■■■: ^i \ LAW AND PRAOjTiitdEjf i. PROCEEDIIGS BY LANDLORDS ^€^.,v'^^y RECOYER POSSESSION OF DEMISED PREMISES, ON THE NON-PAYKNT 0! RENT OR EXPIRATION OF THE TERM, WITH AN APPENDIX OF FORMS. BY JOHN mWNSHEND, Counsellor at Law, Editor of Yoorhibs^ Code, &. Boardman, 4 Keyes, 68.) P. 66, § 37. — l"he affidavit should make out a plain case, and should not be uncertain nor contradictoiy. If it neither shows the relation of landlord and tenant, nor that any jiartic- ularly specified term Was expired, it will not be sufficient. (The Peoole ». Matthews, 43 Barb. 168, affl'd, 38 N. Y. 451.) Where the affidavit stated, "that on 1st May, 1863, said premises were leassd to said tenant by W. L. O., then owner of slid premises; that said premises were afcerwards purchased by said M., the present landlord and owner there- of, for the term of one year, commencing 1st 'May, 1863, and ending 1st May, 1864, which term has expired, &c., held thit it did not show the relation of landlord and tenant bstween the tenant and M., nor that any specific term of tenancy had expired, (/t^.) The affidavit should show the relation of landlord and tenant by agreement, and not a tenancy by operation of law. (The People v. Simpson, 38 N. T. 55, affirming, s. c, 23 How. 481 ; 43 Barb. 116.) Where the affidavit stated that J. M. leased the premises to M. M. for the term of ten years, that M. M. entered as tenant, and assigned the lease to A. S., who assigned the same to H., and H. assigned it to J. S. ; that upon the the assignment of M. M. to A. 8 , toe latter became entitled to the . ppssessicm of the premi es, and the ioiiner became the tenant ot the latter by sufferance, and that by reasan of said assignment, M. M. became tenant at suffer.mce to J. S. ; held that it did not show the conventional relation of landlord and tenant, aiid did not give jurisdiction. (iS.) ADDITIONS AND COKRECTIONS. V P. 67, line 23, aAA "see 9 M. & W., 233; 18 Abb. 293, n; 2 Abb. N. S., 47." P. 68, line 6, aM "Burt v. Owen, 1 Dowl. 691." P. 70, end of § 35. — A demand of the rent made of an ur.der tenant, who is described in the affidavit merely as a person in possession of the premises, is not sufficient to give jurisdiction. (The People v. Piatt, 48 Barb. 116.) P. 74. — Held by a County Judge, that a summons for hold- ing over after the expiration of the term, may be returnable on the same day it is issued, or on any day within five days thereafter. (Kussell «. Ostrander, 30 How. 93.) P. 79, § 43. — An affidavit of the service of a summons which alleges a service upon an under tenant on the premises, and that the tenant was absent from his last and usual resi- dence, without stating that such residence was upon the premises is insufficient. (The People v. Piatt, 43 Barb. 116; 23 How. 481.) When an affidavit of the service of a sum- mons stated that -the service was made "by leaving a true copy of the same with a person who said he belonged there, at his last or usual place of residence, with a person of mature age, who at the time of said service was on said premises, and resided thereon, said tenant being then absent from his last or usual place of business; held defective, as not showing that a copy of the summons was left with a person of mature age at the last or usual place of residence of the tenaat." (The People d. Matthews, 43 Barb. 168 ; 38 N. Y. 451.) Where the proof shows a service before the date of the summons, the defect is fatal. (The People v. Boardman, 4 Keyes, 59.) And so is an affidavit which omits to show that the place where the service was made upon the tenant, was his last place of residence. (lA.) And see laws 1868, ch. 828. P. 85, end of § 49, aM " A tenant who does not appear on the return day, is precluded from objecting on appeal to the regularity of the proceedings. (The People d. Powers, 19 Abb. -99.) P. 86, § 53. — An affidavit by the tenant, denying each and every allegation contained in the affidavit of the landlord is sufficient. (The People «. Coles, 43 Barb. 96.) P. 91. — After a landlord discontinues, he may sue for the rent. (G-illilan ». Sprat, 41 How. 37; rev'g, 8 Abb. N. S..13.) Yl ADDITIONS AND CORKKOTIONS. P: 96.— By laws 1863, ch. 368, the provision of the Revised Statutes was amended so that where the jury summoned da not attend, " the magistrate may order any sheriff, constable or marshal, to summon from the bystanders, or from the County at large, so many persons qualified to serve as jurors as shall be sufficient, and return their names to the magis- trate. Every person so summoned, or summoned under the provisions of this article as hereby amended, shall attend forthwith and serve as a juror, unless excused by the magis- trate ;" and for neglect be subject to fine. P. 97. — Neither party has the right of peremptory chal- lenge. (The People i>. Hamilton, 39 N. Y. 107.) P. 100. — The magistrate may charge the jury upon the law. (The People v. Kelsey, 14 Abb. 37.S.) P. 103, note, as to fees, see " laws 1866, ch. 693." P. 109, end of § 75. Where the counter affidavit raises two questions, and the jury find generally for the tenant, both questions are presumptively res adjudicata, and in a subsequent proceeding in which one of such questions arises. it is for the landlord to show that it was not passed upon by the juiy. (Yonkers Fire Insurance Co. «. Bishop, 1 Daly, 449.) The decision is conclusive on the parties in any other litigation involving the same question. (Kelsey v. Ward, 16 Abb. 98.) P. Ill, g 79, add, " 14 Abb. 106 ; 1 Abb. N. 8., 58 ; Aaron V. Baum, 4 Id. 65 ; Springsteen u. Powers, 3 Robertson, 483 ; Many v. James, 37 How. 53." P. 113.— The warrant, see page 16, IT 16, post, and Russell V. Hubbard, 6 Barb. 654. P. 116. Where a tenant holding over is liable to be dis- possessed by virtue of a warrant regularly issued against him by an incoming tenant, the latter is not liable for assisting at the request of the constable, to remove the goods in a care- ful manner, although the day may be stormy and the goods are put out in the rain, and suffered injury. A warrant of dispossession properly and regularly issued, protects all who act under it, unless they act maliciously. The law does not recognize the state of the weather in executing such a war- rant. (Higenbothem ». Lowenbein, 38 How. 331 ; 3 Robert- son, 33.) P. 116. — Rent may be collected after dispossession. (La Farge ». Park, 1 Edmonds Rep. 333.) ADDITIONS AND COBRBCTIONS. Vll P. 117, line 33, aM " Vemam v. Smith, 15 N. Y. 837." P. 118, line 5, add "Healy -e. McManus, 33 How. 338." P. 131, third line from bottom, add 17 Abb. 326 note. P. 133, sixth line from bottom, add " Starkweather v. See- ley, 45 Barb. 164; TEe People v. McCaflfery, 43 Barb. 530." P. 138. — Effect of certiorari. (Springsteen «. Powers, 3 Eobertson, 489.) P. 135, § 97.— The relator is concluded by th6 return. If the facts are not correctly stated, he should apply for a further return. He cannot coirect it by affidavit, nor assign- ment of errors. (The People «. Powers, 19 Abb. 99.) P. 137, note, add "Freeman ®. Ogden, 40 N. Y. 137; The People ». Hamilton, 39 Id. 1 07 ; The People ®. Stiner, 30 How. 129 ; where the Court refused to disturb the finding of the justice, although its correctness was doubted." P. 139, line 3, for " 34" read " 33." P. 139, strike out lines 9, 10, 11 and 13, and insert—" The costs are not governed by the Code. The following is a prec- edent of a bill of costs : Counsel retaining fee $3 75 Argument. , 5 00 Attending prepared for such argument 3 00 Attorney retaining fee : 3 00 Drawing papers for allowing of certiorari, 10 fols, 35c. each 3 50 Drawing writ of certiorari, and copy 3 00 Serving certiorari on justice 50 Copy return to certiorari, 30 folios, 6c. each 1 30 Drawing execution 1 00 " writ of restitution 1-^50 Engrossing record of judgment, &c 3 00 Attending argument prepared for such argument 3 00 Drawing points 5 00 " order reversing judgment 50 " copy of same 50 " bill of costs and copy 1 50 Serving notice of adjustment of costs 50 Furnishing proof of service of same 50 Drawing note of issue, and filing 35 Attending taxation of costs 35 VUl ADDITIONS AND COBKECTIONS. Paid justice for his return .' 3 00 " printing case and points 15 00 Clerk's fee on argument 1 00 Certificate of reversal 15 Clerk, entering judgment 1 00 Sheriflf 's fees, execution, 3 counties 1 38 " " serving writ of restitution 1 25 Transcripts and filing • 24 Postage 18 Affidavits 50 P. 139, § 108. — If a husband is in fact the tenant, and has been improperly removed, he alone is entitled to restitution, and he alone should be the relator in a certiorari to review the proceedings. The court cannot order restitution to any person not a party to the proceeding. (The People v. Mc- Caflery, 43 Barb. 581.) P. 189, § 103 continued. — The general rule is, that on re- versal of a judgment restitution will be ordered. (Chamber- lain V. Choles, 8 Abb., N. S. 118 ; The People e. Matthews, 88 N. Y. 451.) P. 140. — Eeview in Court of Appeals. (The People «. Boardman, 4 Keyes, 59.) P. 141. — I^eview by appeal cannot be had in proceedings for holding over the term. (Sage v. Harpending, 34 How. 1 ; 49 Barb. 166 ;) and as to stay of proceedings pending the appeal. (Id.) P. 148, end of § 109. — Upon an appeal from the decision of a justice of the peace, if the appellant in good faith gives due notice of appeal, an omission through mistake to do any other act necessary to perfect the appeal or to stay proceed- ings — e. g., the giving of security — is amendable by leave of the court. (Briggs v. Swales, 19 Abb. 333 ; 29 How. 3ol,) P. 161.^Notice to determine tenancy. (The People v. Schanckno, 48 Barb. 551 ; Burn i: Bryant, 31 N. T. 453.) Demand of rent. (The People e. Gross, 50 Barb. 331.) P. 178.— General denial. (The People v. Coles, 43 Barb. 96.) P. 189. — Affidavit for certiorari should not be entitled in any court. (Hall «. Sawyer, 47 Barb. 119; Whitney ». Warner, 3 Cow. 500 ; Welsh «. Hill, 2 Johns., 373 ; eicpte. Walworth, 10 Jurist, 976.) LAWS OF 1868. Chapter 828, p. 1930. An Act relative to snramary proceedings to recover the possession of land. — Passed May 19, 1868; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows. • Sec. 1. Section thirty of title ten, chapter eight, part three of tlie Revised Statutes, as amended by chapter four hundred and sixty of the laws of 1861, is hereby farther amended so as to read as follows : " Sec. 30. On receiving such affidavit such officer shall issue his- summons, describing the premises of which possession is claimed, and requiring any person in possession of the said premises, or claiming the possession thereof, forthwith to remove from the same, or to show cause before the said magistrate, within such time as shall appear reasonable, not less than three nor more than five days, why possession of the said premises should not be delivered to such ■applicant; provided, however, that in the cases Avhere a person continues in possession of the demised premises after the expira- tion of his term, without the permission of his landlord, the magis- trate, if the summons be issued on the day the term expires, or on the day next thereafter, may direct such summons to be made returnable on the same day, at any time after twelve o'clock noon, and before six o'clock in the afternoon." Sec. 2. Section thirty-two of title ten, chapter eight part three of the Revis3d Statutes, as amended by chapter six hundred and eighty-four of the Laws of eighteen hundred and fifty-seven, is hereby further amended so as to read as follows ; "Sec. 32. Such summons shall be served, either " 1. By delivering to the tenant to whom it shall be directed, a true copy thereof, and at the same time showing him the original ; or " 2. If such tenant be absent from his place of residence, and such place is in the city or town in which the demised premises are situated, by leaving a copy thereof at such place with some person of mature age residing on the premises ; or " 3. If no such person can be found at such place, or if such place is not in the same city or town with the demised premises, and the tenant cannot be found upon the demised premises by leaving a copy thereof at the demised premises with some person of mat re age residing thereon, or, if there be no such person residing thereon, with some person of mature age connected with the demised premises by employment in any business for which the premises are used, or, if no person residing or employed on the demised premises can be found thereon, then such service may be made by affixing such copy upon a conspicu nis part of said demised premises. . If the summons be returnable on the day on which it is issued, it shall be served at least two hours before LAWS OF 1868. the hour at which it is made returnable, and if not returnable on the same day, it shall be served at least two days before the day on which it is made returnable. The proof of the service of the sum- mons shall state particularly the exact time, place and manner of service, including the name of the person on whom the service was made, if it can be ascertained." Sec. 3. It shall be the duty of every person to whom a copy of a summons shall be delivered in pursuance of subdivision two or three of section thirty-two of title ten, chapter eight, part three of the Revised Statutes, to deliver such copy to the tenant to whom the same is directed, or, if such tenant cannot be found, to his agent for the demised premises, without any avoidable delay; and a copy of this section shall be written or printed upon the outside of every such copy. If neither the tenant nor his agent can be found for that purpose, then the person to whom such copy is de- livered shall take the same to the magistrate by whom the sum- mons is issued, at the time and place named therein, and inform him that the tenant cannot be found. Every person who shall wilfully violate any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by imprisonment for not less than thirty days nor more than one year. Sec. 4. Chapter seven hundred and fifty-four of the laws of 'eighteen hundred and sixty-six, entitled "An act. in relation to summary proceedings to recover the possession of laud situated in the counties of New Tork and Kings," is hereby repealed. Sec. 5. Section forty-seven of title ten, chapter eight, part three of the Revised Statutes, is hereby amended so as to read as follows : " Sec. i1. The Supreme Court may award a certiorari for the purpose of examining any adjucation made, on any application hereby authorized ; but the proceedings on any such application shall not be stayed or suspended by such writ of certiorari, or any other writ or order of any court or officer. The judgment of the Supreme Court, at a general term, upon such certiorari, shall be final, unless an appeal shall be allowed by the said court, at a general term, before the end of the term next after that at which the judgment was rendered. The appeal upDU any judgment rendered upon any such certiorari may be brought on for argument as a preferred cause at any term of the Court of Appeals, by either party, upon fourteen days' notice." See. 6. Nothing contained in this act shall prevent an appeal to the Coijrt of Appeals from any judgment heretofore rendered by the Supreme Com-t upon a certiorari awarded, pursuant to section forty-seven, title ten, chapter eight, part three of the Revised States, provided that such appeal has already been taken, or shall be taken, within one year, from and after the passage of this act ; and any writ of error or appeal from any such judgment heretofore rendered may be brought on for argument, as provided in and by the said section as hereby amended. TABLE OF CONTENTS. STATUTORY PROVISIONS. Page Sec. 1. Object of the statute, .... 25 3. To what cases the statute applies, . . .26 3. When the relation of landlord and tenant may be said to exist, .... 28 4. The cases in which the landlord may resort to this remedy, ...... 35 5. Proceedings for holding over after the expiration of the term, ..... 37 6. As to the expiration of the term, . . .37 7. As to the holding over, ... 41 8. Without permission, . . • . .42 9. Oases in which landlord may proceed for non-pay- ment of rent, .... 44 10. As to the rent becoming due, . . .45 11. The demand of the rent, ... 46 12. The default in payment and the rent remaining unpaid, . . . . .52 13. Holding over, .... 53 14. Without permission, . . . .54 15. The magistrates who may administer this remedy, 54 16. How the magistrate acquires power to act, . 56 17. TheafBdavit, . . . . .58 18. Of the matter common to the aifldavit in all cases, 58 19. The venue, . . . .' .58 20. The deponent, or, the proper person to make the aflBdavit, . . . . .59 21. Description of the deponent, . . 60 22. The letting and the terms thereof, . . 61 23. Description of the premises, . . . 62 24. Holding over without permission, . . 63 25. Stating names, &c., of parties proceeded against, 63 O CONTENTS. Page Sec. 26. Before whom the affidavit is to be sworn ; its subscription, &c., . . . .64 27. Statement of facts, .... 66 28. Affidavit is not evidence, . . . .67 29. Affidavit cannot be twice used, . . 67 30. Affidavit should be used promptly, . . 67 31. Of the affidavit on a proceeding for holding over, 68 33. The expiration of the term, ... 68 33. Of the affidavit on a proceeding for non-payment of rent, ..... 69 34. How and when the rent became due, and the amount, . . . . .69 35. Statement of demand, ... 70 Proceedings on Affidavit. Sec. 36. Request of summons, . . . .70 37. The summons, ... 71 38. Service of the summons, . . . .75 39. Time of service, .... 75 40. Manner and place of service, . . .77 41. On whom the service is to be made, . . 78 42. By whom service may be made, . . .79 43. Proof of service and return, ... 79 44. Duty of under-tenants served with summons, . 82 45. Proceeding on return-day of summons, . 83 46. Tenant removing, . . . .83 47. Time for showing cause, ... 83 Proceedings on Eetv/m-Da/y, where no one Appears to Show Cause. Sec. 48. Issuing warrant, .... 84 49. Further effect of non-appearance, . . 85 Proceedings on Return-Day, where there is an Appearance to Show Cause. Sec. 50. Who may show cause, ... 85 51. How cause may be shown, . . .85 §8. Preliminary objection^, ... 85 CONTENTS. 7 Page Sec. 53. The counter-affidavit, . . . .86 64. Mode of trial. Demand of jury, . . 89 55. Adjournm,eDts, . . . . .90 56. Discontinuance of proceedings, . . 91 57. Obtaining a jury, . . . . .91 58. Summoning jurors, .... 92 59. Procuring attendance of witnesses, . . 93 Trial hy or with a Jury. Sec. 60. Drawing the jury, ... 95 61. Challenges, ..... 96 62. New venire when to issue, . . .99 63. Oath to jurors, .... 99 64. The trial, . . . . . .99 65. Power of the magistrate on the trial, . 100 66. Deliberation of the jury, . . . 100 67. Discharging jury without a verdict, . 101 68. The verdict, . . . . .101 69. Proceedings on verdict, . . . 102 70. Costs, how collected, .... 104 Trial without a Jury. Sec. 71. "When and how had, .... 104 72. Continuance of proceedings in case of death, dis- ability, &c., of magistrate, . . . 106 73. Decision in favor of tenant, . . 108 74. Decision in favor of landlord, . . 108 75. Binding effect of decision, . . . 108 76. Evidence of proceedings, . . .109 77. Staying issuance of the warrant by paying or se- curing the rent. . , . . 110 78. Staying the issuance of the warrant by an appeal, 110 79. Staying the issuance of the warrant by injunction, 111 80. Compelling the magistrate to issue the warrant, 113 81. The warrant, . . . . .113 82. Execution of warrant, . . . 115 83. Effect of the warrant, . . . .116 84. Restoring premises to tenant, mortgagee, or judg- pveot creditor, , , . ,119 8 CONTENTS. REVIEW OF PROCEEDINGS. Sec. 85. Modes of review, I. — Beview iy Certiorari. Sec. 86. Certiorari does not issue of course, 87. Wlio may apply for certiorari, 88. Application for certiorari, 89. Issuing the certiorari, 90. The certiorari, its form, &c., 91. Service of the certiorari, 92. Certiorari does not stay the proceedings, 93. Motion to quash or to supersede the certiorari, 94. Death of justice before making a return, 95. Filing return. Return how compelled, 96. The return, .... 97. Amended return, .... 98. Assignment of error in fact, 99. Hearing on the return, 100. Judgment, .... 101. Costs, ..... 102. Damages, .... 103. Restitution and re-restitution, 104. Review in court of appeals. II. — Beoiew iy Appeal. Sec. 105. In what cases, .... 106. Who may appeal, 107. Within what time to appeal, 108. Requisites to an appeal, 109. Notice of appeal, . 110. Service of notice of appeal, 111. Payment of costs and fee for the return, 112. Security, .... 113. Stay of proceedings by the appeal, 114. Dismissal of appeal, 115. The return, 116. Amended return, .■ 117. Notice of argument of appeal, 118. The hearing, 119. Costs on the appeal, 120. Judgment-roll, . 121. Judgment is final, . 122. Costs, how collected, . 128. Effect of reversal of decision, Page 121 122 ,123 124 126 127 127 128 129 131 131 132 135 136 137 138 188 139 189 140 141 143 144 145 148 148 149 150 152 163 154 155 156 158 159 160 160 160 160 CONTENTS. \ APPENDIX. FORMS. Page 1. Notice to determine tenancy at will or at sufferance, 161 2. Demand by landlord of payment of rent or surrender of possession of premises, . . .161 3. Demand by agent of payment of rent or surrender of possession, . . . . . 162 4. AfBdavit for summons for holding over by tenant at will or by sufferance, .... 163 5. Affidavit of service of notice to determine tenancy at will or by sufferance, . . . . 164 6. AfBdavit for summons on non-payment of rent, . 164 7. Affidavit by grantee of lessor for summons on non- payment of rent, .... 166 8. Affidavit for summons on tenant's holding over his term, . . . . . .167 9. Affidavit by grantee of lessor for summons on tenant holding over, . . . . .168 10. Afadavit for summons on holding over against assignee of lessee, ..... 169 11. Affidavit for summons on non-payment of rent against assignee of lessee, . . . . .169 12. Affidavit on non-payment of rent where the applicant is assignee of lessor, .... 170 18. Affidavit on holding over, where the applicant is as- signee of lessor, ..... 170 14. Affidavit where the applicant is heir at law of the les- sor, . . . . . .171 15. Affidavit where the applicant is devisee of the lessor, 171 16. Affidavit where the applicant is executor of the lessor, 172 17. Affidavit where the applicant is administrator of the lessor, ...... 172 18. Summons to tenant at will or by sufferance holding over, . . . . . .173 19. Summons to tenant for a year or part of a year holding over, ...... 174 20. Summons on non-payment of rent, . . 175 21. Affidavit of service of summons, . . . 177 1* 10 CONTENTS. Page 23. Counter-affidavit — General denial . . . 178 23. " Denial of demand of rent, . 178 24. " Denial of notice requiring payment, 179 25. " That rent has been paid, . 179 26. " Denial that rent was payable in ad- vance, .... 179 Record of decision by magistrate, . . ISO Bond for payment of rent and costs, to stay issuance of warrant, . . . . . 181 Magistrate's allowance of bond, . . . 182 Warrant to remove tenant where no cause is shown, 182 Warrant to remove, after a trial by the magistrate with- out a jury, ..... 183 Warrant to remove, after a trial by the magistrate with a jury, ..... 184 Warrant to remove, after a second trial by the magis- trate with a jury, . . . . .185 Warrant to remove, on decision by the magistrate after a trial by a jury who were unable to agree, . 186 Warrant to remove tenant at will or by sufferance, . 187 OflScer's return to warrant, . . . 187 Precept for jury, . . . . .187 Oousfable's return to precept, . . . 188 Subposna, ...... 188 Clause for collection of costs to be inserted in warrant, where costs ai-e directed to be paid, . .189 Affidavit on which to apply for certiorari, . 189 Certiorari, ..... 191 Return to certiorari, . . . . 192 Judgment record on certiorari, . . . 194 Writ«f restitution, and for costs, . . 195 Notice of appeal, . . . . .197 Undertaking on appeal, . . . . 197 Return on appeal, . . . . .199 Judgment on appeal, . . . iqq 26a, 27. 28. 29. SO. 31. 32. 33. 34. 35. 36. 37. 88. 39; 40. 41. 42. 43. 44. 45. 46. 47. 48. Ibdex, 201 THE PEINOIPAL STATUTORY PROVISIONS REFERRED TO IN THE SUBSEQUENT PAGES. [The sections are divided into paragraplis, numbered consecutively, and the subsequent references are to tliese paragraplis by the mark ^ and the number.] \_^ 1.] Any tenant or lessee at will, or at sufferance, or for any part of a year, or for one or more years, of any houses, land or tenements, and the assigns, under-tenants, or legal representatives of such tenant or lessee, may be removed from such premises ["f 2] by any judge of the county courts of the county, or by any justice of the peace of the city or town where the premises are situated, or by any mayor or recorder of the city where such premises are situated ; or, in the city of New York, by the mayor, recorder,* any justice of the Marine Court, or any one of the justices of the district courts of the city of New York [the city judge of the city of Brooklyn, when the prem- ises are situate within the county of Kings (1849, ch. 125, s. 26), a justice of the Superior Court of the city of Buf- falo, when the premises are situate within that city (1857, ch. 361, s. 25) ], in the manner hereinafter prescribed, in the following cases : * Perhaps the city judge. He has all judicial powers vested by law in the recorder (1850, ch. 205, s. 3). 12 8TAT0TOEY PEOVISIONS. [T 3.] 1. Where such person shall hold over and continue in possession of the demised premises, or any part thereof, after the expiration of his term, without the permission of the landlord. [% 4.] 2. Where such person shall hold over, with- out such permission as aforesaid, after any default in the payment of rent pursuant to the agreement under which such premises are held, and a demand of such rent shall have been made, or three days' notice in writing, requir- ing the payment of such rent or the possession of the premises, shall have been served by the person entitled to such rent, on the person owing the same, in the man- ner prescribed for the service of the summons in the thirty-second section of this title {i. e., ^ 9, infra; 2 R. S. 512, § 28, tit. 10, ch. 8, part 111. ; as amended, 1849, ch. 193, s. 1, and ch. 380, s. 1 ; 1857, ch. 344 ; 1860, ch. 300. There are two other subdivisions to this section, providing for cases of insolvency and for sales on execution ; but as the subsequent pages do not refer to these provisions, they are here omitted.') [Tf 5.] In case of proceedings under the second sub- division of section twenty-eight, title ten, chapter eight of the third part of the Eevised Statutes («. e., T[ 4, supra), if the unexpired term of the lease under which the premi- ses are held exceeds five years at the time of issuing the warrant upon such proceedings, the lessee, his assigns or personal representatives, may, at any time within'one year after possession of the demised premises shall have been delivered to the landlord, pay or tender to the lessor, his representatives or attorney, or to the officer who issued the warrant, all rent in arrear to the time of such payment or tender, and all- costs and charges incurred by the land- STATUTOKY PEO VISIONS. 13 lord ; and in such case the premises shall be restored to the lessee, who shall hold and enjoy the same without any new lease thereof, according to the terms of the original demise ; and any mortgagee of the lease, or of any part thereof, who shall not be in possession of the demised premises, or any judgment creditor of the lessee who shall within one year after the execution of such warrant pay all rent in arrear, all costs and charges as aforesaid, and perform all the agreements which ought to be per- formed by the first lessee, shall not be affected by such recovery ; and such judgment creditor may file a sugges- tion of such payment upon the record, and may issue exe- cution for the amoimt of the original judgment and of such payment (Laws 1843, chap. 240, repealing Laws 1840, ch. 163). [% 6.] Any landlord or lessor, his legal representa- tives, agents or assigns, may make oath, in writing, of the facts which, according to the preceding section [i. e., sec- tion 28, ^^ 1, 3, 4], authorize the removal of a tenant, describing therein the premises claimed ; and may present the same to one of the officers in the last section specified [i. e., section 38, t 2] (2 E. S. 513, § 29). [T 7.] On receiving such affidavit, such officer shall issue his summons, describing the premises of which the possession is claimed, and requiring any person in the possession of said premises, or claiming the possession thereof, forthwith to remove from the same, or to show cause before the said magistrate, within such time as shall appear reasonable, not less than three, nor more than five days, why possession of said premises should not be de- livered to such applicant ; provided, however, that in the cases where a person continues in possession of the de- li STATUTOET PEOVISIONS. mised premises after the expiration of his term, without permission of his landlord, the magistrate may direct such summons to be made returnable on the same day (2 R. S. 513, § 30, as amended 1851, ch. 460, s. 1). [T[ 8.] Previous to issuing such summons in the case of a tenancy at will or at sufferance, the magistrate shall be satisfied by affidavit that such tenancy has been termi- nated by giving notice in the manner prescribed by law. And if application be made for such summons to be served on any person holding over real estate which shall have been sold on execution, the magistrate shall in like man- ner be satisfied that a demand of the possession of such premises has been made (2 R. S. 513, § 31). [^ 9.] Such summons shall be served, either, 1. By delivering to the tenant to whom it shall be directed, a true copy thereof, and at the same time show- ing him the original ; or, 2. If such tenant be absent from his last or usual place of residence, by leaving a copy thereof at such place, with some person of mature age residing on the premises, or if there be no such person residing thereon, then such ser- vice may be made by affixing such copy upon a conspicu- ous part of said demised premises (2 R. S. 514, § 32, as amended 1857, ch. 684, s. 1). [If 10.] If, at the time appointed in the said sum- mons, no sufficient cause be shown to the contrary, and due proof of the service of such summons be made to such magistrate, he shall thereupon issue his warrant to the sheriff of the county, or to any constable or marshal of the city or town where the premises are situated, com- manding him to remove all persons from the said premi- ses, and to put the said applicant to such magistrate into the full possession thereof (2 R. S. 514, § 33). STATUTOEY PROVISIONS. 16 [1[ 11. J Any person in possession of such demised premises, or any person claiming possession thereof, may, at the time appointed in such summons for showing cause, file an affidavit with the magistrate who issued the same, denying the facts upon which the said summons was issued, or any of those facts, and the matters thus contro- verted may be tried by the magistrate or by a jury ; pro- vided either party to such proceedings shall, at the time designated in such summons for showing cause, demand a jury, and at the time of such demand pay to such magis- trate the necessary costs and expenses of obtaining such jury (2 R. S. 514, § 34, as amended 1849, ch. 193, s. 2, and again 1857, ch. 684, s.,2). [^ 12.] In order to form such jury, the magistrate with whom such affidavit shall be filed shall nominate twelve reputable persons, qualified to serve as jurors in courts of record, and shall issue his precept, directed to the sherifiT or one of the constables of the county, or any constable or marshal of the city or town, commanding him to summon the persons so nominated to appear be- fore such magistrate at such time and place as he shall therein appoint, not more than three days from the date thereof, for the purpose of trying the said matters in dif- ference (2 R. S. 514, § 35, as amended 1849, ch. 193, s. 3). 1% 13.] Six of the persons so summoned shall be drawn in like manner as jurors in justices' courts, and shall be sworn by such magistrate well and truly to hear, try, and determine the matters in difference between the parties (2 R. S. 514, § 36, as amended 1849, ch. 193, S.4). \_% 14.] Afler hearing the allegations and proofs of the parties, the said jury shall be kept together until they 16 STATtTTOET PBOVISIONS. agree on their verdict, by the sheriff or one of his depu- ties, or a constable, or by some proper person appointed by the magistrate for that purpose, who shall be sworn to keep such jury as is usual in like cases in courts of record (2 R. S. 514, § 37). [^ 15.] If such jury cannot agree, after being kept together for such time as such magistrate shall deem reasonable, he may discharge them and nominate a new jury, and issue a new precept in manner aforesaid (2 E. S. §38). [T[ 16.] If the decision of the magistrate or the ver- dict of the jury shall be in favor of the lessor or landlord, or the other person claiming the possession of the premi- ses, the magistrate shall issue his warrant to the sheriff, or to any constable of the county in which the premises are situated, commanding such officer to put such land- lord, lessor or other person into possession as hereinbe- fore directed (2 R. S. 515, § 39, as amended 1857, eh. 684, s. 3). \_% 17.] The officer to whom such warrant for deliv- ering possession shall be directed and delivered, in either of the cases aforesaid, is hereby required to execute the same according to the tenor thereof (2 R. S. 515, § 40). [^ 18.] Any magistrate before whom such applica- tion may be pending, may, upon the request of either party, adjourn the hearing of such application, for the purpose of enabling such party to procure his Witnesses, wherever it shall appear to be necessary ; but such ad- journment shall in no case exceed ten days (2 R S 515 § 41). [% 19.] Any magistrate before whom such applica- tion may be pending, may, at the request of either party, STATUTOET PKOVISIONS. lY issue his subpoena, requiring any person to appear and testify before the jury touching the matters herein di- rected to be heard by them ; and every person who, being served with such subpoena, shall, without reasonable cause, refuse or neglect to appear, or, appearing, shall refuse to answer upon oath touching the matters aforesaid, shall be subject to the proceedings and penalties provided by law in similar cases (2 E. S. 515, § 42). [*f 20.] Whenever a warrant shall be issued as afore- said, by any such magistrate, for the removal of any tenant from any demised premises, the contract or agreement for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties shall be deemed to be canceled and annulled (2 R. S. 515, § 43). [% 21.] The issuing of such warrant of removal shall be stayed, in the case of a proceeding for the non-payment of rent, if the person owing such rent shall, before such warrant be actually issued, pay the rent due and all the costs and charges of the proceedings, or give such security as shall be satisfactory to the said magistrate to the per- son entitled to such rent, for the payment thereof and the costs aforesaid in ten days. And in case the person giving such security shall not within the said ten days produce to the magistrate satisfactory evidence of the payment of the rent and costs, the warrant of removal may at any time thereafter be issued (2 R. S. 515, § 44, as amended 1857, ch. 684, s. 4). [Tf 22.] The Supreme Court may award a certiorari for the purpose of examining any adjudication made on any application hereby authorized ; but the proceedings on any such application shall not be stayed or suspended by such writ of certiorari, or any other writ or order of any court or officer (2 R. S. 516, § 47). 18 STATtTTOET PKOVISIONS. ' [% 23.] Whenever any such proceedings brought be- 1 fore the Supreme Court by certiorari, shall be reversed or quashed, the court may award restitution to the party injured, with costs, and may make such orders and rules, and issue such process, as may be necessary to carry their judgment into effect (2 R. S. 516, § 48). \_% 24.] In all cases of an application pursuant to the provisions of this Article, the prevailing party shall re- cover costs, and may maintain an action for the recovery thereof; and if the proceedings shall be reversed or quashed by the Supreme Court, the tenant or lessee may recover against the person making application for such removal any damages he may have sustained by reason of such proceedings, with costs, in an action on the case (2R.S. 516, §49). ['H 25.] Nothing contained in the two preceding chapters shall be construed to impair the rights of any landlord or lessor, or of any tenant, in any case not herein provided for (2 R. S. 516, § 50). \_% 26.] In case of proceedings before a justice of the peace, under this Article, the justice shall enter the find- ing of the jury, or, in case no jury is called under the fore- going provisions, his final decision upon said application for such warrant, in his docket, and render judgment there- for, and include in such judgment cost of such proceed- ings to the prevailing party, at the same rate of fees now allowed by law in civil actions in courts of justices of the peace, and limited in like manner ; and in the warrant for delivery of possession, or by execution issued by him, the justice shall direct the collection of such costs (Laws 1849, p. 292, s. 1). [T[ 27.] ^. The proceedings before suqh justice may STATUTORY PKOVISIONS." 19 be removed by appeal to the county court of the county, in the same manner and with the like effect, and upon like security, as appeals from the judgment of justices of the peace in civil actions, except that the decision of such county judge shall be an affirmance or reversal of such judgment, and be final. But in addition to the security for such judgment, as required by law in case of such ap- peal, in order to stay the issuing of such warrant or exe- cution, there shall, in case of appeal by the tenant, be security also given for the payment of all rent accruing or to accrue upon said premises subsequent to the said application to such justice (Laws of 1849, p. 292, s. 2). [% 28.] 3. No appeal shall under this act be allowed, unless such security for said judgment shall be given and approved by the judge at the time of allowing such appeal, and served on the justice with the affidavit for appeal (Laws of 1849, p. 292, s. 3). [Tf 29.] The appellant shall, within twenty days after judgment, serve a notice of appeal, stating the grounds upon which the appeal is founded. If the judgment is rendered upon process not personally served, and the de- fendant did not appear, he shall have twenty days, after personal notice of the judgment, to serve the notice of appeal provided for in this and the next section (Code, § 353). [T 30.] The notice of appeal must, within the same time, be served on the justice, personally, if living and within the county, or on his clerk, if there be one, and on the respondent, personally, or by leaving it at his resi- dence with some person of suitable age and discretion ; or, in case the respondent is not a resident of such county, gr cannot, after due diligence, be found t}iereip, in the 20 STATUTOEY PEOVISIONS. same mannfer on the attorney or agent, if any, who is a resident of such county, who appeared for the respondent on the trial ; and if neither the respondent nor such agent or attorney can he found in the county, the notice may be served on the respondent by leaving it with the clerk of the appellate court ; and the appellant must, at the time of the service of the notice of appeal on the jus- tice, or on his clerk, as herein provided, pay to such justice or clerk the costs of the action, included in the judgment, together with two dollars, costs of the return, which shall be included in the judgment for costs on reversal (Code, part of § 354). \% 31.] If the appellant desire a stay of the execu- tion of the judgment, he shall give security, as provided in the next section (Code, § 355). [% 32.] The security shall be a written undertaking, executed by one or more sufficient sureties, approved by the county judge or by the court below, to the effect that if judgment be rendered against the appellant, and execu- tion thereon be returned unsatisfied, in whole or in part, the sureties will pay the amount unsatisfied (Code, § 356). [% 33.] The delivery of the undertaking to the court below shall stay the issuing of the execution ; or, if it has been issued, the service of a copy of the undertaking, certified by the court below, upon the officer holding the execution, shall stay further proceedings thereon (Code, § 357). [% 34.] Where, by reason of the death of a justice of the peace, or his removal from the county, or any other cause, the undertaking on the appeal cannot be de- livered to him, it shall be filed with the clerk of the STATUTOEY PKOVISIONS. 21 appellate court, and notice thereof given to the respond- ent, or his attorney, or agent, as provided in section 354 ; it shall, thereupon, have the same effect as if delivered to the justice (Code, § 358). [Tf 35.] When, by reason of the death of a justice of the peace, or his absence from the county, or any other cause, the notice of appeal cannot be served, as provided by section 353, it may be served by leaving the same with the clerk of the county (Code, § 359). [T[ 36.] The court below shall thereupon, after ten days, and within thirty days after service notice of the appeal, make a return to the appellate court of the testi- mony, proceedings, and judgment, and file the same in the appellate court. The return may be compelled by attachment. But no justice of the peace shall be bound to make a return, unless the fee prescribed by the last section of this chapter [^ 47, post] be paid on service of the notice of appeal (Code, § 360). [T[ 37.] When a justice of the peace, by whom a judgment appealed from was rendered, shall have gone out of office before a return is ordered, he shall, neverthe- less, make a return in the same manner and with the like effect as if he were still in office (Code, § 361). {_% 38.] If the return be defective, the appellate court may direct a further or amended return as often as may be necessary, and may compel a compliance with its order by attachment. And the court shall always be deemed open for these purposes (Code, § 362). [^ 39.] If a justice of the peace, whose judgment is appealed from, shall die, become insane, or remove from the State, the appellate court may examine witnesses on oath, to the facts ahd circumstances of the trial or judg- 22 stAttjtoet PEovistojrS. ment, and determine the appeal, as if the facts had been returned by the justice. If he shall have removed to another county -within the State, the appellate court may compel him to make the return, as if he were still within the county where the judgment was rendered (Code, § 363). [f 40.] If a return be made, the appeal may be brought to a hearing at a general term of the appellate court, upon a notice by either party of not less than eight days. It shall be placed upon the calendar, and continue thereon, without further notice, until finally disposed of ; but if neither party bring it to a hearing before the end of the second term, the court shall dismiss the appeal, unless it continue the same by special order for cause shown (Code, part of § 364). [T[ 41.] The appeal shall be heard on the original papers, and no copy thereof need be furnished for the use of the court (Code, § 865). [% 42.] Upon the hearing of the appeal, the appellate court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not aifect the merits. In giving judgment, the court may affirm or reverse the judgment of the court below, in whole or in part, and as to any or all the parties, and for errors of law or fact. If the appeal is founded on an error in fact in the proceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the alleged error in fact on affi- davits, and may, in its discretion, inquire into and determ- ine the same upon examination of the witnesses (Code, part of § 366, and see % 27, ante). [1 43.] To every judgment upon an appeal there STATtTTOET PROVISIONS. 23 shall be annexed the return on which it was heard, which shall be filed with the clerk of the court, and shall consti- tute the judgment-roll (Code, § 367). [Tf 44.] If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party (Code, § 368). [% 45.] If the judgment below, or any part thereof, be paid or collected, and the judgment be afterwards re- versed, the appellate court shall order the amount paid or collected to be restored, with interest froni the time of such payment or collection. The order may be obtained on proof of the facts made at or after the hearing, upon a previous notice of six days ; and if the order shall be made before the judgment is entered, the amount may be included in the judgment (Code, § 369). [^ 46.] If, upon an appeal, a recovery be had by one party, and costs be awarded to the other, the appel- late court shall set off the one against the other, and render judgment for the balance (Code, § 370). [% 47.] The following fees and costs, and no other, except fees of officers, and disbursements, and witnesses' fees, shall be allowed on appeals : To the appellant, on reversal, fifteen dollars. To the respondent, on affirmance, twelve dollars. To a justice of the peace, for his return, two dollars. If the judgment appealed from be reversed in part, and affirmed as to the residue, the amount of costs al- lowed to either party shall be such sum as the appellate court may award, not exceeding ten dollars. If the appeal be dismissed for want of prosecution, as 24 STATOTORf PROVISIONS. provided by section 364, no costs shall be allowed to either party (Code, part of § 371). [% 48.] All the provisions of this act, from section one to section seventy-six, both inclusive, apply exclu- sively to these [district] courts. Section 77 relates to the justice only, who is thereby authorized to try special proceedings and perform magisterial and such other duties as are therein conferred upon him ; and the trial of an action or special proceeding may be continued from day to day, or from one day to any other day or days, until the same is finished. A special proceeding commenced before one .justice may be continued before any other justice having jurisdiction of the subject-matter, the same as though it had been originally commenced before him. A transcript of any proceedings had before either of said justices, or of any other paper filed with him, or- of the minutes of any testimony taken by or before hiin, certified by him to be correct, shall be presumptive evidence of the facts therein contained (Laws of 1857, ch. 344, § 78). [If 49.] The justice, when actually engaged in the hearing or trial of any special proceeding, shall have all the power and authority conferred on these [district] courts by sec. 66 of this act ; and he may compel the at- tendance of witnesses on the trial of such special pro- ceeding, the same as if it was the trial of an action pend- ing in a court of record, except that subpoenas shall be signed by the justice ; and he is authorized to punish them for neglect to attend the same, as courts of record are authorized to do (Laws of 1857, ch. 344, § 79). THE • LAW AND PEACTICE ON PROCEEDIKGS BY LANDLORDS TO EBGOVBK Possession of Demised Premises ON THB ' OK EXPIRATION OF THE TERM. [The marks and numbers as thus : ^_ 25, refer to corresponding marks and num* bers in the preceding statutory proTisions.] Section 1. — Object of the Statute. — The object of the preceding statutory provisions is to afford a lamdlord a summary remedy to recover the posses- sion of the demised premises where the tencmt (1) neglects to pay his rent, or (2) holds over and con- tinues in the possession of the demised premises after the expiration of his term, without permis- sion. These provisions do not, however, impair or alter the rights of landlords and tenants, further or otherwise than as is specially provided (1" 25). The remedy here given, being in derogation of the common law, and having the statute only for its foundation, it behooves all those who would avail 2 26 CASES TO WHICH themselves of the right thus conferred, to take care strictly to pursue, in all respects, the formalities which the statute prescribes. A failure in this regard may not only render the proceedings abor- tive, but also render those seeking to enforce them trespassers (see Savacool v. Boughton, 5 Wend. 170). It matters not why the statute is not fol- lowed, for, " when a rule is laid down for the govern- ment of inferior jurisdictions, the courts are not at liberty to inquire whether it can be safely departed from, nor whether the mode pursued is equally beneficial to the party concerned " (Eeynolds v. Orvis, 7 Cowen, 269 ; Barnes v. Harris, i Corns. 384). The statute, however, being a remedial one, is to be construed liberally to carry into effect its intent, by suppressing the mischief and advancing the remedy (Lynde v. Noble, 20 Johns. 80, cited lY Wend. 4Y4 ; see, also, Farrington v. Morgan, 20 Wend. 207 ; Smith v. Moffatt, 1 Barb. 67). But the proceedings are to be carefully watched, lest " they be turned into the means of working injus- tice and oppression " (Bronson, J., Hill v. Stocking, 6 Hill, 317). Sec. 2. — To what oases the statute applies. — So much of the statute as is now under consider- ation reaches only to the case of a landlord pro- ceeding against a tenant,* hence no one can avail * See end of f 1, ante, and, by laws of 1850, p. 285, this sum- mary remedy is given to lessees of the Corporation of Brooklyn, on sales of land for taxes. THE STATUTE APPLIES. 27 himself of this remedy unless he is landlord of the person proceeded against in respect of the premises the possession of which is sought to be recovered, and the only remedy he can obtain in these pro- ceedings (save costs in certain cases) is the recovery of the possession of the demised premises. This implies that the person proceeded against must be tenant to such landlord in respect of such premises. The terms landlord and tenant ..are here employed in a peculiar sense,* for — First. The statute does not apply to every easel of landlord and tenant commonly so called, but " only where the con/oentional relation of landlord j and tenant exists, and not where it is created by operation of law " (Evertson v. Sutton, 5 "Wend. 281 ; Eoach V. Cosine, 9 id. 227 ; Sims v. Humphreys, 4 Denio, 185; Benjamin v. Benjamin, 1 Selden, 388 ; "Williams v. Bigelow, 11 How. 84 ; Burnett v. Scrib- ner, 16 Barb. 625). And the question, whether or { not the relation of landlord and tenant exists, is one of jurisdiction, and open for review (Burnett v. Scribner, 16 Barb. 628). Secondly. The statute does not apply to every case where the conventional relation of landlord and tenant exists, but only to tenants or lessees (1) at will, (2) at sufferance (3) for any part of a year, and (4) for one or more years.f * See Speaker v. Cook, 16 k. Y. (2 Smith), 571. f Tenant at will, it is said, includes tenant " from year to year" (Park ii. Castle, 19 How. 29; Prouty v. Prouty, 6 id. 81; 28 EELATION OF Thirdly. The term landlord and tenant means, sometimes, late landlord and late tenant, as in the case of a proceeding to recover possession for hold- over the term, i. e., after the relation of landlord and tenant has ceased to exist. Fourthly. As will be seen in the next succeed- ing section, the term landlord and tenant extends to assigns, representatives, and under-tenants ; and — Fifthly. Probably the statute extends to the case of a corporation landlord or a corporation ten- ant. The statute says: "Where such person" (TT 3, 4). Person may include a corporation (1 K. S. 768, s. 3 ; 2 K. S. Y03, s. 35 ; Laws 1867, vol. I., p. 729, s. 80 ; State of Indiana v. Worum, 6 Hill, 33 ; The People v. May, 27 Barb. 238). The proceeding should be in the name of the corpo- ration (The People v. Fulton, 1 Kernan, 94). Sec. 3. — When the relation of landlord am,d tenamt may he said to exist. — As a general defin- ition, it is said a landlord is one of whom lands or tenements are holden, and the tenant is he who holds such lands or tenements ; and, that the hold- ing is with the permission of the landlord, is an essential element in the relation of landlord and tenant, and without which it cannot exist. It is Post V. Post, 15 Barb. 256; and see Jackson v. Salmon, 4 Wend. 327 ; Kowan o. Lyttle, 11 id. 619 ; and contra by a county judge, Wright v. Mosher, 16 How. 454). Tenants from year to year are included in the expression tenants for one or more years (WoodfaU's Land, and Ten. 163). LANDLOED AND TENANT. 29 not, however, in every ease where one holds by the permission of another that such a relation of land- lord and tenant exists as the statute now under consideration contemplates, and it has heen held that within this statute, and for the purposes of this remedy, the relation of landlord and tenant did not exist in the following instances : 1. An agreement to work a farm on shares and possession under such agreement (Oakley v. Schoonmaker, 15 "Wend. 226 ; Caswell v. Districh, id. 379 ; Put- nam V. Wise, 1 Hill, 234). 2. An agreement for sale and purchase, and possession under such agreement (Wil- liams V. Bigelow, 11 How. 84 ; Burnett V. Scribner, 16 Barb.' 622 ; Dolittle v. Eddy, 7 id. 75 ; Kenada v. Gardner, 3 id. 589 ; Sims v. Humphrey, 4 Denio, 185). 3. Where a tenant for the life of another continues in possession after the deter- mination of his estate (Livingston v. Tanner, 4 Kernan, 14 N. Y. 64 ; revers- ing S. C, 12 Barb. 481 ; see, also, Torrey V. Torrey, 4 Kernan, 14 IST. Y. 430). • 4. Where the owner "of the fee subject to a life estate made a lease to a third per- son (Buck V. Binninger, 3 Barb. 391). 6. An agreement to sow different kinds of grain upon a farm and to yield a certain 30 EEXATIOTT OF proportion of eacli crop to the owner (Caswell V. Dietrich, 16 Wend. 3Y9). 6. An agreement of A. with B., a boarding- house keeper, for rooms and board for himself and family, for a year, at a cer- tain amount, by the year, for the rooms, ' and a certain other amount for the board (Martin v. Wilson, 1 Denio, 602). 7. An agreement between H., the owner of a farm, and M., that M. and his wife should work for H. for one year — M. on the farm and his wife in the house (Haywood v. Miller, 3 Hill, 90). 8. One staying at an inn or hotel is a guest, not a tenant (Bac. Ab. tit. Inn. c. 6, 6 ; see, however, Eol. Ab. 3, where it is said an attorney who hires a chamber in an inn for the term of the court is a guasi-tensmt, not a guest. See Edwards on Bailments, 394. Quasi-tensint is not conventional tenant). 9. Where one made an absolute deed of premises, with a defeasance that the grantee was to receive the rent, except of a part of the premises, which part the grantor was to occupy for two years, free of rent, and that the grantee should reconvey, on payment of a cer- tain sum at any time within said two years, held that the conveyance amount- LANDLORD AND TENANT. 31 ed to a mortgage, and that at the expi- ration of the two years, the money re- maining unpaid, the grantee could not treat the grantor as tenant of the part of the premises so occupied by him (Eoach V. Cosine, 9 Wend. 231). 10. Where one J. B. had for several years prior to his death been in possession of the premises, claiming to own same; after his death the applicant stated to his widow that she might continue to occupy until a certain day without pay- ment of rent ; she did not assent or con- sent otherwise than by continuing iu possession ; held that no relation of land- lord and tenant was shown (Benjamin V. Benjamin, 1 Selden, 384). 11. Where the parties in possession entered upon the premises immediately after the expiration of the term of the appli- cant's tenant, but without the tenant's assent or consent, it was held that no relation of landlord and tenant existed between the landlord and the parties so entering (Carlisle v. McCall, 1 Hilton, 399). In the following instances it was held that the relation of landlord and tenant did arise : 1. Where the owner of a house agreed that his creditor might occupy it for one 32 EELATION OF year, and until lie (the owner) paid a mortgage held by such creditor (Hunt V. Comstock, 15 "Wend. 665). 2. A tenant holding over after the expira- tion of his term, may, at the option of the landlord — ^not at the option of the tenant — be treated either as a tenant for a new term or as a trespasser (Con- way V. Starkweather, 1 Denio, 114 ; and see Eowan v. Lyttle, 11 "Wend. 619)- Thus, where the tenant, before, the ex- piration of his term, gave notice to his landlord that he did not intend to be tenant for another year, y.et he con- tinued to occupy the premises for a fortnight after the expiration of his term, held that the landlord might treat him as tenant for the year ensuing the expired tenancy (Conway v. Stark- weather, 1 Denio, 114). 3. One who entered upon premises under an agreement to accept a lease for twenty months, but subsequently re- fused to accept the lease, was held to be a tenant (Anderson v. Prindle, 23 "Wend. 619). The relation of landlord and tenant being once est blished, it extends, by the common law and by LANDLOED AND TENANT. 33 statute, to the grantee or assignee of the landlord,* and to the assigns, under-tenants, or legal represent- atives f of the tenant. Thus the relation was held to exist between the grantee of a lessor and the assignee of a lessee (Birdsall v. Phillips, 17 "Wend. 473 ; Hallenbeck v. Gardner, 20 id. 23 ; "Wiggins V. Woodruff, 16 Barb. 481). And where premises were let by K. to G. by parol, and at the time for the commencement of G.'s term the premises were occupied by M., the tenant of G. semlle, by Nel- son, Ch. J., that G. was within the term assigns, and became landlord of M. within the statute (Gardner v. Keteltas, 3 Hill, 331). * The grantees of any demised lands, tenements, rents, or other hereditaments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee, or assignee, shall have the same remedies by I entry, action, or otherwise, for the non-performance of any agree-/ ment contained in the lease so assigned, or for the recovery of any\ rent, or for the doing of any waste, or other cause of forfeiture, as their grantor or lessor had, or might have had if such reversion ( had remained in such lessor or grantor (1 R. S. 747, s. 23, as modi- fied by laws 1846, ch. 274). Where any lands or tenements shall be occupied by a tenant, a conveyance thereof, or of the rents or profits, or of any other in- terest therein, by the landlord of such tenant, shall be valid, with- out any attornment of such tenant to the grantee ; but the payment of rent to such grantor, by his tenant, before notice of the grant, shall be binding upon such grantee, and such tenant shall not be liable to such grantee for any breach of the condition of the demise untU he shall have had notice of such grant (1 R. S. 739, s. 146). f The term, legal representatives, probably means not only ex- ecutors and administrators, but any one who legally acquires the estate the original tenant had in the premises. 2* 34 EELATION OF A mortgage of his interest by a landlord does not, until foreclosure, alter his relation to his ten- ant, nor does the sale of the landlord's interest by the sheriff, on an execution, until the sale becomes absolute (see Evertson v. Sawyer, 2 Wend. 50Y). Any person entering into demised premises by the consent, assent, or connivance of the tenant, be- comes tenant (Benson v. BoUes, 8 Wend. 175 ; Jackson v. Miller, 6 id. 228 ; Graves v. Porter, 11 Barb. 592), as where a tenant for years made a conveyance in fee of the premises under which the grantee entered upon the premises, held that he en- tered only as assignee of the tenant (Jackson v. Davis, 5 Cowen, 123). A deed, whatever its form or language, conveys only the interest of the grantor (1 E. S. 739, s. 143). Where a landlord, who dies intestate, is the owner of the premises as " real estate," i. e., any estate not determinable by the death of an intes- tate, or lease for years, or for the life of another (1 E. S. 754, s. 27), the premises pass to his heirs ; in other cases the premises pass to his executors, or administrators, or devisees. But in all cases — where the will does not otherwise direct — the right to rent due and unpaid at the death of the land- lord vests in his executors or administrators (1 E. S. 747, s. 21). Where the right to such rent and to the premises both vest in the executors, they may take proceedings for the non-payment of such rent ; but where the right to such rent vests in the execu- LAOTILOKD AND TENANT. 35 tor or administrator, and the right to the premises vests in the heir, there it is supposed that neither can institute these proceedings for non-payment of such rent. The party entitled to the rent is not the landlord, and the landlord is not entitled to the rent. Nor, in such a case, could the heir and execiitor unite in a proceeding to dispossess. No person but the one entitled to the possession can obtain the warrant (Griffin v. Clark, 33 Barb. 47). Where two owners of premises made a joint demise of them, and, after the rent was in arrear, the one owner conveyed and assigned his title in the property and right to the arrears of rent to the other owner, who thereupon demanded the whole rent, and, on its non-payment, obtained a warrant to dispossess, held that he was entitled to institute the proceedings in his own name and without joining the former owner {id.). Where a lease is granted to two jointly, and the lessees have partitioned the demised premises between themselves, the landlord may, it is thought, proceed against the tenants or under-tenants of one portion separately, and after the rent for. the other portion has been paid (Yan Kensselaer v. Gifford, 24 Barb. 349). Owners of rent, in common and severally — not jointly — ^may, it is supposed, each proceed separately for his portion of the rent (Jones V. Felch, 3 Bosw. 63). Sec. 4. — The cases in which the landlord may resort to this remedy. — The cases in which the land- 36 OASES TO WHICH lord may resort to this remedy are prescribed by the statute (Tf 1 and note to sec. *2, ante, p. 26) of these cases. "We are treating of two only — First. Where the tenant (1) holds over and continues in possession of the demised premises, or any part thereof, (2) after the expiration of his term, and (3) with- out the permission of the landlord. Secondly. "Where the tenant (1) holds over, (2) without the permission of the land- lord, (3) after any default in the pay- ment of rent pursuant to the agreement under which the premises are held, and (4) after a demand of such rent. It is only in cases within the above descriptions that the remedy can be had. , The parties cannot, by stipulation or consent, extend the remedy to cases other than those prescribed by the statute (Beach v. Nixon, 5 Selden, 36). "When the remedy by distress for rent existed, the landlord could only proceed for non-payment of rent in the cases where " satisfaction for such rent could not be obtained by distress of any goods ;" and then the question was raised, whether, after a distress which failed to satisfy the rent, the landlord had remaining the right to dispossess ; it was sup- posed he had not (Wilder v. Ewbank, 21 Wend. 587 ; and see Jackson v. Sheldon, 5 Cow. 448). Since distress was abolished it is sometimes a ques- THE STATUTE APPLIES. 37 tion, -whether, after an action for the rent, the land- lord may, pending the action, or after judgment in the action, not satisfied, resort to his remedy to dis- possess. "We see no reason why he may not ; but, if both the proceeding to dispossess and the pro- ceeding by action for the rent were pending to- gether, payment in either proceeding would entitle the tenant to have the other discontinued without costs. Sec. 5. — Proceedings for holding over after the expiration of the term. — ^To entitle a landlord to proceed as for a holding over after the expiration of the term, it must be — First. That the term for which the tenant held the premises has exjyi/red. Secondly. That the tenant holds over and continues in possession of the demised premises, or some part thereof. Thirdl/y. That such holding over is without the permission of the landlord. "We will consider each of these in detail. Seo. 6. — As to the expiration^of the term. — 'Bj the term having expired is meant that the period of time for which the premises were let or leased has expired. It does not mean a determination of the tenancy by " a forfeiture on breach of a condition " in the lease (Oakley v. Schoonmaker, 16 "Wend. 38 EXPIEATION OF 226 ; Beaeh v. Nixon, 6 Selden, 36 ; Benjamin v. Benjamin, 1 id. 383). To apprehend this, the dif- ference between a condition and a conditional limitation should be noticed. "Where, by the words of a lease, the term is limited to continue only until some certain contingency named shall happen, that is a conditional limitation, and on the happening of the contingency the term, expires. Bat if, by the words of the lease, the term is for a certain period named, with a stipulation that, on the happening of a certain event, the lessor may determine the tenancy, this is only a condition. In this latter case, on the happening of the con- tingency, the lease is not at an end, but continues in force, unless the lessor chooses to take advantage of the forfeiture by a re-entry (see Parmelee v. Oswego & Syr. E. E. Co., 2 Selden, 6 N. Y. 80 ; Beach v. Mxon, 5 Selden, 9 N. Y. 37). Thus, where the lease contained a stipulation " that, in case of the non-fulfillment or violation of any or either of the conditions in the lease contained, the hiring and the relation of landlord and tenant shall wholly cease and determine, and the party of the first part (the landlord) shall be entitled to recover immediate possession of said premises under the statute for holding over after the .expiration of the term, without any notice other than the usual sum- mons " before the expiration of the time for which the premises were leased, the tenant failed to fulfill the conditions of the lease, it was held that the THE TEEM. 39 lessor could not proceed under the statute, hecause the stipulation in the lease was a condition only, and the term had not expired, and the right to pro- ceed under the statute could not be conferred by the contract of the parties (Beach v. Nixon, 5 Sel- den, 36). "Where the terms of the holding were that the tenant might occupy for one year, and until the landlord paid' a mortgage held hj the tenant, it was held that payment of the mortgage at any time, after the one year, would cause the term to expire, and, the tenant holding over, the landlord might dispossess him under the statute (Hunt v. Comstock, 15 Wend. 665). And where A. let premises to B. for one year from May, 1833, with a stipulation that if he. A., determined to improve the premises, the term should cease in December, 1833 : before December, 1833, A. gave notice of his deter- mination to improve, nevertheless the tenant held over after December, 1833 ; it was held that the term expired December, 1833, and that A. might proceed under the statute to recover possession (Mblo V. Post, 25 Wend. 285). A lease for one year, from 1st May to 1st May, excludes the first day and includes the last, so that such a term would not expire until midnight of the first of May ; but, by a custom in Albany City, such a lease expires at noon on the first of May (Wilcox V. Wood, 9 Wend. 346), and a similar cus- 40 EXPIEATION OF TEEM. torn exists in New York City {id., Mary Lace's Case, 4 City Hall Eecorder, 158). The term of a dwelling-house may expire by the conviction of the lessee of the oflfence of keeping it as a bawdy-house; it being provided by statute, " Whenever the lessee of any dwelling-house shall be convicted of a misdemeanor in keeping the same as a bawdy-house, the lease or agreement for the letting of such house shall thereupon become void, and the landlord may enter upon the premises so let, and shall have the same remedies to recover the possession thereof as are given by law in case of a tenant holding over after the expiration of his lease (2 E. S. 102, s. 29). The conviction of an undertenant of the lessee would not entitle the landlord to this remedy. "Where the tenancy is at will or by sufferance, it ' is terminated by a month's notice, in- writing,* and * Wherever there is a tenancy at will or by sufferance, created by the tenant holding over his term, or otherwise, the same may be terminated by the landlord's giving one month's notice, in writ- I ing, to the tenant, requiring him to remove therefrom (1 E. S. 745, 8. 1). Such notice shall be served by delivering the same to such tenant, or to some person of proper age residing on the premises ; or if the tenant cannot be found, and there be no such person resid- ing on the premises, such notice may be served by affixing the same on a conspicuous part of the premises, where it may be con- veniently read {id., s. 8). At the expiration of one month from the service of such notice, the landlord may re-enter, or maintain eject- ment, or proceed in the manner prescribed by law to remove such tenant, without any further or other notice to quit {id., s. 9). HOLDING OVEE, 41 the landlord cannot resort to this proceeding until (' such notice has been given (^ 8) and has expired. <^'' Seo. Y. — A.S to the holding over. — Not only must the term have expired, but the tenant must hold over and continue in possession of the de- mised premises, or some part thereof. The continu- ing in possession may be either by the tenant, or any one claiming through or under him as assignee, undertenant, servant, agent, or otherwise (Birdsall V. Phillips, 11 "Wend. 474 ; Wiggin v. "Woodruff, 16 Barb. 481). But there must be a continuing in possession of all or some part of .the demised premises, for, as the proceeding is only to recover possession, if the landlord already has possession there V70uld seem to be no occasion for a resort to this proceeding ; and, if the premises are deserted, then another kind of proceeding is the proper one, provided by another section of the statute* (see, * If any tenant, being in arrear for rent, shall desert the de- mised premises, and leave the same unoccupied and uncultivated, without any goods thereon subject to distress to satisfy the arrears of rent, any justice of the peace of the coimty may, at the request of the landlord, and upon due proof that the premises have been so deserted, leaving such rent in arrear and no goods thereon subject to distress, go upon and view the said premises, and, upon being satisfied upon such view that the premises have been so deserted, he shall affix a notice, in writing, upon » conspicuous part of the premises, requiring the tenant to appear and pay the rent due, at some time in the said notice specified, not less than five nor more than twenty days after the date thereof (2 E. S. 512, s. 24). At the time specified In such notice, the justice shall again view the 42 HOLDING OVER however, section 13, post). Where the landlord has possession of part of the demised premises, and the tenant, or those claiming through or under him, continue in possession of the remaining part, the landlord may proceed in respect to such re- maining part in the same manner as if the tenant, or those claiming through or under him, continued in possession of the whole. Sec. 8. — Without permission. — ^The holding over and continuing in possession must be with- out the permission of the landlord ; that is to say. premises. If the tenant appear and deny that any rent ia due to the landlord, all proceedings shall cease. If, upon such second -view, the tenant, or some one for him, shall not appear and pay the rent in arrear, and there shall not be sufficient distress on the premises to satisfy such rent, then such justice may put the landlord into possession of the said demised premises, and any demise of the said premises to such tenant shall, from thenceforth, become void (id, s. 25). An appeal from the proceedings of any justice in such case may be made by the tenant, at any time within three months after such possession delivered, to the county court of the county, by serv- ing notice, in writing, thereof, upon such justice, and by giving security, to be approved by such justice, to pay to the landlord aU costs of such appeal which may be adjudged against such tenant ; and thereupon such justice shall return the proceedings had before him to the said court, within ten days after such notice and security given, and shall give notice to the landlord of such appeal {id., o. 26). The county court shall examine the proceedings and hear the proofs and allegation of the parties in a summary way, and may order restitution to be made to such tenant, with costs to be paid by the landlord, or, in case of affirming such proceedings, may award costs against the tenant (id, s. 27), WITHOUT peemissioit; 43 fhe landlord must not, expressly or impliedly, have consented, either before or after the expiration of the term, to the tenant's continuing in possession after such expiration, nor have elected to accept the tenant for a new term, nor done or omitted to do any act from which such an election is neces- sarily or reasonably to be inferred. Thus, if, be- fore the expiration of the first term, the landlord demises the premises for a further term, the tenant, during such farther term, does not hold without per- mission of his landlord ; and if, after a term has ex- pired, the landlord accepts subsequently accruing rent, this necessarily implies his election to con- tinue the tenancy for a new term. A demand of the rent, whether by a simple demand or by pro- cess of law (an action), which accrued due contem- poraneously with the expiration of the term, does not, of itself, imply an election by the landlord to renew the tenancy, and, an action having been commenced for such rent, would not, it is sup- posed, prevent the landlord proceeding, pending such action, to recover possession. Nor would the pendency of a proceeding to recover possession bar his action to recover such rent. He is entitled to both his rent and the possession, and, if both are withheld, the two proceedings are necessary, and may be resorted to simultaneously or consecutively (see sec. 14, post). "When the remedy, by distraint of the tenant's goods, for non-payment of rent, existed, the levying a distress, even for rent due 44 PEOCEEDING FOE contemporaneously with the expiration of the term, was considered evidence of the landlord's election to continue the tenancy, because he could not have distrained unless the tenancy continued. The landlord remaining inactive and taking no meas- ures to evict his late tenant, may imply an election to allow the tenant to remain for a new term. What length of time in delaying to institute pro- ceedings will be construed as an implied election by the landlord to renew the tenancy, must depend upon the circumstances of each particular case. In one instance a delay of three months was held not to amount to an implied election to renew the term (Nichols V. Williams, 8 Cowen, 13). It is supposed that ordinarily a far less delay might be construed as a consent to the tenant's continuing in pos- session. Sec. 9. — Cases in which Icmdlord ina/y proceed for non-payment of rent. — To entitle a landlord to dispossess, for non-payment of rent, it must be — First. That rent has become due pursuant to the agreement under which the prem- ises are held. Seoondh/. That payment of such rent has been demanded after it became due. Thirdly. That default has been- made in payment of such rent, and that it re- mains unpaid. NOU-PATMBNT OF KENT. 45 FowrthVy. That the tenant holds over ; and, Fifthly. That such holding over is without the permission of the landlord. We will consider each of these requisites in detail. Sec. 10. — As to the rent heooming due. — ^Where the contract between the parties prescribes the day, but not the hour of the day, on which the rent is to be paid, the tenant has all the day named for pay- ment on which to pay ; the rent, therefore, for the purpose of proceedings vm,der this staPute (no hour being named), is not diie until midnight of the day for payment ; for other purposes, a different rule prevails (see Yan Kensselaer v. Jewett, 2 Corns. 141 ; Academy of Music v. Hackett, 2 Hilton, 21T). Of course the parties may prescribe the hov/r of the day on which the rent is to be paid ; in that case, the agreement of the parties governs, and the rent is due on or at the hour specified. Eent would never hecome due in the sense here intended, if in any sense, where, prior to the time for its payment, any circumstance has occurred which has released or discharged the tenant from his obligation to pay it ; in other words, if the ten- ant never became legally liable for the rent, it never hecame d/ae. There is a distinction between the case of rent never hecomi/ng due, and the case where, subsequently to its becoming due, it is satis- fied or the tenant has been discharged from his ob- 46 THE DEMAND ligatioiQ to pay. The latter case will come under consideration presently, in treating of the rent " re- maining unpaid." The rent must he rent due pursuant to the agreement (whether oral or in writing, express or implied) under which the premises are held at the time the proceeding is resorted to, so that, " if the tenant is holding under a new agreement with the landlord, he cannot be dispossessed under this stat- ute on the ground that he is in default in payment of rent under a prior agreement" (Burnett v. Scribner, 16 Barb. 625). Sec. 11. — The demand. — The demand may be either (1) simply a demand of the rent, or (2) three days' notice, in writing, requiring the payment of the rent or the possession of the premises. The landlord has his option as to which of these modes of making the demand he will adopt. Either is suffi- cient. It is not necessary to adopt both (Rogers v. Lynde, 14 "Wend. 172). The demand required in order to enforce a for- feiture had to be made upon the demised premises, of the exact sum due, before sun-set on the day it became due (Academy of Music v. Hackett, 2 Hil- ton, 217 ; Yan Kensselaer v. Jewett, 2 Coms. 141). It is presumed that these technicalities do not apply to a demand on which to predicate a proceeding to dispossess. For the purpose of such a proceed- ing it seems sufficient to make a demand after the OF THE EEHT. 47 rent becomes due, at any time (except on a Sunday) or place, of the precise amount due. The demand should, it is thought, be made personally upon the person owing the rent, or, if there be several per- sons as joint tenants or partners, who owe the rent, then personally upon one of those persons (Geis- ler V. Acosta, 5 Selden, 232); although it has been suggested that it would be sufficient, at least to confer jurisdiction, to make the demand upon the demised premises of " the tenant in possession " (Kogers v. Lynde, 14 "Wend. 1Y2) ; and the reason assigned is, that the tenant in possession may he liable for the rent as under-tenant. He ma/y he; and if he is, he is a proper person on whom to make the demand. But to make him an under-tenant, liable to the superior landlord, some special circumstance must exist ; for, as a general rule, in a case where there are landlord (superior landlord), tenant (mesne landlord), and under-tenant (tenant to mesne land- lord), the under-tenant does not owe any rent, on the original hiring, to the landlord (superior landlord) (McFarlan v. "Watson, 3 Coms. 286).* Perhaps, therefore, in such a case, a demand on the under- tenant would not be sufficient. "Where there are landlord (superior landlord), tenant (not mesne landlord), and assignee (tenant to superior land- lord), the assignee in possession does owe rent to the landlord, and in such a case a demand on the assignee would be sufficient. * But only for use and occupation, Moffat v. Smith, 4 Coms. 126. 48. THE DBMAITD In one case Brown, J., said, " The statute re- quires that a demand of such rent shall have been made," and it uses this expression in the sense in which it is used at the common law. * * * "Where there~ is a personal Covenant of the lessee for the payment of the rent, a demand of payment from him, personally, either upon the land or else- where, would doubtless be a good demand within^ the statute" (Woolcott v. Schenk, 16 How. 451). In that case the affidavit stated that " $350 was due and payable on the 24th of September instant ; that deponent on that day demanded said rent at the usual place of business of said Schenk (the ten- ant), in the town of Fishkill, of his agent, who in- formed deponent that said rent could not be paid ;" held that this affidavit did not disclose a demand such as the statute requires (*<^.). The demand should be of the exact amount due, nor more nor less. "Where the demand was, by a notice " to pay $486 for the rent of said, premises from 1st Nov., 1854, to 1st ISI'ov., 1859, with the interest thereon," it was objected that the demand was for too much, as it required interest. To this it was answered by the court : " Although the notice stated the amount of rent and the amount of interest thereon, yet the demand was only for the rent, and not for the interest," and overruled the objection (Griffin v. Clark, 33 Barb. 48). The person to make the demand is the person to whom the rent is due, or, if there be several per- OF THE KENT. 49 sons to wliotn tte rent is due jointly, then any one of Buch persons, who should demand the whole, and not his proportion of the rent (Griffin v. Clark, 33 Barb. 48). A demand, by one of several Jomi landlords, of his share only of the rent, would not be a good demand (id.), "Where there are several landlords who are not Joint landlords, the opposite rule prevails ; each should demand his share only (see Jones v. Felch, 3 Bosw. 63). The demand may in every case be made by an agent. If the demand is made by an agent, the tenant cannot insist on the production of his authority, but must pay, or refuse to pay, at the risk, that if the person making the demand is authorized to make it, and he refuses to pay, he will incur the costs of a proceeding to dispossess ; and if the person mak- ing the demand is not authorized, and he does pay, it may not discharge his obligation to his landlord. !Nor can the tenant insist upon it, as a condition of making payment of the rent, that the person mak- ing the demand shall give a receipt. Unless by agreement of the parties providing otherwise, the landlord may require to be paid in specie, and is not obliged to accept bills, or notes, or coin which would not constitute a legal tender. A tender means an unconditional offer to pay in specie made current by Act of Congress (Holmes v. Holmes, 12 Barb. 137 ; affirmed, 9 N. Y. 5 Selden, 626). The demand may be oral or in writing. If the S 50 DEMAND OF demand is not complied -with, the landlord is not obliged to allow any specified interval to elapse, but may, immediately thereafter, commence pro- ceedings to dispossess. The other mode of making the demand is by three days' notice, the requisites of which are, that it be (1) in writing, (2) must require payment of the rent or possession of /the premises, (3) must be by the person entitled to such rent, (4) on the person owing the same, (5) it must be served in like man- ner as a summons, (6) after the rent became due, and (Y) three days before commencing proceedings to dispossess. The person who may give the notice is the per- son entitled to the rent ; who he may be, is consid- ered, supra, in this section. The statute says the notice must be served by the person entitled to the rent (T[ 4) ; but this does not mean that the notice must be delivered personally by the person entitled to the rent (the landlord), but that the notice must be by him, *. e. subscribed by or on his behalf. The landlord may, if he please, serve thes notice himself; but he may employ any other person to do it. In the latter case, the person who delivers or serves the notice should be a person authorized to receive payment. The mode of service is the same as in case of a summons (see Service of Sum- mons, post). The three days which must elapse intermediate the service of the notice and the com- mencement of the proceedings are computed the THE KENT. 51 first day (the day on which the service is made) exclusive and the last day inclusive (The People v. ]Sr. Y. Cent. E. E., 28 Barb, 285) ; thus when a no- tice is served on the 20th, no proceedings can be had until the 24:th, and, in such a case, if the 23d should be a Sunday, probably no proceedings could be had until the 25th. In proceedings in actions when Sunday is the last day, it does not count (Code, s. 407) ; and, independently of this statute, such a rule seems universally to prevail (Campbell V. International Life Ass. Comp., 4 Bosw. 299 ; The People V. Luther, 1 "Wend. 42 ; Borst v. Griffin, 5 id. 84). "Where, therefore, the notice is served on a Thursday, proceedings should not be commenced until the following Tuesday. Where Sunday is an intervening day, as where the notice is served on a Friday, it counts as any other day. This may now be regarded as the settled practice of the courts (Easton v. Chamberlain, 3 How. 412; King v. Dow- dall, 2 Sand. 131), although there are decisions to the contrary ("Whipple v. Williams, 4 How. 28 ; and see 2 Hill, 375 ; Maxwell v. Phillips, 6 Ves. 146 ; Eose v. McGregor, 12 M. & W. 517). The person who makes the service should have a duplicate of the notice, and examine it with the one to be served. This duplicate should be pre- served, to facilitate the proof of service and the con- tents of the paper served. The service cannot be proved by affidavit. The demand, if controverted, 52 DEFAULT IN PAYMENT. should be proved by calling as a witness tbe person ■who made it. ■ Sec. 12. — The default in payment and the rent remaining unpaid. — There must not only have been a default in payment of the rent, but the rent must remain unpaid at the time the proceediag is com- menced. A default in payment is omitting to pay the rent, the whole rent, at the time it became due, or upon its being afterwards demanded. The omit- ting to pay any part of the rent, however small, is a default in payment. A tenant cannot be said-to be in default, for the purposes of these proceedings, where either the rent (1) had not become due when the proceeding was commenced, (2) has not been duly demanded, or (3) has been duly tendered. A tender duly made prevents the tenant being in default until a subsequent demand, if, after a ten- der to and refusal by the landlord, he subsequently demands payment ; if the rent is not paid on such subsequent demand the tenant is in default. "Where a tender is relied on as exempting the tenant from default, it should be stated, not only that he ten- dered the rent, but has always since been and still is ready to pay it ; and it is thought that at the time of putting in a counter affidavit, where the de- fence is a tender, the tenant should with his affida- vit tender the amount of rent due ; and if it is found the tenant duly tendered the rent, and was always ready to pay it, he is entitled to a decision in his favor. HOLDING OVER. 53 Sec. 13. — Holding over. — The holding over is a holding over after a default in payment of the rent, pursuant to the agreement under which the tenant is in possession, and not any other rent (Burnett v. Scribner, 16 Barb. 625, and sec. 10, cmte). Holding over is keeping the possession of the premises, whether occupied or not (see Bouvier's Law Diet., tit. Holding over). The provision as to dispossess- ing for holding over the term, and for holding over after a default in payment of rent, differ in this, that in the first case there must be a holding over and continuing in possession, while in the latter case a holding over only is mentioned (TfT 3, 4). That the Legislature intended to allow the proceeding for non-payment of rent to be taken where the tenant has abandoned the premises, seems apparent from their providing that the summons may be served, if no person is residing on the premises, by aflEixing a copy on a conspicuous part of the premises (T[ 9). The reason why this proceeding should be allowed where the premises are deserted, in the ease of non- payment of rent, and not in the case of holding over the term, seems to be, that in the latter case there is no occasion for any proceeding — the landlord has nothing to do but to enter, — ^but in the former case the landlord's entry would not (imless where there is a condition in the lease giving a right of re-entry) determine the tenancy. He may therefore resort to these proceedings in order to put an end to the ex- isting term (see sec. 6, ante, and T[ 20). 64 MAaiSTEATES WHO . The statute does not, in the case of a proceeding for non-payment of rent, provide for the case of a holding over of part of the demised premises, nor does it seem to be necessary. Sec. 14. — Without permission of the landlord. — What is said in section 8, ante, would, it is sup- posed, apply to a proceeding for non-payment of rent. And although it may not be so clear, in a proceeding for non-payment of rent as in a proceed- ing for holding over the term, that a landlord may sue for his rent and proceed to dispossess simulta- neously, yet there seems no reason why the land- lord should not be allowed such a privilege. Such a course on the part of a landlord might in some cases be, or seem to be, unduly oppressive, yet the tenant can always relieve himself by payment, in either proceeding, and a payment in either one of the proceedings would enable him to defeat the other. Sec. 15. — The magistrates who m.ay administer this remedy. — The magistrates empowered to dis- possess tenants for holding over their terms or for non-payment of rent are (^ 1), As to premises situate within the City of New York: The Mayor. The Recorder. The City Judge. The Justices of the Marine Court. The Justices of the District Courts. HiTE JURISDICTION. 55 As to premises situate within the City of Brooklyn : The City Judge. The Justices of the Peace. The County Judge of the County of Kings. As to premises situate within the City of Buffalo : The Recorder. The Justices of the Peace. The County Judge of the County of Erie. As to premises situate elsewhere than within the Cities of 'New York, Brooklyn, and Buffalo : Any Judge of the County Court of the county in which the premises are situate. Any Justice of the Peace of the city or town in which the premises are situate. The jurisdiction of the magistrate is determined by the situation of the premises, not by the resi- dence of the parties. The justices of the peace in the City of Brooklyn have jurisdiction over the entire city, and so of the justices of the peace in the City of Buffalo. Tlie jurisdiction of the county judge of Kings County extends over the whole county, and is not limited to the City of Brooklyn'; and a like remark applies to the county judge of Erie, whose jurisdiction is over the whole of that county. The justices of the District Courts in the City of 56 JUEISDICTION. New York have jurisdiction in proceedings to dis- possess over the entire city, without regard to the district in which the premises are situated, and the affidavits used in such proceedings may be taken before any officer authorized by law to take affida- vits. Laws 1870, ch. 741, p. 1832, s. 4. Code of Procedure, s. 66. Sec. 16. — How the magistrate acquires power to act. — The jurisdiction of the magistrates, enumer- ated in the preceding section, depends on the exist- ence of these facts : (1) that the premises are situate within the territorial jurisdiction of the magistrate, and (2) that the case is one of those mentioned in section 4, ante. If these facts do not exist, then, in one of the senses in which the word jurisdiction is used, the magistrate has no jurisdiction. But, in another sense of the word jurisdiction, the magis- trate has jurisdiction, if a landlord in due form represents to him that the facts exist, although in reality they do not exist. Now whenever these jurisdictional facts are controverted by the tenant, and their existence is not established on the trial, a . case is presented in which, within the first sense of the term jurisdiction, the magistrate had no juris- diction ; and yet he has in such a case the power (jurisdiction) to decide in favor of the tenant, and his decision is res adjudicata binding on the par- ties, and only to be questioned by certiorari or appeal (White v. Coatsworth, 2 Selden, 137). HOW ACQUIRED. 57 To avoid the confusion wliicli arises from this ambiguity in the term jurisdiction, we have substi- tuted for the second sense of that term the words, " power to act." The power of these magistrates to entertain the proceeding and to render a decision therein does not depend on the actual existence of the jurisdictional facts above, in this section re- ferred to, but on the fact that an oath in writing (an affidavit) is presented to him, duly sworn before and by the proper person, setting forth in due form those jurisdictional facts. On lihis being done the magis- trate has power to entertain an application for a summons and to issue a summons. The affidavit may be utterly false, but it protects the magistrate in all acts he may do on the assumption of its being true, until in proper form it is shown to him to be false. On the other hand, although all the ju^sdic-' tional facts do in truth exist, yet if these facts are| either not stated or insufficiently stated in the affi- davit, or if the affidavit is defective in any other respect, as not being sworn by or before the proper person, or the like, the magistrate never acquires the power to entertain the proceeding, and all his acts will be without jurisdiction, and neither he nor any one else is protected against the consequences of any act founded on such affidavit (see Broadhead V. McConnell, 3 Barb. 176). From this it will be observed that the form of the affidavit should receive the strictest attention in its preparation. 8* 68 THE AFFIDAVIT. Sec. 1Y. — Ths affidmit. — The facts to be averred in an affidavit on a proceeding for holding over the term will of course differ from the facts to be averred in an affidavit on a proceeding for non- payment of rent, but there are certain matters which are common to the affidavit in both cases. "We propose, therefore, first, to consider those mat- ters"which are common to the affidavit in both cases, and then consider the particular requirements of the affidavit in each kind of proceeding. Sec. 18. — Of the matters which are comim/m, to the affidamt in ioth cases. — The matters common to both affidavits are : 1. The venue. 2. The deponent. 3. The description of the deponent. 4. The letting and the terms thereof. 5. The description of the premises. 6. The holding over without permission. Y. The names of the parties proceeded against. 8. The subscription and jurat. 9. The statement of facts. 10. Affidavit not evidence. 11. Affidavit cannot be twice used. 12. Affidavit should be used promptly. Sec. 19. — The venue. — ^Every affidavit should state the place at which it is sworn ; this is called the venue. It is an essential part of the affidavit, THE AJ?FIDAVIT. 59 without wMcli the' affidavit cannot be used (1 Barb. Ch. Pra. 601 ; Lane v. Morse, 6 How. 394 ; Cook V. Staats, 18 Barb. 408). The venue is prima facie evidence of the place at which the affidavit is sworn. It is usual to state the venue at the commencement of the affidavit ; but this is not essential, for the place at which it is sworn may be stated in the jurat, as is the practice in the English courts. Perhaps it would be a sufficient statement of venue if the offi- cer who administered the oath wrote the name of the place at which sworn after his name (Lane v. Morse, 6 How. 394). "Where the affidavit had no venue, but the commissioner added, after his name, " commissioner of deeds for the City of Buffalo," it was held not to amount to a statement of venue (Cook V. Staats, 18 Barb. 408). Seo. 20. — The deponent, or the proper person toi make the affida/oit. — ^The proper person to make the affidavit is the landlord, or his agent. The statute , says it must be made by the landlord or lessor, his ' legal representatives, agents, or assigns (1" 6). This means only the landlord, or his agent, for the lessor j must be the landlord, or he cannot make the affida- vit ; and a man ceases to be lessor when his interest ^ is vested in his assigns or legal representatives. In the case of several landlords who are partners ■ or joint tenants, the affidavit may be made by one on behalf of all, or by an agent for all. In the case of several landlords who are not joint 60 THE AFFIDAVIT. tenants or partners, but tenants in common, the affi- davit must be by all the landlords, or one may act for himself and as agent for the other or others of them. That is to say, each must act in person, or by agent. This may, however, be affected by the terms of the hiring and letting. If tenants in com- mon make a joint demise, they are joint landlords ; and the like rule applies to them as to partners and joint tenants. Where the landlord is a married woman (the premises being her separate estate), the affidavit may be made by her, or by an agent for her. She has authority to appoint an agent for such a pur- pose, and, semhle, she may appoint her husband as such agent. . Sec. 21. — Description of the deponent. — ^The ' affiant, or deponent, is the person making the affi- davit, and he should state explicitly whether he is Nlandlord or agent for the landlord. It is not suffi- Icient to say A. B., landlord, or as landlord ; or A. (T B., agent for the landlord, or as agent ; but he must say A. B. makes oath and says he is landlord, &e. ; or A. B. makes oath and says he is agent for X. Y., who is landlord (Ex-parte Bank of Monroe, 7 Hill, 17Y; Cunningham «. Goelet, 4 Denio, 11; The \ People v. Perrin, 1 How. 76 ; Ex parte Aldrich, 1 iDenio, 662). Where the affidavit is made by an agent, he need not state any reason for its being made by him in- THE AFFIDAVIT. 61 stead of by the landlord (Simpson v. Kliinelander, 20 "Wend. 103). An affidavit "whicli stated that the estate of Samuel Worsworthy, deceased, " is landlord of the premises, and that the deponent is agent of said landlord in respect of said premises," was held suffi- cient to give the magistrate power to act. The allegation that the estate was landlord was not de- nied, and the court said it must be taken as ad- mitted that the estate was landlord ; and by the estate, &c., might be meant a corporation, an in- dividual, or an association, acting under that name (Estate of ISTorsworthy v. Bryan, 33 Barb. 154 ; on the effect of the words, " the estate of," see Piatt v. Stewart, 8 Barb. 501). Sec. 22. — The letting, and the terms thereof. — The affidavit must also set forth the original letting, the date of it, by whom, to whom, the length of term, the commencement of the term, the amount of rent, and how and when payable. Enough, in fact, to show that the tenancy is one of those men- tioned in the statute (T[ 1) ; and, particularly in the case of a holding over the term, must the affida- vit show whether or not the tenancy is at will or at sufferance (T[ 8, and see sec. 31, post). If the letting was by deed, or agreement in writing, the affidavit should state which, and give the date of the instru- ment, the parties to it, and the particulars as to the length of term and as to the rent. 62 THE AJTIDAVrr. If, since the original letting, there has been any alteration in the relation of the parties by assign- ment or by death, it should be stated, so as to show how the parties to the proceeding came to occupy the relation of landlord and tenant or under-tenant. And, in making this statement, the facts should be stated, and not the inferences of the parties. Thus, where the original landlord was deceased, and his widow claimed to have been landlord, the affidavit, instead of stating the facts by which she became the landlord, stated the death of the landlord, and that, after his death, his widow 'became legally pos- sessed of the lease, the affidavit was held to be in- sufficient (Hill V. Stocking, 6 Hill, SIT). "When the affidavit stated in effect that B., as tenant, was indebted to deponent ; that deponent and one M., as trustees of the estate of J. Gr., de- ceased, leased the premises to H. ; that said M. has since deceased, and deponent " now owns said premises, and holds said lease as sole trustee of said estate," &c., this was held sufficient to show that deponent was the landlord (Thresher v. Keteltas, 2 How. 63). Sec. 23. — Description of the premises. — ^Where the letting was by a written instrument, it is better to insert in the affidavit the description as contained in such instrument. In every case, the description must be such as shows the premises to be within the territorial jurisdiction of the magistrate, and THE APFIDAVIT. 63 should be sufficiently specific to enable tbe officer to know witb certainty the premises intended, so that, from such description, possession of the prem- ises claimed may be delivered (see 2 E. S. 304, s. 8). Where the premises consist of an entire house in a city, the name of the street and the number of the house should be given ; and, if the premises are part only of a house, it should state what part. Where the description was "a certain house and lot, situate in the village of Penn Yan," it was held insufficient (Campbell v. Mallory, 22 How. 184). Sec. 24. — Holding over without permission. — It must be stated in the affidavit that the tenant holds over without permission of the landlord. Where an affidavit stated, by mistake, that the tenant held over with the permission of his landlord, instead of without the permission, &c., it was said that prob- ably it did not confer jurisdiction (Cook v. Staats, 18 Barb. 408 ; and see a dictum of Bonney, J., in Norsworthy's Estate v. Bryan, 33 Barb. 155). And where the proceeding is for holding over the term, the affidavit must show, not only a hold- ing over, but that the parties proceeded against, or at least some of them, continue in the occupation of the demised premises, or some part thereof, without the permission of the landlord ; and if of a part thereof, the affidavit should clearly describe which part is BO held over and occupied. Sec. 25. — Stating names, (&a., of parties pro- ceeded agamst. — The statute not giving any author- 64 THE AITIDAVIT. ity to proceed against parties as unknown, or against parties by fictitious names, this mode of procedure cannot be pursued (McCabe v. Doe, 2 E. D. Smith's Eep. 64: ; Ee Flatbush Avenue, 1 Barb. 286). Nor can the magistrate obtain any jurisdiction over any other persons than those designated by name. And, in describing the parties proceeded against, the re- lation of each as tenant, assignee, or under-tenant, should be stated, in order that it may appear on the face of the proceedings that they are within the description of persons whose removal is authorized by the statute (^ 1, and see "Wiggin v. "Woodruff, 16 Barb. 474). Where the affidavit stated that W., the tenant, or his assigns, or those claiming under him or them, held over, and it appeared that W. was not in possession of the premises, but that H. was, who was served with the summons, held that no jurisdiction was acquired against H. (Hill V. Stocking, 6 Hill, 317). , Sec. 26. — Before whom the affidavit is to be sworn, its svbsGrvpiMn, &c. — ^The statute does not give any authority to the magistrate to swear the affidavit, nor does it state before whom the affidavit is to be sworn. There is a general statutory provi- sion providing before whom oaths, not required to be taken before any particular officer, may be taken.* * Whenever any oath or affidavit is or may be required or authorized by law, in any cause, matter, or proceeding (except oaths to jurors and witnesses in the trial of a cause, oaths of office, and such other oaths as are required by law to be taken before par- THE AFFIDAVIT. 65 That statute applies to the affidavit now being con- sidered. Unless the magistrate to whom applica- tioular officers), the same may be taken before any judge of any court of record, any [justice of the peace, in towns,] commissioner of deeds, [notary public, 1859, eh. 360,] or clerk of any court of rec- ord, and, when certified by any such officer to have been taken before him, may be read and used in any court of law or equity, of record or not of record, within this State, and before any officer, judicial, executive, or administrative, before whom any such cause, matter, or proceeding may be pending ; and affidavits to be read in the Supreme Court may also be taken by any commissioner ap- pointed for that purpose by the justices of the said court (2 R. S. 284, s. 49). The Revised Statutes provides for the mode of administering oaths : " The usual mode of administering oath now practiced, by the person who swears laying his hand upon and kissing the Gos- pels, shall be observed in all cases in which an oath may be admin- istered according to law, except in the cases hereinafter otherwise provided (2 R. S. 407, s. 82). Every person who shall desire it shall be permitted to swear in the following form : ' You do swear, in the presence of the ever living God ;' and While so swearing such person may or may not hold up his hand, in his discretion {id. 83). Every person who shall declare that he has conscientious scruples against taking any oath, or swearing in any form, shall be per- mitted to make his solemn declaration or affirmation in the follow- ing form: 'You do solemnly, sincerely, and truly declare and affirm ' {id. a. 84). Whenever the court before which any person shall be oifered as a witness shall be satisfied that such person has any peculiar mode of swearing connected with or in addition to the laying of his hand upon the Gospels and kissing the same, which is more solemn and obligatory in the opinion of such person, the court may, in its discretion, adopt such mode of swearing such per- son {id. s. 85). Every person believing in any other than the Christian Religion shall be sworn according to the peculiar cere- monies of his religion, if there be any such ceremonies, instead of any of the modes hereinbefore prescribed {id. s. 86 ; 3 Barb. Ch. Rep. 590)." 66 THE AFFIDAVIT. tion is made is one of the officers empowered to take oatli by that general provision, the affidavit cannot be made before him. The person making the affidavit should subscribe his name or mark to it (Hathaway v. Scott, 11 Paige, 173 ; but see Huff V. Spicer, 3 Gaines, 190 ; Jacl^on v. Virgil, 3 Johns. 540). The officer before whom the affidavit is sworn should subscribe his name, and the n^me of his office. This subscription and a statement of the date on which the oath was taken is called the jurat. A paper purporting to be an affidavit, but not subscribed by any officer authorized to admin- ister an oath, is not an affidavit (Ladow v. Groom, 1 Denio, 429 ; and see Davis v. Kich, 2 How, 86 ; Sandland v. Adams, id. 127 ; Snyder v. Olmstead, id. 181). The affidavit may be made out of the State, if duly authenticated, as required (2 K. S. 396) ; and as to the form of the authentication, see the statute, and Belden v. Devoe, 12 "Wend. 223 ; Manuf. Bank v. Oowden, 3 Hill, 461 ; Hatcher «. Eocheleau, 18 N. Y. 86. Sec. 27. — Statement of facts. — ^The affidavit should state facts, and not the evidence of facts. That it is not to state matters or inferences of law, but facts (Hill v. Stocking, 6 Hill, 317 ; Simpson v. Ehinelander, 20 "Wend. 103). It should state a plain case, and allege facts enough to give jurisdic- tion {id.; Hallenbeck v. Garner, 20 Wend. 23). THE AFFIDAVIT. 67 But if the affidavit contain such, facts as will enable the magistrate to infer, argumentatively and upon just rules of construction, a substantial case, it is sufficient (Anderson v. Prindle, 19 Wend. 396). Seo. 28. — Affidavit is not evidence. — ^The affidavit cannot be used as evidence on the trial of any fact controverted by the tenant (Anderson v. Prindle, 19 Wend. 395 ; Birdsall v. Phillips, 17 id. iSi). Sec. 29. — Affidavit cannot le twice used. — The affidavit cannot be used twice. An affidavit used in one proceeding cannot be used as the basis of an- other or new proceeding (McCoy v. Hide, 8 Cow. 68) ; thus, where, after a decision in favor of the ten- ant, the landlord obtained a new summons on the affidavit on which the first summons issued, it was held that the proceedings were thereby rendered void {id. ; and see Cutler v. Biggs, 2 Hill, 409 ; Bel- den V. Devoe, 12 Wend. 228 ; Robinson v. Sinclair, 1 How. 106; Popham «. Baker, id. 166; Colgate V. Marsh, 2 id. 137 ; and, to the contrary effect, see Colver V. Van Yalen, 6 id. 102, and cases there cited). Semble, that if the affidavit were re-sworn it would be a new affidavit. Sec. SO.^Affidavit should be used promptly/. — There should not be a long interval between the making the affidaAdt and the application for the summons, for in the meantime the circumstances of the case may be changed. This is a general rule : Oa THE AITTOAYIT. thus, in case of hateas corpus, the affidavit on which the writ issued was sworn on the 13th of Septem- ber, and the writ was not issued until the 16th, — ^the court said an affidavit of a later date should have been produced (The People v. Burtnett, 13 Abb. 9, and see Brian v. Casey, 2 Abb. 416).. Seo. 31. — Of the affidavit on a prooeedmg for i holdmg over. — The affidavit on a proceeding against a tenant for holding over his term, besides compli- ance with the preceding sections in the matter of the venue, the deponent and his description, the terms of the letting, the description of the premises, the hold- ing over and continuing in possession, the absence of pei'mission, the names of the parties proceeded against, the jurat and the subscription, &c. (see sec- tions lY to 30, ante), must also show that the term has expired. Sec. 32. — The expiration of the term. — Except in the cases of a tenancy at will or at sufferance, it is sufficient to say, in general terms, that the tenant holds over after the expiration of his term, because the fact of the expiration of the term will appear from the conditions of the letting ; but in the case of a tenancy at will or at sufferance the affidavit must show that the tenancy has been terminated by notice, as prescribed by law (1[ 8, and see sec. 5, anti). THE AFFIDAVIT. 69 Sec. 33. — Of the affida/oit on a proceeding for non-payment of rent. — ^The affidavit on a proceeding for non-payment of rent, besides compliance with the preceding sections in the matter of the venue, the deponent and his description, the terms of the letting, the description of the premises, the holding over, the absence of permission, the names of the parties proceeded against, the jurat and the sub- scription, &c. (see sections 17 to 30, ante), must also show (1) how and when the rent became due, the amount, and the amount remaining due, and (2) a demand of the rent. Sec. 34. — Huw and when the rent heca/rae due, and the anunmt. — ^The affidavit should state the day on which the rent became due, and whether it is a month's rent, a quarter's rent, or two months' rent, as the case may be, and should also specify the amount claimed to be due (Oakley v. Schoonmaker, 15 "Wend. 226). The amount due will be presumed to continue due, if nothing is stated respecting it ; and where a portion of the rent has been paid, it is proper to state the fact of such payment and the amount paid. This seems necessary to inform the tenant and the magistrate of the amount demanded, so that, if the tenant desires to prevent the issuing of a warrant by payment of the rent, he may know how much to pay, and the magistrate how much to receive. 70 THE AFFIDAVIT. Sec. 35. — Statement of demcmd. — It seems that a statement, in general terms, that the rent has been demanded of the tenant, na/nwng hi/m, since the rent became due, will be sufficient, whether the demand was by a demand simplj or by a three-days' notice. It is not necessary to state the day when, the place where, nor the person by whom, the demand was made ; but the affidavit must name the person of whom the rent is demanded (Rogers v. Lynda, 14: "Wend. 172), although perhaps an averment that the demand was made upon the demised premises would be sufficient to confer jurisdiction ; and a proceeding based on such an affidavit could not be attached collaterally, or otherwise than by appeal or certiorari (id.), as a demand on one of several, who are jointly liable, is in law a demand upon all ; where the demand was on a joint tenant the affidavit may properly aver a demand on both (Geisler v. Acosta, 6 Selden, 236). It need not, however, go further than to allege the fact — ^the demand on one of the parties. , Peooeedings on Affidavpt. Sec. 36.^ — Request of summons. — On presenta- tion of an affidavit in due form, with a request of a summons, and tender of fees to an officer having jurisdiction, such officer is bound to issue a sum- mons. The request need not be in writing, although sometimes made in writing. The presentation of THE SUMMONS. 71 the affidavit is in itself a request, as tlie presentation can be for no other purpose than to obtain a sum- mons. An officer who improperly refuses to comply with the request for a summons, may be compelled to issue a summons by mandamus out of the Su- preme Court ; but we are not aware of any instance having occurred in which a resort to this compul- sory proceeding became necessary. Properly the affidavit should remain in the cus- tody of the magistrate who issued the summons, so that the tenant may inspect it before the return day. The affidavit is often, however, printed on the same sheet with the summons, and delivered back to the applicant with the summons. It is not necessary to serve a copy of the affida- vit with the summons. Sec. 37. — The sum/mons. — The only material dif- ference between the form of the summons in a pro- ceeding for holding over and a proceeding for non- payment of rent, is in regard to the time within which it must be made returnable. Except in this one respect, the description of the requisites of a summons will serve for a proceeding in either case. This summons is process ; it must therefore be in the name of The People of the State (2 E. S. 276, s. 8) ; must be in the English language, except technical words ; made on paper or parchment, in a fair, legible character, in words at length and not abbreviated, except such abbreviations as are com- 72 THE SUMMONS. monly used in the English language, and except that numbers may be expressed by Arabic figures or Eoman numerals (*c?. s. 9). The summons must be subscribed by the officer issuing it, who should, it is thought, describe him- self, so as to show on the face of the summons that he is one of the magistrates on whom jurisdiction is conferred to issue it ; and it should, it is thought, also show the place where issued, in order that it may appear that it issued within the territorial jurisdiction of such magistrate. It need not neces- sarily be dated, but it is usual and proper to date it of the day on which it issues. It need not be sealed (Laws 18ir, ch. 280, s. 57). The summons must describe the premises of which possession is claimed with the same cer- tainty as is required of the description in the affida- vit {a/nte, p. 62). The better plan is to make the description in the summons identical with that in the affidavit, but this is not essentially necessary (Cainpbell v. Mallory, 22 How. 187). The summons is usually directed to the persons named in the affidavit as tenants, assignees, under- tenants, or occupiers, " and to any other person in the possession of the premises hereinafter described, or claiming the possession thereof," and then in the body of the summons it is said, " You are required forthwith to remove," &c. The statute prescribes that the summons shall require " any person in the possession of the said premises, or claiming the pos- THE SUMMONS. 73 session thereof, fortliwith to remove from the same or to show cause," &c. (T[ 7). But as the service is to be by delivery " to the tenant to whom it shall be directed" (T[ 9), it would seem that the statute does contemplate a direction in -the summons to some person hy name / and probably the usual mode of directing the summons and requiring the parties to remove is as good an one as can be devised. " The summons should' have been directed to the tenant by name," say the Court in Deuel v. Eust, 24 Barb. 439; and see Hill v. Stocking, 6 Hill, 316; Hallen- beck V. Garner, 20 "Wend. 23. The necessity for inserting the name is supposed to be this : the mag- istrate obtains the right to act only as against the persons named in the affidavit ; and only the per- sons named in the affidavit can be named in the summons. Thus, where the. affidavit that W. or his assigns, or those claiming under him or them, held over, and it appeared that a part of the premises were not in the possession of W., but of H., who was not named in the affidavit or summons, it was held that as to H. the proceedings were void, and gave no right to temove him (Hill v. Stocking, 6 Hill, 317 *). In this case it does not appear that H. * As it is supposed the magistrate does or can only acquire juris- diction of the persons mentioned by name in the summons, tenants often contrive to embarrass their landlords by making secret assign- ments ; so that when a landlord has obtained a warrant to dispossess, he finds the theretofore Unknown assignee in possession, and he, not 4 74: THE SUMMONS. was in possession tinder W. It appeared that H. claimed a part of the premises, but it did not appear how he claimed ; and although the summons was directed to " any person claiming possession," yet it required only those "claiming under "W." to re- move, &c. The time and place for showing cause must be stated, and the place must be within the territoriar jurisdiction of the magistrate. The time for show- ing cause differs according as the proceeding is for holding over or for non-payment of rent. If for holding over, the summons may be returnable either on the same day or on a day not less than three nor more than five days after it issues. If the proceed- ing be for non-payment of rent, then the summons can only be returnable not less than three nor more than five days. The summons cannot be made re- turnable a greater or less number of days than is above mentioned ; a departure from the direction of the statute in this respect would render the pro- ceedings void, nor would the appearancee of the tenant, even without objection, cure the defect. The mode of computing the time for the return is the same as in the case of a demand (see ante, p. 50). being one of the parties proceeded against, cannot be evicted; the landlord, on proceeding against such assignee, finds perhaps tlie same device has been resorted to for defeating him, and another assignee appears. SEEVICE OF SUMMONS. 76 It is not specifically required by the statute, but it is necessary, on general principles, that the sum- mons should state the facts which confer on the magistrate the right to issue it. This is usually and properly done by a recital in the summons of the affidavit on which it issued. Sec. 38. — Service of the summons. — ^The service of the summons may be considered iinder the heads of (1) the time of service, (2) the manner and place of service, (3) on whom service is to be made, (4) by whom service may be made, and (5) proof of service. Sec. 39. — Time of Service.' — -The statute does not prescribe bow long before the return the summons must be served. " In the case of a summons return- able the same day, it should properly be served suf- ficiently long before the hour for showing cause to giving the tenant time to appear ; but unless the magistrate takes the pains to insist upon this being done, there is no protection to the tenant against surprise, nor means of remedy. A summons is served by affixing a copy on the premises, or by leaving at his residence during bis absence, and be- fore a knowledge of it reaches him, the time for showing cause has passed ; and provided only that the proceedings are regular on the face, whatever rights he had are for ever lost. 76 SEEVICE OF In the case of a summons returnable in not less than three days, the general understanding is, the statute being silent on the subject, that the service must be not less than three days before the return ; the time being computed as in the case of a de- mand of possession. (See ante, p. 50.) The summons is not within the statute (Laws 1847, ch. 349) forbidding process from a justices court to be served or made retAirndble in certain cases on a Saturday (see Marts v. Wilson, 11 Abb. 88). But the summons \>Q\wg process, it cannot he served on a Sunday (Field v. Park, 20 Johns. 140 ; and see cases cited 8 Barb. 387) ;nor on an elector on an election day (1 R. S. 127, s. 4 ; Meekes v. Noxon, 1 Abb. 230 ; S. C, 11 How. 189 ; Hastings v. Farmer, 4 Coms. 296 ; Bierce v. Smith, 2 Abb. 411*) ; nor on an elec- tor on the day of a town meeting (1 K. S. 342, s. 10). Subject to the above exception, it seems the summons may be served at any hour of the day or night (Prid- * Laws 1842, ch. 130, provide: Whenever an election shall be held in any city or town pursuant to this chapter, no civil process shall be served on any elector entitled to vote in such city or town on the day on which such election shall be held. There ^ a similar provision in the charter of New York, forbidding service of process on an elector on the day of a charter election. The general statute has been supposed not to apply to a charter election, and the pro- vision of the New York charter not to extend to the service of an injunction or a subpoena. (Wheeler v. Bartlett, 1 Edw. Ch. R. 323 ; but see what is said of that case in Meeks «. Noxon, 1 Abb. 280 • 11 How. 189; and see Ee Election Laws, 7 Hill, 194.) THE BTJMMONB. TY dee V. Cooper, 1 Bing. QQ ; Upton v. McKenzie, 1 " D. & E. 172,- Wejburn v. Neale, 2 Burf. 813). Seo. 40. — Mcmner andplaoe of service. — The man- ner of service is prescribed by the statute. The ser- vice must be either personal or "by copy. 1. Personal. — By delivery to each of the ten- ants or persons to whom the summons is directed, or to such of them as can be found at a place within the territorial ju- risdiction of the magistrate who issued it (see Litchfield v. Burwell, 5 How. 341 ; 1 Code Kep. N. S. 42 ; Morrell v. Kim- ball, 4 Abb. 352 ; Fiske v. Anderson, 12 id. 8) a true copy thereof, at the same time showing to the person so served the original summons. 2. By copy. — If all or any of the tenants or persons to whom the summons is di- rected cannot be found within the juris- diction so as to be personally served (and they are considered as not to be found when they are absent from: their last or usual place of residence at the time the service is sought to be effected), then service of the summons may be made as to each of such persons by leaving a copy of the summons at his last or usual place of residence, with some person of 78 SEEVICE 0¥ maPure age residing at such his last or Tisiial place of residence ;* or, If at the time service is sought to be effected there be no person of mature age residing at the last or usual place of res- idence of the person to be served, then service may be made as to such person by affixing a copy of the summons on a conspicuous part of the demised prem- ises. Where the party to be served is an in- surance or other corporation created by the laws of- any other state or country, the service must be as prescribed by Laws of 1855, ch. 279. Sec. 41. — On whom service is to he made. — The summons should be served on all to vrhom it is di- rected iy name / and from the ease with which ser- vice can be effected, there can scarcely be any rea- son why all cannot be served. Certainly, of those to whom the summons is directed by name, only those served can be further proceeded against. In the *By the words "laat place of abode," I understand the place of abode the party then has. Ex parte Rice Jones, 15 London Law Jurist, 142. In this case, the party to be served lived at A. ; the pro- cess was served at B., where he had previously resided. Held, that it was not served at his last place of abode — ^in effect saying that last means present, if any. THE SUMMONS. 79 case of a proeeeding against a tenant and his under- tenants, it would seem that the tenant must be served, or the proceedings cannot be sustained against the under-tenants (Ee Glenn, 1 Hqw. 213). This seems but reasonable. On the other hand, where the tenant is served, the non-service on the under-tenants seerns to afford no reason against continuing as to the . tenant. Sec. 42. — By whom service may he rnade. — The summons may be served by any one, a constable or a private person, not being the landlord or actual applicant for the summons. There is no prohibition in the statute against the applicant himself serving the summons, but as a general rule, a party is not permitted to serve tlie process in proceedings to which he is a party, and it is better that he should not. Sec. 43. — Proof of service and rehirn. — ^The stat- ute is silent as to the proof of service, except that it requires " due proof of service to be made ;" and the question arises, What is " due proof" ? Probably where the service is by a private person, his affidavit of the service would be considered "due proof;"* * Proof ia any thing wMbh serves either immediately or medi- ately to convince the mind of the truth or falsehood of a propo- sition. (BurriU Law Diet., Proof.) An affidavit of a judgment cred- itor is proof of the return of an execution in supplementary pro- 80 PROOF OF and where the service is by the sheriff, or a con- stable, his retui'n signed by him (his certificate), would be considered due proof (2 E. S. 440, s. 77). Where the tenant or other person to whom the sum- mons is directed appears and shows cause, perhaps, as to the persons appearing, no proof of service is necessary. The safer course is to make proof of the service in all cases, so that it may appear on the face of the proceedings that in fact due service was made. Besides this, the summons ought to be returned to the magistrate who issued it before the return day, and before it can be known whether or not any cause will be shown, and when returned, the proof of ser- vice should be returned with it. The certificate or affidavit of service should be indorsed upon or annexed to the summons ; or if this is not done, it should give such^a description of the summons served as to clearly identify it as the summons in the proceeding then pending. This may be done by annexing a copy of the summons to ceedings. (Conway v. Hitohmgg, 9 Barb. 3'78.) Proof of loss in insurance policies means only reasonable evidence. (Child v. Sun Mut. Ins. Co., 3 Sand. 26.) But when a statute requires "proof" to be made, it means legal evidence. (Buffalo & State Line R. R. Co. V. Reynolds, 6 How. 98 ; Brown v. Blinchman, 9 Johns. 75 ; Ter- ry V. Fargo, 10 How. 114; Steenburg v. Hartz, id. 16t.) In Omerod V. Chadwiok, 16 Law Jour. Rep. N. S. 144, M. C, the phrase "duly proved" was held to mean " proved on oath." An affidavit of be- liefis not proof. (Kingsland v. Cowman, 5 Hill, 610; and see Broadhead v. MoConnell, 3 Barb. 191.) SERVICE OF SUMMONS. 81 the certificate or affidavit of service. (See Litchfield V. Burwell, 5 How. 341; 1 Code Eep. N. S. 42.) Where the service is personal, the certificate or affidavit should distinctly state the delivery to, and leaving with the party served, of a copy of the sum- mons, and that the original summons was at the time of service shown to the party served ; and also state the day of service, and the place where served, and probably where the service is by any other person than a sheriff or constable, the affidavit should add that the deponent knew the person so served to be the individual described in the summons by the name of [adding the name]. Where the service is by leaving a copy at the res- idence, the tertificate or affidavit should state that a copy of the summons was left at a certain place (describing it), with a person of mature age residing at the place so described ; that the place so described is the last or usual (stating one or the other, and not saying last or usual) place of residence of the per- son to be served, and that at the time of the-fiervice he was absent from said place. Where the place of service is described as the last place of residence, it should, it is thought, be added, that the party to be served has no other hnown place of residence, and this may be done by describing the place of service as the last known place of residence of such party. It is not ordinarily required tliat any further de- scription of the person with whom the copy was left should be given, other than that he or she was 4* 82 SUBSEQUENT TO a person of mature age residing on the premises. But it might not be sufficient to say that the person with wliom the copy was left was, as deponent was informed, or as he believes, a person of mature age residing on the premises. Where the proof of serv- ice stated that a copy of the summons was served on J. R., residing on the demised premises, D. D. C, the tenant, being absent, it was held insufficient, as not showing the absence of D. D. C. from his last or usual place of residence, and for not showing that E., the person served, was a person of mature age. (Cameron v. McDonald, 1 Hill, 512.) "Where tlie service is by affixing a copy of the summons on the demised premises, the certificate or affidavit should state the fact of such affixing, that it was on a conspicuous part of the premises, and the day on which it was affixed. The magistrate might well require it to be stated that the party who affixed the copy summons, left it so affixed. It need not however be shown how long it continued affixed. It should also state that at the time the copy summons was so affixed, the party to be served was absent from his last or usual place of residence, stating where such residence was or is, and that no person of mature age was at said time residing at such residence. Sec. 4:i. — Duty of under-tenants served with sum- tnons. — An under-tenant served with the summons should forthwith deliver it to his immediate land- THE SEEVICE. 83 lord; it being provided by statute that, "Every tenant to whom * * any process * * * to recover the land occupied by him or the possession thereof shall be served, shall forthwith give notice thereof to "his landlord, under a penalty of three years' rent." (See 1 K. S. 748, s. 27.) > Seo. 45. — Proceedings on return day of summons: — The proceedings on the return day vary according to whether or not any one appears to show cause, and whether the proceeding is before a justice of the peace, a justice of a district court in the city of ISTew York, or before any other magistrate having power to entertain it. Seo. 46. — Tenant removing. — If before the return day named in the summons, the tenant removes from- the demised premises, perhaps the landlord cannot proceed further, as the recLuirement of the summons is to remove or show cause;'' not to do both. The tenant may remove without surrendering the pos- session, and if such a removal prevents further pro- ceedings, the landlord may be compelled to resort to a proceeding as upon a desertion of the premises (see ante, p. 41, and note). The landlord will ordin- arily desire to proceed and obtain a warrant in order to determine the tenancy. Seo. 47. — Time for showing cause. — If the pro- ceeding is before a justice of the peace, it has been said that the parties summoned have one hour, after 84 PEOCEEDINGS ON the hour mentioned in the summons, within which to appear and show cause, in the same manner as on the return to a summons in a civil action before a justice of the peace (Deuel v. Eust, 24 Barb. 440). This dictum, however, is not universally followed ; we know that many justices of the peace do not wait the hour. Certainly, where the proceeding is before any other magistrate, the party summoned must appear and be ready to show cause at the time mentioned in the summons, as there is no power in the magistrate to adjourn the proceeding until after what is known as a counter-aflBdavit has been filed. Peoceedings on Eetuen Day, wheee no one APPEARS TO Show Cause. Sec. 48. — Issuing Warrant. — If, on the return day of the summons, at the time and place appointed, no one appears to show cause, or, appearing, does not show su£&cient cause, and there is due proof of the service of the summons, and the rent is not paid or secured, and the proceeding has not been stayed, the magistrate who issued the summons, or, if the summons was issued by a justice of a district court in New Tork city, then the justice who issued the summons, or any other of said jnstices acting for him (Laws 1857, ch. 344, s. 78, and see post, sec. 72), may thereupon issue his warrant to put the applicant into full possession of the premises. The form of the warrant is considered, Section 81, post; and as to staying the issuing the warrant, see post. I EETOBN OF SUMMONS. 85 Sec. 49. — Further effect of non-ajppearance. — The parties served with the summons who do not appear to show cause, tacitly admit the trutk of all the al- legations in the applicant's affidavit, and cannot afterwards controvert them. (McGuire v. Ulrich, 2 Abb. 28.) Peoceedings on Ketuen Day, whkeb three is an Appeaeance to Show Cause. Sec. 60. — Who may show cause. — Any person in possession of the demised premises, and any person claiming possession thereof, which is equivalent to a general license to any person who so pleases, may show cause why a warrant should not issue. Sec 51. — How cause may he shown. — Cause is shown by appearing at the time and place named in the summons for showing cause, and stating " pre- liminary objections," or filing a counter-affidavit, or both, Seo. 52. — Preliminary directions. — "What are termed preliminary objections, are objections to supposed defects in the form and manner of the landlord's proceedings, as, that the affidavit on which the summons issued does not state all the facts ne- cessary to confer jurisdiction, or is defective in form or otherwise, or that the summons is defective in form, or was not properly served, or that the proof of service is defective, or as the case may be. If the magistrate deems the objection well taken, he 86 COUNTEE AFFIDAVIT. dismisses the proceeding ; for there is no power to amend any of the proceedings, except that, perhaps, as to the proof of service, the magistrate, on holding that defective, might, after objection for that cause, receive additional proof of the service. If the mag- istrate overrule the objections, the proceeding goes on in the same manner as if no such objections had been interposed. The party objecting has the ben- efit of his objections without any technical excep- tion. Objections to matters of substance may be taken at any time ; but objections to matters of form only, should be taken before filing the counter-affi- davit. And filing a counter-^affidavit may be such a waiver of objections to matters of form only, as to prevent the party objecting afterwards insisting upon them. A party who appears only for the pur- pose of making a preliminary objection should so state at the time of appearance. Sko. 53. — The counter-affidavit.— formerly a party might at the time of showing cause, or before, file with the magistrate who issued the summens, an af- fidavit denying the facts on which the summons is- sued, *. e., the facts stated in tb'e affidavit of the land- lord, or any of those facts. And this was and is called a bounter-afi&davit. As the statute now reads, the Avords " or before " are omitted. The party in- tending to file a counter-affidavit, should have it prepared and ready to file at the time for showing cause, as the magistrate has no power to adjourn the COUNTEE AFFIDAVIT. 87 proceeding imtil after tk§ affidavit, is filed. And as tlie affidavit once filed cannot be amended, it should be well considered before being filed. Any person who may show cause may make the counter-affidavit ; and although he be not named in the summons, he is not obliged to disclose how or by what right he comes in to show cause, further than to state that he claims possession of the pre- mises or some part thereof. The counter-affidavit is to deny all, or some, or one (5f \h.e facts stated in the affidavit on which the summons issued. It should do this and nothing more. Nothing more can in any case be necessary, and nothing more should be allowed. In the ab- sence of experience, it might well be supposed that no doubt or difficulty could by possibility arise out of this plain requirement. Experience, however, teaches that instead of the direction of the statute being complied with, the counter-affidavit is too fre- quently a rigmarole, or mass of allegations, which, if not altogether irrelevant, leaves it doubtful what is intended, what allegations of the landlord's affi- davit are admitted, and what denied. This is not so generally the result of ignorance as of dishonesty and cunning. The man who would not dare to plainly deny a fact, will dare to f trice with it by swearing to a number of alleged facts, and then in- sist that, although not a denial, the facts so stated amount to a denial. This is an evasion of the stat- ute. " The statute did not contemplate pleading 88 COUNTEE AFFIDAVIT. in these summary proceedings." (Willard, J., Geisler V. Acosta, 5 Selden, 233.) " The denial should be express and positive, and not circumstantial and ar- gumentative. Ifo possibility of evasion should ex- ist." (Nelson, Ch. J., Niblo v. Post, 25 Wend. 285.) The denial must not only be of a fact alleged in the landlord's affidavit, but a material fact. The usually material facts in the landlord's affidavit are those stated ante, p. 58. Of course all the facts in the landlord's affidavit not denied by the counter- affidavit are taken as admitted to be true. It is only the facts denied that are in issue. (McGuire v. Ulrich, 2 Abb. 28.) Where a tenant, instead of a simple denial of an allegation in the landlord's affidavit, undertakes to controvert such allegation by setting up facts incon- sistent with the truth of the landlord's allegation, he must see to it that he sets up such facts as do- show a defence, or amount to an indirect denial of the landlord's allegation. Thus, where, on a proceed- ing for non-payment of rent, the counter-affidavit averred that a similar proceeding had been pre- viously commenced for the alleged non-payment of the same rent, that the parties appeared, and that the magistrate, after hearing the evidence, gave judg- ment for the tenant, it was held that the affidavit did not show any defense ; at least it ought to have shown what, if any, issue was raised and passed upon in the prior proceeding. (Geisler v. Acosta, 5 Selden, 227.) DEMAND OF JUEY. 89 The counter-affidavit may be, it is tliought, and usually is, sworn before the magistrate before whom the proceeding is pending. The shrewd practitioner will be careful not to make his objections to the counter-affidavit until after it is filed ; as until it is filed it can be amended, afterwards it cannot. Probably the affidavit is not filed by merely handing it to the magistrate to pass upon its sufficiency, and if he deems it sufficient, then to file it. (Beal v. Alexander, 6 Texas Eep. 541 ; Cullen V. Miller, 2 E". Y. Legal Observer, 62 ; Hun- ter V. Caldwell, 2 New Prac. Cas. 160.) The mag- istrate may give his opinion on the affidavit before he files it, and, if adverse to its sufficiency, may hand it back for correction. But the adverse party is not obliged to state his objections to the affidavit until it is actually filed. If after the counter-affidavit is filed it is deemed insufficient, the magistrate proceeds as though no affidavit had been filed. He cannot, it is supposed, receive another or amended affidavit. But if the affidavit is deemed sufficient, the magistrate pro- ceeds to try the questions controverted. Sec. 54. — Mode of trial — demand of jury. — The facts controverted by the counter-affidavit must be tried by the magistrate without a jury, unless at the time for showing cause, and before any adjournment, either party shall demand a jury, and, at the time of such demand, ^ay, tliat is, deposit with the magis- 90 ADJOtTENMENTS. trate the necessary costs and expenses of obtaining a jury. A trial by jury cannot be had unless these conditions are strictly and literally coixiplied with. (See Shannon v. Kennedy, 1 E. D. Smith, 348 ; Yan Heusen v. Kirkpatrick, 1 Code Eep. N. S. 74 ; 5 How. 422.) The magistrate determines how much shall be de- posited. If the amount deposited proves insuflScient, the party must make a further deposit, on request, or probably he will lose the benefit of his demand of a jury altogether, and the sum first deposited. If the sum deposited exceeds the necessary costs and expenses of obtaining the jury, the depositor is en- titled to have the excess refunded. After a jury has been demanded, the party making the demand may at any time waive the demand, and consent to have the trial without a jury. (Hos- ford V. Carter, 10 Abb. 452 ; and see Benjamin v. Benjamin, 1 Selden, 385. The learned judge in that case certainly overlooked the amendment by the law of 1849, providing for a trial without a jury, unless a jury is demanded.) I Sbo. 55. — Adjourwrnents. — After a sufficient coun- ter-affidavit has been filed, but not before, the mag- ' istrate before whom the proceeding is pending must, it would seem, where a jury has been duly de- manded, adjourn the proceeding in order to obtain a jury, and until a jury can be obtained ; and in all cases, whether a jury has or has not been demanded, DISCONTIKUANCE. 91 the magistrate may, upon the request of either party,) adjourn the trial, for the purpose of enabling suchS party to procure his witnesses, whenever it shall] appear to be necessary, for a period not exceeding! ten days. (T[ 18.) One adjournment is usually'aH lowed of cov/rse, but the magistrate may require to\ be satisfied of the necessity for the adjournment ; J and it rests entirely within his discretion to allow or/ refuse an adjournment. The magistrate may beV satisfied of the necessity for the adjournment either ! by the affidavit of the party, or by his oral exami-j nation by the magistrate. As the statute is construed, there may be any number of adjournments of not exceeding ten days each. But where a jury is demanded, it is held that, unless by consent, the adjournment cannot exceed three days. The rule is almost universal that the party asking the adjournment pays the cost of it. Sec. 56.-~-J)isGontmuanoe of proceedings. — It seems that the landlord has the option, at any time before a decision is actually pronounced, and even after the case has been submitted, to discontinue the proceeding. (Carlisle v. McOall, 1 Hilton, 399.) Sec. 57. — Obtaining a jv/ry. — A jury having been duly demanded, and the requisite deposit made in order to obtain such jury, the magistrate with whom the counter affidavit was filed nominates twelve reputable persons, qualified to serve as ju- 92 " ATTENDAlirCE OF rors in courts of record, and issues his precept, called a venire, directed to the sheriff of the county or one of the constables of the county, city, or town (T 13) within which the premises are situate, command- ing such sheriff or constable to summon the per- sons so nominated to appear before such magistrate at such time and place as he shall therein appoint, not more than three days from the date thereof (ex- cluding the day of the date and including the day for appearance) for the purpose'of trying the matters in difference. The magistrate must not nominate more nor less than twelve persons, nor command more nor less to be summoned ; if he do, the persons summoned will not, the objection being taken, be qualified to serve on the jury. (Farrington v. Morgan, 20 Wend. 207.) Sec. 68. — 8vm,monwig jv/rors. — The sheriff or constable is to summon the persons named in the precept, by giving personal notice to each person, or by leaving a written or printed notice at his place of residence, with some person of proper age ; and on returning the precept he should specify the per- sons who were summoned, and the manner in which each was notified to attend. Sec. 59. — Procwrvng attendance of witnesses. — To procure the attendance of witnesses the magistrate may, at the request of either party, issue his sub- poena requiring any person to appear and testify be- fore such magistrate, or before the jury, touching ■WITNESSES. 93 the matters to be tried. (T[ 19.) The subpoena must be subscribed by tbe magistrate, but it need not be sealed. (Laws 1847, ch. 280, s. 51.) Where the proceeding is before a justice of a dis- trict court in New York city, he " may compel the attendance of witnesses on the trial * * the same as if it was the trial of an action pending in a court of record, except that the subpoenas shall be signed by the justice." (Laws 1857, ch. 344-, s. 79.) There seems to be no authority to enforce the production of books and papers ; you may compel the witness to appear and testify, but not to bring with him his books or papers. The subpoena must be personally served on the witness, witliin the jurisdiction of the magistrate who issues it. The mode of service is (2 R. S. 400, s. 42) by : 1. By showing to the witness the original subpoena under the hand of the officer issuing the same. 2. Delivering to such witness a copy of the subpoena or a ticket containing its sub- stance. 3. Paying or tendering to such witness the fees allowed by law for traveling to and returning from the place where he is re- quired to attend [to the place where he resides ; or, if he resides out of the juris- diction of the magistrate, to the bound- 94 WITNESSES FEES. ' ary of the magistrate's jurisdiction], and the fee allowed for one day's attend- ance. The fee for one day's attendance is fifty cents. If the witness resides more than three miles from the place of attendance, his traveling fees are four cents a mile going and returning (Laws^ 1840, ch. 386, s. 8); the distance to be measured by the nearest usually trav- eled route. (Haynes v. Mosher, 15 How. 216 ; Wheeler v. Lozee, 12 id. 446.) Perhaps where the proceeding is before a jiistice of the peace, the witness' fee for attendance would be those prescribed in justices' courts. See sec. 69, post, and note thereto. A person duly subpoenaed, and his fees paid or tendered, is bound to attend according to the tenor of the subpoena; and for his^ neglect to attend, if the subpoena is issued by a justice of a district court in the city of New York, the justice " is authorized to punish " him " as courts of record are authorized to do" (Laws 1857, ch. 344, s. 79) ; but if the subpoena is issued by any other magistrate, the person so making default is to "be subject to the proceedings and penalties provided by law in simi- lar cases." (1 19.) The law provides ( 2 R. S. 400, s. 43) that every person duly subpoenaed as a wit- ness shall be bound to attend, according to the com- TRIAL ET JTJEY. 95 maud of such subpoena ; and for every failure so to attend, without a reasonable excuse, shall be deemed guilty of a contempt, and be respo^-sible in the prop- er action to the aggrieved party for the consequent loss and hindrance and all other damages, and shall forfeit to the aggiieved party $50, in addition to such damages, to be recovered in a separate action, or in the action for the damages. The vntness is exempt from arrest in any civil action, in going to obey the subpoena, attending pursuant thereto, and in return- ing to his home. {Id. s. 51.) Teial by or with a Juey. Sec. 60. — Drawing the jury. — If the parties do not agree on a less number, the jury is to consist of six persons, drawn as follows : The names of the twelve persons summoned to form a jury, if all at- tend at the return of the venire, or, if all do not at- tend and there is no challenge to the array (as to which see post, section 61), then the names of such of them as attend, are to be respectively written on several and distinct pieces of paper, as nearly of one size as may be ; the constable, in the presence of the magistrate, is to roll up or fold such pieces of paper as nearly as may be in the same manner, and put them together in a box or some convenient thing. The magistrate is then to draw out six (or such less number as the parties may have agreed upon) of such jiapers, one after another, and if any of the 96 CHALLENGES. persons whose names are so drawn shall be chal- lenged and set aside, then such further number is to be drawn as will make up the number required, af- ter all legal causes of challenge allowed by the jus- tice. The persons so drawn, appearing and approved as indifferent, shall compose the jury. ( 2 R. S. 243, ss. 99, 100.) Where the parties do not consent to try with less than six jurors, and six iridifferent persons do not appear, the magistrate cannot, as in the case of the trial of an action, supply the deficiency by direct- ing the constable to summons the bystanders or others. (Miner v. Burling, 32 Barb. 540.) That case was as follows : On the drawing of the jury of those summoned only three were found qualified, and thereupon, notwithstanding the objection of the ten- ant, the magistrate supplied the deficiency by hav- ing three by-standers (talesmen) summoned and sworn, and they with the jurors first summoned, sat and tried the issues, and found for the landlord. On certiorari the Supreme Court reversed the proceed- ings. Sec. 61. — Challenges. — "Where the trial is to be by or with a jury, the first questions that may arise are upon objections to the sufficiency of the jurors collectively, or of any individual juror. These ob- jections are called challenges ; if made to the jurors collectively, they are called challenges to the array ; CHALLENGES. 97 and if to individual jurors, challenges to the polls or heads. Either of these challenges may be for cause or for favor. -Cause is matter directly disqual- ifying the juror. Favor is matter raising the pre- sumption that the juror has bias or prejudice in fa- vor of or against one of the parties. It is doubtful if there is any right of presumptive challenge in these proceedings. The challenge to the array is first in order. It should be taken before the jury is drawn, or proba- bly the right to make it may be considered waived. (Mayor of Ifew York v. Mason, 1 Abb. 344.) The array may be challenged for any irregularity in nominating or summoning the jurors, as if too many or too few jurors are nominated (Farrington v. Morgan, 20 Wend. 207), or because the jurors sum- moned were not those nominated, or because all that were nominated were not summoned. (See 2 E. S. 420, ss. 56, 57, 58.) A challenge to the poll should also be before the juror is sworn. A challenge to the array cannot be made after a challenge to the polls. The challenge may be demurred to or contro- verted. (See The People v. Freeman, 4 Denio, 9.) The demurrer is an admission that the alleged ground of objection exists, but a denial that it is in law suf- ficient to disqualify. This is decided by the magis- trate. (Seel Cowen, 441; 6 id. 555; 9 Johns. 261.) 5 98 CHALLENGES. The challenge is controverted when the opposite party denies that the alleged ground of objection exists. In this case the question is, if either party demands it (The People v. Mather, 2 Wend. 22y), to be passed upon by triers ; or, the parties not de- manding triers, the challenge may be tried by the magistrate. Each challenge to the polls, is to be separately tried. If triers are demanded, and the challenge is to the poll for favor, which is the most usual challenge, the challenge is tried as follows : — If the juror chal- lenged is the first one drawn, the magistrate appoints two triers, who may be two of the jurors summoned. If before the challenge two jurors have been sworn, they act as triers; if more than two have been sworn, then two of those sworn act as tri- ers.* The triers, whether jurors or not, are sworn to find whether the juror challenged stands indiffer- ent between the parties in the proceeding. On the trial of the challenge, the juror challenged and wit- nesses may be examined. The triers find either that the juror is or is not indifferent. If that he is *Th6 form of oath to the triers, on a challenge to the array, is — "Ton shall well and truly try the issue of challenge to the array of jurors in the proceeding wherein A B is landlord and C D is tenant, and a true finding make according to evidence : so help you God." The form of oath to the triers, on a challenge to the poll for favor, is—" You shall well and truly try whether X Y [the juror chal- lenged] stands indifferent between A B [the applicant] and C D [the tenant]." NEW VENIEE. 99 not indifferent, he cannot serve ; if that he is indif- ferent, then he may serve. Sec. 62. — New venire^ when to issue. — If the con- stable to whom the venire shall have been delivered do not return the same as thereby required, or if a full jnry, or the number agreed on by the parties, shall not be obtained, the magistrate is to issue a new venire, and this as often as may be necessary. (2 E. S. 213, s. 102 ; Porter v. Case, 7 How. 444, 9 "Wend. 227.) A new venire is also to issue where the jury do not agree. (1|" 15.) On the return of a new venire, the like proceedings are had as on the return of the first. Sec. 63. — Oath to jurors. — To each juror the magistrate is to administer an oath or affirmation well and truly to hear, try and determine the mat- ters in difference between A B [the applicant] and C D [the tenant], and, unless discharged by the magistrate, a true verdict to give according to the evidence. (1 15 ; 2 R. S. 243, s. 103). Sec. 64. — The trial. — After the jury have been duly sworn, they are to sit together and hear the proofs and allegations of the parties, to be delivered publicly in their presence. The proofs and summing up are governed by the like rules which prevail on the trial of the issue in an action. And either party to the proceeding may 100 DELIBEKATION OF JUKY. be examined as a witness on his own behalf, in the same manner as on' the trial in an action. (Code, s. 399, as amended; Laws 1860, ch. 459, s. 12.) Sec. 65. — Power of the magistrate on the trial,-r^ If the proceeding is before a justice of a district court in New York city, it is provided that he, when actually engaged in the hearing or trial of any spe- cial proceeding, shall have all the power and au- thority to punish for contempt as provided by sub- divisions 1, 2, 3, 4, and 5, of section 10, and by sec- tions 11, 12, 13, 14, and 15, of chapter 3, part 3, title ii. of the Revised Statues, and all laws for en- forcing compliance with said section and subdivi- sions. (Laws 1857, ch. 344, ss. 79, 66.) It is also provided that on a trial before a justice of a dis- trict court in New York city, the trial may be con- tinued from day to day, or from one day to any other day or days, until tlie same is finished {id. 78). But where the trial is before any other magistrate, it is supposed he has no power to punish for a con- tempt, nor to continue the trial from one day to an- other, or from day to day ; but once commenced it is to be continued without intermission until brought to a close. Sec. 66. — Deliberation of the jury. — ^The jury af- ter hearing the allegations and proofs of the parties and their witnesses, are to be kept together until they agree on their terdict [or until they are dis- VERDICT. charged as after-mentioned], by tlie sheriff of his deputies, or by some proper person appointed by the magistrate for that purpose, who shall be sworn to keep such jury as is usual in like cases in courts of record. (T 14.) It is not imperatively ne- cessary for the jury to retire, but if they do retire, a proper person must be sworn to attend tbem, and the failure to swear a person to attend them is fatal to the regularity of the proceeding. (Yan Doren-i). Walker, 2 Caines, 374; Beekman v. Wright, 11 Johns. 442 ; Ooughnet v. Eastenbrook, 11 id. 532.) Seo. 67. — Discharging jury without a verdict. — _ If, after being kept together for such time as the magistrate shall deem reasonable, the jury cannot agree, the magistrate may discharge them and nom- inate other twelve persons and issue a new precept, and the same proceeding be had as before explained for obtaining a jury. And this it is supposed he may do as often as need be, and until a jury is ob- tained that does agree. After a jury fail to agree, the parties sometimes consent, as they may, that the magistrate may decide the case, either on the evi- dence already adduced before the jury, or on that and some additional evidence. Sec. 68. — The verdict. — The jury must be unani- mous in their verdict, and must find generally either in favor of the landlord, or in favor of the tenant ; they cannot give a special verdict. Probably the landlord ought to be called when the jury announce 102 ENTET OF VEEDICT. themselves ready to render their verdict ; in the ah- sence of the landlord or some one appearing for him, it may be that the verdict could not be re- ceived. He may have purposely absented himself in order to discountenance the proceeding, as it seems he may do at any time before the decision (Carlisle v. McCall, 1 Hilton, 399). The landlord not appearing when called, the proceedings would it seems be thereby discontinued. The verdict should be delivered to the magistrate publicly. It is supposed that the jury may be polled, that is asked individually, " Is this your verdict ?" (Labar v. Koplin, 4 Corns. 647.) If either juror answers ISTo, it is thought the jury may again retire. (2 Wend. 352 ; 3 Johns. 255.) Sec. 69. — Proceeding on verdict. — After the jury have rendered their verdict, if the proceeding is be- fore a justice of the peace, the justice is to enter the finding of the jury upon his docket, and render judgment in accordance with the verdict,, and in- clude in such judgment costs of the proceedings to the prevailing party. {% 26.) The costs are to be at the rate of fees allowed by law in civil actions in 18i9.* In proceedings before any magistrate other * The fees allowed by law in civil actions in courts of justices of the peace, in 1849, were (2 E. S. 264, s. 228): To the Justice. For a summona, 9 cents. For a warrant, 12 J cents. 103 than a justice of tlie peace, the prevailing party ia also entitled to costs, — by costs being meant only his necessary disbursement for magistrates', officers', ju- Por an attaoliment or execution, 19 cents. For every adjournment, except such as shall be made by the jus- tice without the motion of either party, 9 cents. For a subpoena, 6 cents. For administering any oath, 6 cents. For filing every paper required to be filed with him, 8 cents ; but no fee shall be allowed for filing any written declaration, plea, or other written pleading, or for filing any process issued in any cause. For a venire, 19 cents. For swearing a jury, 12J cents. For entering a judgment, 25 cents. For a transcript of a judgment, 25 cents. For every bond or other written security directed to be taken by any of the provisions of this title, if drafted by the justice, 25 cents. To Witnesses, From the same county, subpoenaed and attending, 12^ cents; from any other place than the same county, 25 cents for every day's ac- tual attendance. To GonstaUes. For serving a warrant or summons, 12 J cents. For a copy of every summons delivered on request or left at the dwelling of the defendant in his absence, 9 cents. For every mile, going only, more than one mile, when servliig a summons, 6 cents, — to be computed from the place of abode of the defendant, or where he shall be found, to the place where the pre- cept is returnable. i [These fees are not chargeable unless service is actually made. 1 Denio, 658.] Summoning a jury, 50 cents. To Jurors. For attending to serve as such although not sworn, 6 cents each. For attending and trying a cause, 12^ cents each. To a constable or other person for serving a subpoena, 12f cents 104 COSTS, HOW COLLECTED. rois', and witnesses' fees, and not including attorney or counsel fees. (Van Hovenburg v. Case, 4 Hill, 852.) Sec. 70. — Costs, how collected. — If the proceeding is before a justice of the peace, he may include a direction for the collection of the costs in the war- rant to diSjjossess (if any is issued), or an execution may issue for them, as for costs in an action, or the prevailing party may maintain an action for such costs. (Crane v. Hard man, 4 E. D. Smith, 339.) And where the proceeding is before any magistrate other than a justice of the peace, an action is the only remedy the prevailing party has for recovery of his costs. Tel4.l without a Jdet. Sec 71. — When and how had. — Unless a jury is for each witness served ; but no allowance shall be made for service upon more than four witnesses in any cause. The whole amount of all the items of such costs, except charges for the attendance of witnesses from another county, shall not in any case exceed $5. (2 R. S. 247, s. 126.) If judgment be rendered by any justice for a greater amount of costs than Is allowed by law, or for any item of costs or fees im- properly, and the same be collected, the person payiag the same may, notwithstanding such judgment, recover of the party who shall have received such costs or fees, the amount thereof with interest. (2 R. S. 266, s. 230; 19 Wend. 551.) Costs voluntarily made by the party against whom the judgment is rendered, must not be included in the judgment. (13 Johns. 360 460; lUd. 369 ; 15 id. 196; 1 Cow. 111.) The costs of a venire, howeyer, must always be included in the judgment. (18 Johns. 131.) TBIAL WITHOUT A JUEY. 105 duly demanded, and a deposit made for the expense of obtaining the jury, the trial must be by the mag- isti'ate without a jury. Except in the case of a trial by a justice of the peace, no directions are given for the conduct of a ti'ial without a jury. What^has heretofore been said as to procuring the attendance of witnesses, and as to adjournments, applies to the case of a trial without .a jury. The magistrate having heard the allegations and proofs, usually an- nounces, on the spot, for whom, whether for the landlord or the tenant, he decides, and then and there informs the parties in favor of which of them he decides. It may be that, unless perhaps in the case of a justice of a district court in !New York city, he has no power to defer rendering a decision. In any event, and in every case where the proceed- ing is for non-payment of rent, the magistrate, on deciding adverse to the tenant, should inform him of his decision before issuing his warrant, that the tenant may have an opportunity, if he desires it, of giving security for, or paying the rent and costs. Where the proceeding is before a justice of the peace, he is to enter his decision in his docket, and render judgment according to such decision,* and * In Post II. Post (14 Barb. 255), an objection was taken to the manner in which the justice of the peace before whom the trial took place without a jury entered his final decision in his docket. The return, after setting forth the proceedings down to the argu- ments of counsel on submitting the case, stated: "I rendered judgment that said tenant remove from the premises described, 5* 106 DISABILITY for costs of such proceeding to the prevailing party. (T 26.) As to the costs and their collection see ante sections 69 and 70. Sec. 72. — Continuance of proceedings in case of death, disability, c&o., of magistrate. — In case of the death, sickness, resignation, removal from office, ab- sence from the county of .his residence, or other dis- ability of any oBScer before whom any special pro- ceedings authorized by any statute may Lave been commenced, and where no express provision is made by law for the continuance of such proceedings, the same may be continued by the successor in office of such officer, or by any other officer residing in the sanae county who might have originally instituted such proceedings; or if there be no such officer in the same county, then by the nearest public officer in any other county who might have originally had jurisdiction of the subject-matter of such proceed- ings, if such matter had occurred or existed in his own county. (2 K. S. 284, s. 51.) At the same time and place which may have been given for parties to appear, or for any other proceeding to he had, the and also judgment against the defendant for costs." The court said: " The justice does not profess to give the form of the entry in his docket. It was his duty to have stated that he decided for the plaintiff on such application for a warrant, and that it was ad- judged that he have a, warrant of removal. But I think it may fairly he presumed that in fact the entry of judgment substan- tially complied with the statute.") OF MAGISTRATE, 107 officer substituted according to the last section, or according to any other provision of law, to continue proceedings commenced before another, may make any order, and do and perform any act in relation to such proceedings, as if the same had been originally commenced before him (2 E. S. 285, s. 52). But before any proceedings shall be had before any such substituted officer, at any other time or place than such as shall have been specified in the notice or order requiring parties to appear, notice of such substitution shall be given to the parties who may be aflPected thereby, either by personal service or by publication in such manner and for such time as the substituted officer shall direct. Such substituted officer shall thereupon be authorized to make every order, and to do and perform every act in relation to such proceedings, as if the same had been originally commenced before him {id. 53). And where the proceeding is before a justice of a district cotirt in the city of New York, it is provided : " A special proceeding commenced before one justice, may be continued before any other justice having juris- diction of the subject-matter, the same as though it had been originally commenced before him." (Laws 1857, ch. 34i, s. 78.) Would the affinity of the magistrate to either of the parties constitute a disability ? (Oakley v. Aspin- wall, 3 Corns. 547 ; The People v. Wheeler, 21 N.T. 82 ; Albany Northern E. E. Co. v. Cramer, 7 How. Pra. Eep. 164.) 108 EFFECT OF DECISIOK. Sec. 73. — Decision in fmor of tenant. — If the verdict of the jury or the decision of the magistrate is in favor of the tenant, that terminates the pro- ceeding, unless the proceeding is before a justice of the peace, in which case an execution may issue for the costs. Sec. 74. — Decision in favor of landlord. — If the verdict of the jury or decision of the magistrate is in favor of the landlord, the next step is the issu- ance of a warrant to put him into possession of the premises, unless the issuance of the warrant be stayed by one of the means after-mentioned. Sec. 75. — Binding effect of decision.— The verdict of a jury, or the decision of the magistrate, in these proceedings, is in effect the judgment of a compe- tent jurisdiction, and is conclusive as to all the ques- tions litigated in all subsequent controversies where the same points come again in question between the same parties. Thus, in a proceeding for non-pay- ment of rent, the tenant denied that any rent was due, and the jury found in favor of the tenant ; the landlord afterwards (a. d. 1845) distrained for the same rent ; the tenant replevied ; the landlord avowed taking the property as a distress for rent, and the tenant pleaded, (1) No rent in arrear ; and (2) The proceedings to dispossess, and the verdict of the jury. This second plea, was on demurrer, held to constitute EVIDENCE OF PROCEEDING. 109 a complete defence (White v. Coatswortli, 2 Selden, 137; and see Giesler v. Acosta, 5 id. 22Y). But where, on a trial without a jury, the evidence was closed on both sides, and the cause submitted with the single reservation of leave to put in written points, and after the adjournment the counsel for the landlord applied to the magistrate before whom the proceeding was pending to discontinue the pro- ceeding, and no decision was ever made, — ^held, that this proceeding was no bar to a subsequent one between the same parties and involving the same question (Carlisle v. McCall, 1 Hilton, 399). The parties are in no case concluded on any other points than those actually litigated (Mason's Ex. v. Alston, 5 Selden, 28). Sec. 76. — Evidence of proceedings. — "Where the proceeding is before a justice of a district court in the city of New York, a transcript of any proceed- ings had before him, or of any other paper filed with him, or of the minutes of any testimony taken by or before him, certified by him to be correct, shall be presumptive evidence of the facts therein contained (Laws 1857, ch. 344:, s. 78). It may be that this provision makes the certificate the best evidence, and that the proceedings cannot be proved by parol testimony (Lawrence v. Houghton, 5 Johns. 129; Whiter. Hawn, id. 351; Posson-y. Brown, 11 id. 166 ; McLean -y. Hugarin, 13 id. 184 ; Brintnall V. Foster, 7 Wend. 103 ; Webb v. Alexander, id. 110 STAYING WAEEANT 281; Boomer 1). Laine, 10 id. 525). Pi-obably the minutes of any other magistrate are not evidence (Everton v. Sutton, 5 Wend. 281). Seo. 77. — Staying issuance of the warranthy pay- ing or securvng the rent. — If the proceeding is for non-payment of rent, the issuance of the warrant may be stayed by the person owing the rent, before the actual issuance* of the warrant, paying the rent then due and all the costs and charges of the pro- ceeding, or by his giving security to the person en- titled to the rent for the payment of said rent and costs of the proceeding, within ten days ; such secur- ity to be to the satisfaction of the magistrate. The person giving such security must pay the rent and the costs within the ten days, and also within the ten days produce to the magistrate satisfactory evi- dence of such payment; otherwise the warrant to put the landlord in possession may issue at any time after the expiration of said period of ten days. The ten days are computed exclusive of the day on which the security is given. Sec. 78. — Staying the issuance of the warrant hy * Probably actual issuance means delivery to an officer to be ex- ecuted. In Pewtress v. Annan, 9 Dowl. P. C. 828, the court said the issuing of a fiat in bankruptcy meant the time of delivering it out as an operative instrument. And see Hernaman v, Coryton, 15 London Law Times, 34B. INJUNCTION. Ill an appeal. — Where the proceeding is before a justice of the peace, but not in any other case, the issuance of the warrant or the execution for the costs, or both, may be stayed by an appeal from the judgment and giving security as after mentioned. Sec. 79. — Staying the issuance of the warrwnt h/ - injunction. — Although it is provided that these pro- ceedings "shall not be stayed or suspended by writ of certiorari, or any other writ or order of any court or oflBcer {% 22), yet, notwithstanding, the courts do frequently enjoin these proceedings. In Smith v. Moffat (1 Barb. 65), Edmonds, J., held that no injunc- tion could issue to enjoin summary proceedings. This was before the passage of the Code of Proced- ure. Subsequently to the passage of the Code of Pro- cedure, the same judge held that the Supreme Court might grant an injunction to stay such proceedings. (Cure V. Crawford, 1 Code Eep. IST. S. 18.) The contrary view was taken by Barculo, J., in Words- worth V. Lyon, 1 Code Eep. N. S. 63, 4 How. 463). Afterwards Roosevelt, J., held that an injunction could not be granted. (Hyatt v. Burr, 8 How. 168. In the Superior Court, Oakley, Ch. J., with the con- currence of all the justices of that court, held that the court would relieve the tenant on equitable terms against whom a warrant to dispossess had been obtained by surprise. And in that case they re- strained the issuance of the warrant on payment of the rent and the costs. (Forrester v. Wilson, 1 112 INJUNCTION. Duer, 648.) And in Capet ^y. Parker (1 Code Kep.N. S. 90) the Superior Court also enjoined the proceed- ings. In Yalloton v. Seignett (2 Abb. 121), it ap- peared that the tenant would suflFer an irreparable injury, and be deprived of an equitable right exist- ing against the landlord, unless an injunction issued, and Cleike, J., granted an injunction. In a subse- quent case (Bokee v. Hamersley, 16 How. 461), the"- , same judge, on refusing an injunction, stated that the only cases in which the court would enjoin these proceedings were, (1) where there is fraud or collu- sion ; (2) where it appears the magistrate did not ac- quire jurisdiction ; and (3) where the tenant has a defence he was precluded from setting up before the justice. After a warrant to dispossess had issued, the Superior Court refused to stay the execution of such warrant on the ground that the tenant had a claim against the landlord for damages for breach of his covenant to repair exceeding the amount of the rent in arrear. (Duigan v. Hogan, 1 Bosw. 645.) And that same court afterwards decided that it would not enjoin these proceedings except in cases of undue advantage, fraud, or surprise, to which the landlord was a party. (Marks v. Wilson, 11 Abb. 87.) Bonney, J., in the Supreme Court, held that an injunction should not issue to restrain the prose- cution of these proceedings where the tenant had, as he alleges, a perfect defence which he omitted to interpose, no fraud or abuse being shown. (Seeback V. McDonald, 11 Abb. 96, 21 How. 224.) THE WAEEANT. 113 Seo. 80. — Com'pelling the Magistrate to issue the Warrant. — After a determination or judgment in favor of the landlord, it becomes tbe duty of the magistrate, unless stayed by some one of the means before mentioned or by appeal, forthwith to issue a warrant ; and if he improperly neglects or refuses to issue a warrant, the landlord's remedy is by man- damus. (The People v. Willis, 5 Abb. 206.) Be- fore a party is entitled to a mandamus he must first make a distinct demand to have the warrant issued, and a tender of the fees. (See 7 Jurist, 233 ; 8 id. 496 ; 3 Adol. & El. 477.) Sec. 81. — The Wa/rra/nt. — No one appearing to show cause on the return day of the summons, or appearing and not showing any sufficient cause, or where the verdict of the jury or the decision of the magistrate is in favor of the landlord, and the issuance of the warrant is not stayed, then a war- rant issues. The warrant is to be directed to the sheriif of the county, or to any constable of the city or town where the premises are situate, and is to command the of- ficer to whom it is directed to remove all persons from said premises, and put the applicant to such mag- istrate into the full possession thereof. The warrant is* process, and is to be in the name of the people of the State (2 E. S. 275, s. 8); in the English language, except technical words; be made on paper or parch- ment, in a fair, legible character ; in words at length. 114 THE WAEEANT. and not abbreviated, except sucb abbreviations as are commonly used in the English language, and except that numbers may be expressed by Arabic figures or Eoman numbers {id. s. 9). It must be subscribed by the officer who issues it, with his name, and, as it is thought, his description, so as to show on its face that he is one of the officers on whom j mis- diction in such a case is conferred ; and it should, it is thought, also show on its face the place where issued, that it may appear to have been issued within the territorial jurisdiction of the officer by whom it is subscribed. It does not seem necessary to add a seal (Laws 1847, ch. 280, s. 57) nor a date, but it is usual to add both. The warrant must describe the premises from which the parties are to be evicted and of which pos- session is to be given ; the description should be substantially the same as in the summons. It seems necessary, also, on general principles, to set forth in the warrant the facts which conferred the jurisdiction to issue the summons, and all the steps in the proceeding which authorize the issu- ing of the warrant. Although the statute says the warrant shall com- mand the removal of " all persons from the prem- ises," and although the language of the warrant usually follows the direction of the statute in this respect, yet it would seem to be necessary to state the names of the persons to be removed, and that EXECITTION OF WAEEANT. 116 those persons be the persons named in the summons, or who voluntarily appeared to oppose the issuing of the warrant. A.U persons, it is supposed, refers only to all those named in the summons, or who claim through those named in the summons subse- quent to the issuing of the summons, or who went into possession of the premises after the proceedings were instituted. Where the proceeding is before a justice of the peace, the warrant may, in addition, direct the col- lection of the costs of the proceeding. Sec. 82. — Execution of warrant. — The warrant can be executed by the sheriff or a constable only, and not by a private person. Any sheriff or con- stable to whom any such warrant shall be directed and delivered who shall willfully neglect to execute it, may be fined, by the officer who issued the war- rant, a sum not exceeding twenty-five dollars (2 K. S. 551, s. 3). The sheriff or constable is also to make a due return of his proceeding upon the warrant, which return is to be signed by him ; and for any refusal to execute the warrant, to make a return, he is liable to an action, at the suit of any party aggrieved, for the damages sustained by such party, in addition to any other fine, punishment, or proceeding which may be authorized by law. (2 K. S. 440, s. 77.) In the execution of the warrant, if the sheriff or constable apprehends resistance thereto, he may raise the. power of the county. (2 K. S. 441, s. 80.) J. 16 EFFECT OF On delivery of the warrant to be executed he must, if requested by the person delivering the same, and on payment of the fee allowed by law, give to such person a minute in writing, signed by such sheriff, specifying the names of the parties, the nature of the process, and the day of receiving it. ( 2 R. S. 440, s. 76.) The tenant should be allowed to remove his prop- erty off the premises, and preventing him from so doing is a conversion of his property. (Moor v. Wood, 12 Abb. 39i.) Sec. 83. — Effect of the warrant. — By the issu- ance of the wai-rant to dispossess, " the contract or agreement (which includes le^se) for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties, is deemed canceled and annulled, the same as if the lease had been voluntarily canceled and surrendered (Rogers V. Lydes, 14 Wend. 172), subject, however to be re- vived in certain cases. See post, sec. 84. This cancel- lation of the contract does not act retrospectively; all the rights which had matured prior to and which were in existence at the time of the cancellation re- main unimpaired. Thus, the landlord's claim for rent past due, although payable in advance, or for damages done to the premises, or for any breach of the contract of hiring, continue to exist and may be enforced after the warrant has issued. When the proceeding is for holding over the term, THE WAEEANT. 117 then, for the use and occupation of the premises dar- ing the period the tenant or late tenant occupied the premises intermediate the expiration of his term and his eviction, the landlord cannot maintain an. action as for rent, but for the mesne or intermediate proiBLts. Where the proceeding is for non-payment of rent, and the rent is not payable in advance, then, for the time the tenant occupies after the last preceeding payment of rent and the time of eviction, the land- lord may sue as for mesne or intermediate profits ; he cannot recover it as rent, for in theory the late tenant held as a trespasser, intermediate the default in payment of the rent and his eviction. (Crane v. Hardman, 4 E. D. Smith, 339 ; Featherstonhaugh V. Bradshaw, 1 "Wend. 134.) Where the proceeding is for non-payment of rent in advance, and the tenant is evicted for its non-pay- ment, such eviction is not a defence to an action by the landlord to recover such rent. (Giles v. Corn- stock, 4 Corns. 270 ; Whitney v. Meyers, 1 Duer, 266 ; Davison v. Donadi, 2 E. D. Smith, 121.) Where A. agreed to hire premises for one year from 1st May, at a certain rent payable every two months in advance, and deposited with the landlord a sum of money as security for the performance of the contract on his part, with astipulation that it should finally be applied on account of the rent to ac- crue during the last months of the year — on 18th May the tenant, A. was dispossessed for non-payment 118 EFFECT OF WAEEANT. of the rent due 1st May in advance. A. sued to re- cover the deposit, and it was held that the landlord might set-off or counter-claim the rent due in ad- vance on the 1st of May preceding the eviction. (Cushingham v. Philips, 1 E. D. Smith, 415.) There are dicta to the effect that the evicted tenant may equitably claim and be allowed a deduction for the period unelapsed at the time of the eviction ; and such deduction was allowed. ("Whitney v. Meyer, 1 Duer, 296 ; Davidson v. Donadi, 2 E. D. Smith, 121.) For ourselves we can perceive no equity in such a deduction ; it would rather seem to us to be inequitable, unless in those cases where the landlord during the unelapsed time for which the rent was due, has re-let the premises, or has otherwise had a beneficial occupation of them. The landlord, by the contract, was entitled to his rent in advance : why should lie forfeit it, and have his premises un- productive, because the tenant breaks his part of the contract and does not pay ? The landlord is jiot in default in any way ; he should not be punished by a reduction from his rent because he takes the rem- edy the law provides. Where a promissory note was given by an under- tenant for rent payable in advance, and came in due course of business to the hands of the plaintiff for value, a dispossession of such undertenant by the superior landlord for the non-payment to him of the rent afterwards becoming due to him from his immediate lessee was held to be no defence to the EESTITUTION. 119 plaintiff's action on the note. (Brooks v. Ohristo- pher, 5 Duer, 216.) Query, whether where such dispossession took place after the undertenant had himself made defaiilt by not paying his note, the eviction would have constituted any defence to an action on the note by the lessee himself? Semile, It would not (id). Sec. 84. — Sestorincf premises to tena/nt, mort- gagee, or judgment creditor. — In the case of a ten- ant dispossessed for non-payment of rent, if the un- expired term of the lease under which the premises are held exceeds five years at the time of issuing the warrant upon such proceedings, the lessee, his assigns or personal representatives, may, at any time within one year after possession of the demised prem- ises shall have been delivered to the landlord, pay or tender to the lessor, his representatives or at- torney, or to the officer who issued the warrant, all rent in arrear to the time of such payment or tender, and all costs and charges incurred by the landlord; and in such case the premises shall be restored to the lessee, who shall hold and enjoy the same with- out any new lease thereof, according to the terms of the original demise ; and any mortgagee of the lease or any part thereof who shall not be in possession of the demised premises, or any judgment creditor of the lessee who shall, within one year after the execution of such warrant, pay all rent in arrear, all costs and charges as aforesaid, and perform all 120 EESTITUTION. the agreements which ought to be performed by the first lessee, shall not be affected by such reco\'ery ; and such judgment creditor may file a suggestion of such payment upon the record, and may issue exe- cution for the amount of the original judgment and of such payment. (^ 5.) Where, at the time the warrant to dispossess is- sued, tfie unexpired term did not exceed five years, but the lease contained a covenant that the lessor would at the expiration of the term pay to the lessee the vahie of the improvements, or grant a new lease for twenty-one years, at the option of the lessor : Held that the lessee could not claim a restor- ation under the above provision (Bokel v. Hamersley, 16 How. 466). REYIEW OF PROCEEDINGS. Sec. 85. — Modes of Review. — The proceedings to dispossess may in every case be reviewed. The mode of review is either by writ of certiorari out of the Supreme Court, or by appeal. The review by appeal applies onVy to the case of a proceeding be- fore a justice of the peace. The review by cer- tiorari applies, it is thought, to every case, includ- ing the case of proceedings before justices of the peace. Except the case of proceedings before jus- tices of the peace, the only mode of review is by certiorari (The People v. Willis, 5 Abb. 205 ; The People v. Bigelow, 11 How. 83). It was in one case held that where the proceeding was before a justice of a District Court in the City of New York, it might be reviewed by appeal to the New York Common Pleas (Davis v. Hudson, 5 Abb. 61). That decision was, subsequently disapproved, and it is now established that the only mode of reviewing these proceedings when had before a justice of a District Court in New York City is by certiorairi (Romaine v. Kinshimer, 2 Hilton, 520). "We will consider these modes of review sepa- rately ; first, the review by certiorari ; secondly, the review by appeal. 6 122 the eevtew 1. The Ebtiew bt Ceetioe^ei.* ^ Sec. ^6. — OerUorari does not issue of course. — The writ of certiorari is Bot a writ of right, it does not issue of course, and is obtainable only on an ap- plication showing cause for its issuance (The People V. Supervisors of Alleghany, 15 Wend. 198 ; The People V. City of Eochester, 21 Barb. 65Y).~ In practice, however, it issues almost as of course (The People V. Peabody, 5 Abb. 199). The granting or refusing it resfs in the discretion of the court (The People V. Mayor of IST. Y., 2 Hill, 9 ; Matter of M't Morris Sq., id. 14 ; The People v. Mayor of N. T., 5 Barb. 43 ; The People v. City of Eoches- ter, 21 id. 656). Therefore, the denial of an appli- cation for the writ is not appealable, at least, not appealable to the Court of Appeals (The People v. Stilwell, 19 N. Y. 531). The writ will not usually be granted where the party has another adequate remedy (The People v. Supervisors of Queens, 1 Hill, 195 ; Comstock v. Porter, 5 Wend. 98 ; Kellog v. Church, 3 Denio, 228 ; and see Johnson v. Moss, 20 Wend. 145 ; Wood v. Eandall, 5 Hill, 264). It has been said that th« remedies of review by cer- tiorari and by appeal, are in the case of a proceed- ing before a justice of the peace concurrent (The People V. Bigelow, 11 How. 83). It may be, how- ever, that before the court would allow a certiorari to review the proceeding before a justice of the * The Code does not apply to proceedings by certiorari (Code, s. 4^1). BY OERTIOEAEI. 123 peace, it would require to be furnislied with some excuse or sufficient reason why the review was not by appeal. Showing inability to give the security required on an appeal, or that a warrant had al- ready issued, or the probability that a difficult ques- tion of law was likely to arise, or that important interests are involved, might constitute a sufficient reason for a review by certiorari instead of by ap- peal. And where the proceeding before a justice of the peace is alleged to be void for want of juris- diction, it is thought the proceeding may properly be reviewed by certiorari (The People v. Judge of Suffolk Co., 24 "Wend. 249 ; Wildy v. Washburn, 16 Johns. 49 ; Fitch v. Comm'rs of Kirkland, 22 Wend. 132 ; Striker v. Mott, 6 id. 465). Sec. 87. — Who may apply for certiorari. — ^The writ of certiorari will be granted only on the appli- cation of a person aggrieved by the decision sought to be reviewed (Golden v. Botts, 12 Wend. 234 ; Hughes v. Stickney, 13 id. 280). One who had an interest but which has expired, as where the ten- ant's term has expired by lapse of time, cannot ap- ply {semUe, Kelly v. Israel, 11 Paige, 14T ; Mills -a. Hoag, 7 id. 18); nor can a purchaser from, or as- signee of, an aggrieved party, who became such pending or subsequent to the proceedings apply {id.) In case of the death of a party aggrieved, his heirs, executors, or administrators may apply (Beach V. Gregory, 2 Abb. 209; Martin v. Kanouse, id. 124 APPLICATION FOE 392; and see Anderson v. Anderson, 20 Wend. 585) ; and where there are several parties aggrieved, who are not united in interest, any one or some of them, less than all, may make the application, each on his own behalf (Mattison v. Jones, 9 How. 152 ; Fayette v. Oswego, 18 Wend. 515); but it seems that all who are united in interest must join in the ap- plication (The People v. Kensselaer Com. Pleas, 11 Wend. 174) ; but parties incapable of consenting, or absent from the State, although united in interest, need not join {id.) It seems, also, that it would be improper for parties not united in interest to join (Jaqueth v. Jackson, 17 Wend. 434 ; Easton v. Cal- endar, 11 id. 90). The person on whose application the writ issues, is called the relator. To entitle a party to make the application, it is not necessary that he should have appeared in the proceedings below (Northrup v. Jackson, 13 Wend. 85 ; Pike v. Gandall, 9 id. 149 ; McCord v. Keller, 5 N. Y. Leg. Obs. 418). Sec. 88. — Aj)pUcation for cerUorari. — The cer- tiorari cannot be applied for until after the adjudi- cation below has been actually made (Lynde v. Noble, 20 Johns. 80 ; Haines v. Backus, 4 Wend. 213 ; The People v. Peabody, 5 Abb. 194 ; S. C, 26 Barb. 437). But it may be applied for on the same day as that on which the proceeding before the magistrate terminates, and in that case the court probably would not inquire as to the time of THE OEETIOEAEI. 125^^ day it was applied for (Blydenburg v. Cotheal, 4 Corns. 418). There seems to be no specified time witliiii wliicli the writ must be applied for. It has been held that the application must be within two years after the termination of the proceeding sought to be reviewed, that being the period of limitation for bringing a writ of error (Elmendorf v. Mayor of ]Sr. Y., 25 Wend. 693 ; The People v. Mayor of JST. Y. 2 HiU, 9 ; and see Carter v. Newbold, 7 How. 166). The application for the writ is without notice- ex parte (Gardner v. Comm'rs of Warren, 10 How. 181) — ^founded on an affidavit stating the grounds of alleged error in the proceedings before the magis- trate (The People v. Supervisors of Alleghany, 15 Wend. 206). The applicant may, if he please, give notice ; in that case it should be a notice of eight days, and the notice should be accompanied with copies of the affidavits on which the party intends to move. On a motion, on notice, the opposite party may be heard, and may read affidavits to op- pose the allowance of the writ (The People v. Supervisors of Queens, 1 Hill, 195 ; The Pecfple v. First Judge of Columbia Co., 2 id. 398 ; Saratoga E. E. Co. V. McCoy, 5 How. 378 ; the case of Comm'rs of Warwick v. Judges of Orange Co., 9 Wend. 434, to the contrary, said to be misreported). If, on such motion, the court doubt as to the truth of controverted facts, it may, it seems, order a ref- erence to ascertain and report as to such facts (The People V. Oholwell, 6 Abb. 151). 126 ISSUING WEIT. Prior to the statute of 1847 (Laws 1847, ch. 280, s. 17), the application had to be made to the court either at a general or special term, and not at chambers. A judge at chambers could not allow the writ (The People v. Supervisors of Alleghany, 15 Wend. 206 ; and see Starr v. Trustees of Eochefe- ter, 6 Wend. 568 ; 1 How. 213 ; 2 id. 63). Whether or not, since that statute, a judge at chambers can allow the writ, seems doubtful. The statute has been held not to apply to the common-law writ (Gardner v. Comm'rs of Warren, 10 How. 181). The affidavit on which the application for the writ is based, should not, it seems, be entitled in the Supreme Court (Nichols v. Cowles, 3 CowSn, 345 ; Whitney v. Warner, 2 id. 499). Probably it is better not to entitle the affidavit at all. The re- marks heretofore made as to venue and jurat (ante, sections 19 and 26) apply to this affidavit. Sec. 89. — Issuing the cert/iora/ri. — The writ of certiorari cannot issue without leave (Comstock v. Porter, 5 Wend. 98). The leave is granted either by the entry of an order allowing the writ, or by an indorsement on the writ setting forth that it has been allowed by the court (Mott v. Comm'rs of Push, 19 Wend. 640 ; Gardner v. Comm'rs of War- ren, 10 How. 181). The entire omission of this in- dorsement, or any defect in it, may be cured by amendment {id.) ; and semble, although without an allowance either by order or indorsement served FOKM ASD SEEVICE. 127 with the writ the magistrate could not be com- pelled to make a return, yet he may make the re- turn if he choose to do so voluntarily (The People v. Onondaga Com. Pleas, 7 Wend. 516). A certiorari may issue to a magistrate after his term of office has expired, and after he has gone out of office (Harris v. Whitney, 6 How..l75 ; The Peo- ple V. Peabody, 15 id. 470 ; S. 0., 6 Abb. 228, over- ruling Peck V. Foot, 4 How. 425). Sec. 90. — The certiorari, its form, die. — The writ of certiorari is process ; it issues in the name of the people of the State, is directed to the magistrate by name, and after a recital of the proceedings before him, commands him to send, under his seal, the record of the proceedings and decision, with the process, pleadings, evidence, and other things touch- ing the same, to the justices of our Supreme Court in the judicial district, on a certain day (the first day of the then next ensuing term) with that writ. It is witnessed in the name of one of the justices of the court, and countersigned by the clerk. It need not be sealed. The remarks as to process {ante, pp. 71 and 76) apply to this writ. Seo. 91. — /Service of the certiorari. — ^The original writ itself, not a copy, must be served personally on the magistrate to whom it is directed ; and if the allowance is not indorsed on the writ, a certified copy of the order allowing the writ should be served with the writ (Mott v. Comm'rs of Eusb, 19 Wend. 128 STAT OF PEOOEEDmG-S. 640). The service may be made, it is thought, by any pei-son competent to prove it, or by the relator himself ; but see ante, page 79. Copies of the writ, allowance, and affidavit on which the writ was obtained should be served, with- in a reasonable time after the issuance of the writ, on the opposite party, or on the attorney who ap- peared for him in the proceeding sought to be re- viewed. Sec. 92. — Oertiorari does not stay the proceedr mgs. — At common law, and generally, the certio- rari suspended the proceedings of the tribunal or ■ officer to whom it was directed (Patchin v. Mayor of Brooklyn, 13 Wend. 664, and other cases) ; but the statute declares that a certiorari to review pro- ceedings to dispossess shall not stay or suspend such proceedings (T[ 22). Under this statute it has been held, that although the certiorari does not prevent the issuing of the warrant to dispossess, it nevertheless stays or suspends all collateral proceedings ; hence, after a certiorari the successful party below cannot, pending the proceedings on such certiorari, proceed to collect his costs or damages, by action or other- wise, or sue for the value of the use of the prem- ises ; and if at the time the certiorari issued a pro- ceeding or action was pending to recover the costs, &c., the service of the certiorari suspends such ac- tion or proceeding at the point to which it had arrived at the time the writ was served (Launitz v. SUPEESEDrnG WErr. 129 Dixon, 6 Sandf. 249). Where an execution has is- sued for the costs before the certiorari is served, the execution is not superseded by the certiorari, but, all action upon it suspended ; and if a levy has been made the officer should not relinquish it {id. Blan- chard v. Myers, 9 Johns. 66 ; Payfer v. Bissell, 3 Hill, 239 ; Smith v. Allen, 2 E. D. Smith, 259 ; Jones V. McCarl, 7 Abb. 418). Sec. 93. — Motion to quash or to supersede the certiorari. — After the issuing of the writ and before or after the return, the opposite party may move to quash or supersede the writ (Saratoga E,. E,. Co. v. McCoy, 5 How. 3T8 ; The People v. Judges of Westchester, 4 Cowen, 73 ; Ferguson v. Jones, 12 Wend. 241 ; The People v. Peabody, 5 Abb. 194 ; The People v. Supervisors of Alleghany, 15 Wend. 198 ; The People v. Supervisors of Queens, 1 Hill, 195 ; The People v. Mayor of New York, 2 id. 9). The magistrate to whom the writ is directed cannot move to quash it (Van Patten v. Onderdonk, 2 Johns, Cas. 108). If he considers it irregularly or improperly issued he may test its sufficiency by not obeying its mandate. It is said that the motion to supersede should be made 'before the return, and the motion to quash not until after the return (Saratoga R. K. Co. 'o. McCoy, 6 How. 378). Where the writ issued in an improper case,;,a motion to quash it was entertained after a 6* 130 QXrABHrBTG WEIT. hearing on the merits (The People v. Mayor of New York, 2 Hill, 9 ; and see 1 How. 141.) The motion may be made at special or general term. Perhaps, if the writ is returnable at a general term, the motion to supersede or quash should be to the general term. Tbe motion should be on a notice to the oppo- v v site party, of eight days, accompanied with copies of the affidavits, if any, intended to be used on the motion. No notice need be. given to the magistrate. The motion-papers should be entitled : " Supreme Court. The People, on the relation of ^. B. [the name of the relator^ against C. D. \the name of the opposite party] " (Peck v. Whitbeck, 2 How. YO). Where the motion is by an agent, the papers should be entitled in the name of his principal ("Williams V. Field, 1 How. 214). It was formerly good ground for quashing the writ that it was allowed by a judge at chambers (Gardner v. Oomm'rs of Warren, 10 How. 181 ; see, however, ante, page 126), or that it issued before the proceedings below had terminated (The People v. Peabody, 5 Abb. 194; S. C, 26 Barb. 437). In one case the writ was quashed because the affidavit on which it was obtained was prepared by the magistrate whose decision it was sought to review (The People v. Suffolk Com. Pleas, 18 Wend. 550). It is not ground for superseding the writ that the costs below have been paid (Clark v. Ostran- der, 1 Gowen, 437). Formerly, where a writ was EETTJEN TO WKIT. 131 quashed for error on its face and not on the merits, and before any return, there could be no writ of error to review the decision quashing the writ (The People V. Mayor of New York, 1 How. 90) ; and it would seem that no appeal lies to the Court of Ap- peals from a decision at general term on a motion to quash or supersede a writ of certiorari. Sec. 94:.— Death of justice 'before making a re- turn. — Where, after service of a certiorari and be- fore any return, the justice dies, the court will order the case to be heard on affidavits, requiring each party to serve the other with copies of the affidavits on which he relies (Harris v. Whitney, 6 How. 177 ; In re Shotwell, 10 Johns. 304 ; Seymour v. Web- ster, 1 Cow. 168). Sec. 95. — Filing return. Return, how compelled. — The magistrate to whom the writ is directed, having been duly served, is bound to make a re- turn on or before the day specified in the writ for making the return (Laws, 1847, ch. 470, s. 43). The return must be filed with the clerk of the county within which the proceedings were had {j,d. s. 20). If the magistrate neglects to make and file a return, he may be compelled by attachment. An attachment does not issue in the first instance, but has to be applied for on a notice of motion or order to show cause, founded on an affidavit of the facts 132 THE EETUBN of the isstiance of the writ, its service on the justice, search for return, and that no return has been filed. Sec. 96.-r-Th6 retwrn. — ^The justice shouldj pur- suant to the command of the writ, return the record of the proceedings before him (Wolfe v. Horton, 3 Cai. 86 ; Starr v. Trustees of Kochester, 6 Wend. 564 ; The People v. Mayor of New York, 2 Hill, 9 ; Nichols V. Williams, 8 Cow. 13), and all the evi- dence (Benjamin v. Benjamin, 1 Selden, 383 ; Sims V. Humphrey, 4 Denio, 185 ; see, however. The People V. City of Eochester, 6 How. 25 ; Haviland v. White, 7 id. 154 ; Burnett v. Scribner, 16 Barb. 628), stating, also, the evidence that was offered and rejected (Felter v. MuUiner, Col. & C. Cas. 427), and a complete history of the case (Mann v. Swift, 3 Cowen, 61). But the writ can bring up only such- proceedings as remain before the magistrate at the time the writ issues (The People v. Supervisors of Alleghany, 15 Wend. 198 ; The People v. Super- visors of Queens, 1 Hill, 195) ; and it should state only such facts as occurred in the particular pro- ceeding in question, and not facts which occurred in any other proceeding (Allen v. Horton, 7 Johns. 23 ; Kanouse v. Martin, 3 Sandf. 593) ; and the facts stated should be those known to the magis- trate and which occurred before him, and not such as he derived from information (Moseley v. Landon, 2 Johns. 193) ; nor need the conduct of the jury be returned (Anon. 3 Cai. 106). The statement of TO CEETIOEABI. 133 facts must be in tlie return itself, and not 'stated by reference to any other document (Mann v. Swift, 3 Cowen, 61) ; and in stating that any act was done, it is not sufficient to say it was done " as directed by the statute ;" it must be shown what was done (Farrington v. Morgan, 20 Wend. 207). A return, in order to sustain the validity of the proceedings before the magistrate, must show on its face not only that the magistrate had jurisdic- tion both of the subject-matter and of the person, but also, where the landlord's affidavit is contro- verted, that there is evidence to establish the facts controverted (The People v. Overseers of Ontario, 15 Barb. 286 ; Stryker v. Bergen, 15 Wend. 490 ; Hallenbeck v. Garner, 20 id. 24) ; and it must show affirmatively that the statute has been strictly pur- sued at every step (Farrington v. Morgan, 20 Wend. 207). Thus, if the jury retired, it should appear that a proper person was sworn to attend them (Van Doren v. Walker, 2 Cai. 373 ; Beekman v. Wright, 11 Johns. 442 ; Coughnet v. Eastenbrook, 11 id. 632 ; Hatch v. Mann, 9 Wend. 262) ; and probably that the landlord was called when the jury returned to deliver their verdict (Baum v. Tar- penny, 3 Hill, 75 ; Waring v. Loomis, 4 Barb. 484 ; Shove V. Kaynor, 3 Denio, 77). In construing the return the court only consider the facts returned, and will not assume the exist- ence of facts not in the return, particularly those facts essential to the jurisdiction of the magistrate 134 THE EETUKN. (The People •y.Soper, 3 Selden, 428 ; Allen v. Stone, 9 Barb. 60) ; but if all the essential facts are stated the court will presume such matters as concern the regularity, formal regularity, of the proceedings to have been regularly performed, it not apped,ring otherwise on the face of the return (Day v. Wilbsr, 2 Caines, 134 ; Kline v. Husted, 3 id. 175 ; Baum V. Tarpenny, 3 Hill, 75 ; Oakley v. Yan Horn, 21 Wend. 305 ; Waring v. Loomis, 4 Barb. 484 ; Staf- ford V. Williams, 4 Denio, 182 ; see, however, Her- rick V. Bedford, Col. & C. Gas. 484 ; Shove v. Eay- nor, 3 Denio, 77). Thus, where it appeared from the return that the jury retired and that a proper person was sworn to attend them, but only a part of the proper oath was stated in the return, nothing appearing to the contrary, the court presumed the whole oath was administered (Day v. Wilber, 2 Oaines, 134 ; see, however, Herrick v. Bedford, Col. & C. Oas. 484). The question whether or not the relation of landlord and tenant existed, is one of jurisdiction, and if the existence of the relation is controverted, the evidence returned must be suffi- cient to show the existence of such relation (Burnett V. Scribner, 16 Barb. 628) ; and so of any other fact stated in the affidavit of the landlord and contro- verted by the counter-affidavit (The People v. Over- seers of Ontario, 15 Barb. 286 ; Stryker v. Bergen, 16 Wend. 490 ; The People v. Goodwin, 1 Selden, 568 ; Morewood v. HoUister, 2 id. 309 ; Buck v. Binninger, 3 Barb. 391 ; Niblo v. Post, 25 Wend. 280). AMENDED KETURN. 135 The return must be subscribed by the magis- trate, but need not necessarily be sealed (Scott v. Kushman, 1 Cowen, 212)'^ It is to be filed in the clerk's office of the county in which the proceed- ings were had. In one case the return was set aside because pre- pared by the attorney for the relator (Fox v. John- son, 3 Cowen, 20) ; but subsequently it was held that the fact of the relator's attorney drawing the return, either as the amanuensis of the magis- trate (Phillips V. Caswell, 4 Cow. 505) or otherwise, no abuse being shown, did not furnish any ground for setting aside the return (Hunter v. Graves, 4 Cow. 537). Sec. 97. — Amended return. — The return cannot be contradicted by affidavit (Haines v. Judges of Westchester, 20 Wend. 625 ; and see The People v. Willis, 6 'N. Y. Legal Observer, 364). To contra- dict or alter the return, an amended return must be moved for. This motion must be on notice to the opposite party and to the magistrate, or by order to show cause, and an affidavit stating wherein the return is defective. The application for an amended return should be made without unreasonable delay, and unreasonable delay may amount to sufficient ground for denying the motion for an amended re- turn (Knapp V. Onderdonk, Col. & C. Cas. 426 ; More V. Bacon, id. 433). Either party may move for an amended return, and as often as need may 136 EREOK ra FACT. require. The magistrate'inay himself apply for leave to make an amended return (Simpson v. Car- ter, 5 Johns. 350). It is not usual to award costs on a motion for an amended return, but the court may award costs on such motion, against either party, or even against the magistrate (Bird v. Silsbie, 1 Cowen, 582). '■ Where the original and supplemental return were inconsistent, and a third return was made, stating that the supplemental return was incorrect, the court rejected both the supplemental and third returns (Eudd v. Baker, 7 Johns. 548). Sec. ^8. — Assignment of error m fact. — On the review of a decision or judgment by certiorari, the relator may assign errors in fact as to such mattera as cannot appear on the return (Harvey v. Eickett, 15 Johns. 87 ; and see Williams v. Mayor's C't of Albany, 12 Wend. 266 ; Post v. Black, 5 Denio, 66). Thus, a relator may assign for error in fact any mis- conduct of the jury (Anon., 3 Caines, 106 ; Harvey V. Eickett, 15 Johns. 87) ; the relationship of the magistrate to either of the parties (Post v. Black, 5 Denio, 66 ; and see Eggleston v. Smiley, 17 Johns. 133); that the party proceeded against was a consul of a foreign government (Valarino v. Thompson, 7 N. Y. (3 Selden) 576), or an infant (Maynard v. Downer, 13 Wend. 575), The assignment of errors in fact is by stating them at length in an affidavit, a copy of whicli- affidavit is served on the opposite HEAEING. 137 party before or at tlie time of serving notice of ar- gument on the return. The opposite party may, on the hearing, read affidavits controverting, quali- fying, or explaining the relator's affidavits. Seo. 99. — Hearing on the return* — ^Semble, the hearing on the return cannot be had until after the return-day named in the writ, although the return has actually been made (Sawyer v. Wood, 18 Wend. 631), nor until the return is complete (McAllister V. Sexton, 4 E. D. Smith, 41), for, on the hearing, the return is conclusive (Rawson v. Grow, id. 18 ; Trust v. Delaplaine, 3 id. 216). The hearing is at a general term, either in the district embracing the county where the return is filed or in a county ad- joining that county, except that if the return was filed in the city and county of New York, the hear- ing must be in the first district (Code, s. 346). The matter may be brought to a hearing by either party (Supreme Court Kule 47), upon a notice of eight days for personal service, and sixteen days for mail service (Code, ss. 402, 410, 411, 412, 413, Supreme Court Rule 39), for the first day of the term (Supreme Court Eule 42). The papers, i. e., the return, assign- ment of errors of fact, if any, and the points, must be printed by the relator {id. 46) ; and he must serve three copies of the return and assignment of errors of fact, if any, on, the opposite party, eight days be- fore the day for which the matter is noticed for ar- * On the hearing, the court reviews the evidence. (Benjamin v. Benjamin, 1 Selden, 383 ; Morewood «. HoUister, 2 id. 3G9.) 138 JUDGMENT COSTS. gument, or the opposite party may move to strike the matter from the calendar, and for judgment in his favor {id. 42, 43). Eight days before the com- mencement of the term for which the matter is no- ticed for argument, either party may, and the relator should, file with the clerk of the court a note of issue, stating the names of the parties and their attorneys, the nature of the matter to be heard, and the date of the issue, which is the time the question to be reviewed arose {id. 41 ; Code, s. 256). On this, the clerk places the matter on the cal- endar ; and it is entitled to preference on the morn- ing of any day during the first week of term (Su- preme Court Kule 47). At the commencement of the argument, the relator must furnish a printed . copy of the papers to each of the judges, together with a printed copy of his points ; and each party shall, at the commencement of the argument, de- liver to his adversary a printed copy of his points {id. 43). One counsel is heard on a side, and not more than one hour each, unless the court order otherwise {id. 54). Seo. 100. — Judgment. — ^The court may reverae or affirm the decision of the magistrate with costs, and, in case of reversal of a decision in favor of a landlord, may also order restitution of possession of the premises to the tenant (Tf 23). Sec. 101. — Costs. — ^Formerly, on a common-law certiorari, neither party had costs (Baldwin v. DAMAGES. 139 WheatoD, 12 Wend. 263 ; The People v. Overseers of Bartow, 6 How. 25), but they were giyen by stat- ute on a review of proceedings to dispossess (T[ 24), and under this statute the court might give costs on a reversal, whether they awarded a restitution or not (Chretien v. Doney, 1 N.Y. [1 Corns.] 419), and a judgment for costs on reversal related back to the original decision (Reynolds v. Lammond, 3 Johns. 640). JSTow costs are allowed by the Code of Pro- cedure, section 318 (Haviland v. White, 7 How. 154 ; and see The People v. Sturtevant, 9 id. 304 ; 3 Duer, 304). Sec. 102. — Damages. — Where the landlord's pro- ceeding is quashed, or the decision in his favor re- versed on certiorari, the tenant or lessee may re- cover, by action against the person making appli- cation for his removal, any damages he may have sustained by reason of such proceedings, with costs, in an action on the case (^ 24). Sec. 103. — Sestitmtion and re-resUtuUon. — Whenever any such proceedings brought before the Supreme Court by certiorari shall be reversed or quashed, the court may award restitution to the party injured, with costs, and may make such or- ders and rules, and issue such process, as may be necessary to carry their judgment into effect (^ 23 ; Smith V. Moffat, 1 Barb. 65) ; and restitution may be awarded to the tenant although the lease contains 140 EESTITUTION. a covenant that, upon upon failure to pay the rent upon the time appointed, the estate of the lessee and all his interest in the demised premises shall, from thenceforth, cease and be absolutely void ("Wolcott V. Schenk, 16 How. 450). But where, be- fore the reversal on certiorari, the term of the tenant has expired by effluxion of time, there a restitution will not be ordered (Chretien v. Doney, 1 Corns. 420). Where there has been a restitution, and the de- cision upon which such restitution was had is after- wards reversed, a re-restitution will be awarded of course (The People v. Shaw, 1 Cai. 126 ; In re Shot- well, 10 Johns. 304). Where the return shows the judgment or decision has been executed or enforced — as, that possession of the premises has been given, or the cost of the judgment paid — the restitution may be ordered in the judgment of reversal ; but where it does not ap pear on the return that the judgment below has been enforced — semJZe, before a restitution is ordered — the opposite party is entitled to be heard in opposition. (Sheridan v. Mann, 5 How. 201. See Safford v. Stevens, 2 Wend. 158.) Sec. 104. — Beview in Cowrt of Appeals. — ^The parties may stipulate that the judgment of the Su- preme Court shSill be final, and such a stipulation would be binding. (Townsend v. Masterson Stone Dressing Co., 15 N. Y. [1 Smith], 687.) But, in the REVIEW BY APPEAL. 14l absence of any such Btipulation, the decision at general term of the Supreme Court may be re- viewed by writ of error in the Court of Appeals, The act in relation to appeals in special proceedings (Laws 1854, ch. 270) applies only to appeals from the special to the general term of the Supreme Court. (See what is said in The People v. Sturt- evant, 3 Duer, 619 ; 9 How. 304 ; the review was by writ of, error in Giesler v. Acosta, 5 Selden, 22T.) II. — The Review by Appeal.* Sec. 105. — Review by a/ppeoH, m_ what cases. — The review by appeal to the county court of the * By the Revised Statutes (2 R. S. 268), an appeal from a judg- ment rendered by a justice of the peace in a civil action was not of course, and was effected as thus : The party aggrieved presented to a justice of the Supreme Court an affidavit setting out his grounds for appeal ; if the judge deemed the alleged grounds sufficient, he endorsed on the affidavit an allowaruse of the appeal ; the affidavit so endorsed was delivered to the justice, and with it a bond to pros- ecute the appeal and to pay judgment appealed from and costs of appeal. The appellant at the same time paid the costs of the suit, and for the return ; and no appeal was valid unless all these partic- ulars were observed. By the Code of Procedure (Laws 1848, ch. 379), which took effect 1st July, 1848, all statutes then in force pro- viding for the review of judgments in civil cases rendered by courts of justices of the peace were repealed, and it was declared that the only mode of reviewing such judgment was that thereby prescribed {id. 8. 301). This, on the assumption that the phrases "judgments rendered by justices of the peace" and "judgments rendered hy 142 REVIEW BY APPEAL. county in which the proceeding was had, can only be had in the case of a proceeding before a justice of the peace. Whether, where the proceeding is courts of justices of the peace " had the same meaning, was con- ceded to be a repeal of the provisions of the Revised Statutes above referred to. The mode of appeal provided by the Code of Procedure was {id. ss. 303, 306) : The service by the appellant on the respondent of an affidavit stating the proceedings before the justice the grounds of appeal, and a notice of bringing the appeal on for argument. This was all that was necessary to an appeal, unless a stay of execution was required. Next in order is the law providing for appeals from the judgment of a justice of the peace in proceedings to dispossess (Laws 1849, ch. 193). It passed 3d April, and took effect 23d April, 1849, and enacts that such appeals shall be " in the same manner, and with the lite effect, and upon like security, as appeals from the judgment of justices of the peace in civil actions," except that the decision of the county judge shall be an affirmance or reversal only, aaid be final. And in addition to the security for such judgment, as required by law, in order to stay the warrant or execution, there shall, on appeal by the tenant, be given security for the payment of the accruing rent, and "jio appeal shall be allowed imless such security for said judgment shall be given, and approved by the jvdge, at the time of allowing such appeal, and served on the justice with the affidavit for appeal." The Code of Procedure, in the part regulating appeals in civil cases from judgments by courts of justices of the peace, was amended by an act passed 11th April, and which took effect 1st May, 1849 (Laws 1849, ch. 438), and subsequently in the years 1851, 1852, \%t>1, and 1858. It is apparent that the framers of the law of 1849, providing for appeals from judgments in proceedings to dispossess, had in view the mode of appeal provided by the Revised Statutes, and not that provided by the Code of Procedure ; for by the Code of Procedure there was required neither an allowance of the appeal, nor security. This renders "it difficult to construe the law of 1849, ch. 193, to WflO MAT APPEAL. 143 before a justice of the peace, an appeal is the only mode by which the proceeding can be reviewed, or whether, in such case, the remedies by appeal and by certiorari are concurrent, is considered ante, Section 85. Sec. 106. — Who may appeal. — Any party ag- grieved by the judgment may appeal ; but only a party who is aggrieyed — that is, prejudicially af- fected by the judgment — can appeal. The party appealing must, therefore, be either the party who prosecuted the proceeding (the landlord), or the party against whom the proceeding was prosecuted (the tenant). By tenant, being intended every per- son who, was entitled to show cause against the pro- ceeding (Section 50, ante). And in cases where more than one person was entitled to show cause before the justice, any one of those persons would, it seems, be entitled to appeal from the judgment. It is doubtful if any appeal can be had by a party who did not appear before the justice. (Adams v. Oaks, 20 Johns. 282 ; Jones v. Kipp, 7 N. Y. Legal Observer, 91 ; 1 Code Eep. 119 ; Pope v. Dinsmore, 8 Abb. 429, and note). make it consistent with the Code of Procedure. The next question is, Do the subsequent amendments to the Code of Procedure apply to these cases ? We conclude that they do ; and this seems to be the view taken in Deuel v. Rust, 24 Barb. 438. We haye, in the text, endeavored to reconcile the requirements of the law of 1849, ch. 193, with the existing provisions, of law regulating appeals from judgments rendered in courts of justices of the peace.- 144 TIME TO APPEAL. In the case of several landlords, it can scarcely happen but that if one is aggrieved all must he ag- grieved, in which case all must appeal. Probably the rule is, that all who are jointly ag- grieved must unite in the appeal ; and that those who are not jointly but only severally aggrieved^ may appeal separately or together, at their option ; in the latter case, perhaps, they should not unite in the appeal. Sec. 107. — Withm what time to appeal. — ^Where the appellant is the tenant, then if he was personally served with the summons, or if he appeared before the justice, he must appeal within twenty days after the judgment is rendered ; but where he was not personally served with the summons, and did not ap- pear before the justice, then he has twenty days after personal notice of the judgment within which to ap- peal (1 29). Where the appellant is the landlord, he must, in every case, appeal within twenty days after the judgment is rendered. In all cases, therefore, where the decision is in favor of the landlord, and any person to whom the summons is directed is not personally served with the summons and does n-ot appear to show cause, he should, as soon as possible after the judgment, be personally informed thereof, in order to limit his time for appealing. The notice of the judgment need not be in writing, although where notice is to be given it is always better to give it in writing, as being easier of proof. EEQTTI8ITES TO APPEAL. 145 The appeal should not he taken, i. e., the notice of appeal served, until after the judgment is ren- dered (Bradley v. Yan Zandt, 3 Code Eep. 217 ; McMahon v. Harrison, 6 How. 360), but it may be taken immediately after the judgment is rendered, and before its entry in Ithe docket (Griswold v. Van Deusen, 2 E. D. Smith, 178) ; and if the appeal is taken on the same day as that on which the judg- ment is rendered, the appellate court will not in- quire which was first, the entry of the judgment or the appeal, but will consider the rendition of the judgment to have preceded the taking the appeal (Blydenburg v. Cotheal, 5 How. 200 ; Jones v. Por- ter, 6 id. 286). Sec. 108. — Bequisites to an appeal. — ^The requi- sites to an appeal are, (1) a written notice of appeal, (2) due service of such notice, (3) payment of the costs of the return, and (4) security (TT[ 28, 29, 30). The appeal will be ineffectual unless all these requi- sites are observed and duly complied with. Due compliance with one or more of these requisites, without complying with all, will be unavailing. As to the first requisite, the notice of appeal, that must positively be served within the time prescribed, or the right of appeal is irretrievably lost. No court or officer can extend the time for serving the notice of appeal, nor relieve a party fi-om the consequences of omitting to make timely service of such notice. (Eenouil v. Harris, 2 Code Kep. 71 ; Enos v. 7 - - 146 • NOTICE OF APPEAL. Thomas, 1 Code Kep. N. S. 67 ; Lindsay v. Almy, id. 139 ; Eowell v. McCormick, id. 73 ; The People V. Eldridge, 7 How. 108 ; Fry v. Ben- nett, 16 id. 385; Hanse v. N. T. Cent. E.,E. Co., 14 «■<:?. 430 ; Humphrey v. Chamberlain, 1 Kernan, 274; Wart v. Van Allen, 22 N. T. 319.) As to tlie other requisites to an appeal, it is pro- vided that, when a party shall give, in good faith, notice of appeal, and shall omit through mistake to do any other act necessary to perfect the appeal or to stay the proceedings, the court may permit an amendment on such terms as may be just. (Code, s. 327.) The court which may permit the amend- ment is the appellate court. Where there is a fail- ure to give in good faith notice of appeal, a written notice, there can be no amendment allowed. (The People V. Eldridge, 7 How. 108.) Where an oral notice of appeal was given, it was held not to be sufficient to entitle the party to an amendment. (Id.) Where the notice of appeal was duly served, but the appellant failed to file security, he was al- lowed to file it nunc pro tunc. (Mills v. Thursby, 11 How. 129.) And so where the security was not sufficient, the appellant was allowed to amend it. (Sternhaus v. Schmidt, 5 Abb. Q%>) Seo. 109. — Notice of appeal ; its form, amend- ment, service. — ^The notice of appeal must he in writing. A verbal notice is not sufficient. (The People ■y. Eldridge, 7 .How. 108.) Besides stating that the party appeals, from what he appeals, and nS FOEli, Etc. 147 to what tribunal, it must state the grounds upon which tlie appeal is founded. A notice of appeal not stating any grounds, would probably be a nullity. (Christman v. Paul, 16 How. 17.) The ab- sence of sucb statement would be sufficient cause for dismissing the appeal {id. ; Swatz v. Bendall, 2 E. D. Smith, 123 ; Griswold v. Van Deusen, id. 178; Sullivan v. McDonald, 2 Sand. 632, note; Derby v. Hannin, 15 How. 32), or an immediate affirmance of the judgment. (Davis v. !N". Y. & Erie E. E. Co., 1 Hilton, 543 ; Lee v. Schmidt, id. 537.) It must specify with reasonable certainty the al- leged error, and whether it is in the process, the affidavits, the proceedings on the trial, or other- wise ; so that the adverse party, as well as the jus- tice, may be fairly apprised of the nature of the ground on which the appeal is based. (Lee v. Schmidt, 6 Abb. 183 ; Williams v. Cunningham, 2 Sand. 632 ; Thompson v. Hopper, 1 Code Eep. 103 ; Mayor of K Y. v. Green, 1 Hilton, 393.) This is said to be necessary to enable the justice to make a proper return (Webster v. Hopkins, 11 How. 140), and to enable the respondent to prepare for argu- ment, or to procure an amended return, if the original is defective as to any ground of appeal. (Morton v. Clarke, 11 How. 498.) The following statements of grounds of appeal have been held insufficient : " that material testi- mony offered on the trial was excluded;" that " material testimony was admitted which ought to l48 SEEVIOB OF have been excluded ;" that " the evidence was in- sufficient, and the judgment against the law" (Deuchars v. Wheaton, 16 How. 471) ; that " the judgment is clearly against the law and the evi- dence." (Derby v. Hannin, 5 Abb. 150 ; 15 How. 32 ; Kelty v. Jenkins, 1 Hilton, 73.) Only the grounds stated in the notice will be considered on the appeal (Lee v. Schmidt, 1 Hilton, 637) ; and where the ground stated was that the judgment was against the weight of evidence, the court would not allow the appellant, on the argu- ment, to insist that the judgment was contrary to evidence, saying it was a diflferent ground from that stated in the notice of appeal. {Td.) The appellant may, by leave of the appellate court, amend his notice of appeal, even to th& 'ex- tent of inserting therein the grounds of appeal. (Irvin V. Muir, 4 Abb. 133 ; 13 How. 409.) Sec. 110. — Service of notice of appeal. — The no- tice of appeal must, within the time allowed within which to appeal {amte, sec. 107), be served (1) on the justice personally, if living and within the county, or (2) on his clerk, if there be one, and (3) on the respondent personally, or by leaving it at his residence, with some person of suitable age and dis- cretion, or, in case the respondent is not a resident of such county, or cannot, after due diligence, be found therein, then the notice may be served on the attorney or agent, if any, who appeared for the re- NOTICE OF APPEAL. 149 spondent before the justice ; the service on such attorney being in the same manner as prescribed for service on the respondent. If neither the re- spondent nor such attorney or agent can be found in the county, the notice may be served on the respondent by leaving it with the clerk of the appel- late court. .(T[ 30.) Where the justice is dead, or absent from the county, the notice of appeal may be served on him by leaving it with the clerk of the county. (*j[ 36.) It has been said that notice can- not regularly be served on the attorney or agent if the respondent is, in fact, a resident. (Earle v. Chapman, 3 E. D. Smith, 216 ; but see Loescher v. Nordmeyer, 13 How. 146 ; 3 Abb. 244.) An affi- davit of the appellant stating, on information and belief, that the respondent is a non-resident of the county is s^^SS.oientjpr^ma facie evidence of the fact (Earle v. Chapman, 3 E. D. Smith, 216) ; but an affidavit which stated an inquiry for the respondent at her last place of abode within the county, and in- formation there that she had left and gone to serv- ice, the informant did not know where, was held not sufficient to show the respondent to be a non- resident. (Duffy V. Morgan, 2 Sand. 631.) Where the respondents are joint owners of, or partners as to, the premises, service of the notice of appeal on one wiU suffice for all. (See Greisler v. Acosta, 5 Selden, 227; Mandeville v. Keed, 13 Abb. 173.) Seo. 111. — Pa/yvfwrii of costs crndfeefor there- 150 SECUEITY twn.— The costs and fee for tlie return must be paid to the justice, or to his clerk, at the time of serving the notice of the appeal. (Van Heusen V. Kirkpatrick, 1 Code Eep. IST. S. 74 ; 6 How. 422 ; Loescher v. Nordmeyer, 13 How. 146 ; 3 Abh. 244.) The justice may accept the costs and fee after the notice of appeal served, and he may waive alto- gether the payment of the fee for the return (Scher- merhorn v. Van Vorst, 1 Code Eep. l*f . S. 400 ; 5 How, 458) ; but, iinless the costs and fees are paid or tendered at the time of Serving the notice, the justice cannot afterwards be compelled to receive them, nor to make a return. (Van Heusen v. Kirk- patrick, 1 Code Eep. JST.^. 74 ; 5 How. 422.) Sec. 112. — Seourity. — The security required is a written undertaking, executed by one or more suffi- cient sureties, approved by the county judge, to the effect that, if judgment be rendered against the appellant and execution thereon be returned unsat- isfied, in whole or in part, the sureties will pay the amount unsatisfied. {*['[ 28, 32.) If the appeal is by the landlord, or by a tenant who does not desire to stay the issuing of the war- rant, no further security is necessary. As, on an appeal, there can be no restitution, it can scarcely happen that a tenant will appeal, unless he intends to stay the issuing of the warrant — ^for, otherwise, his appeal, woulfiLbe futile. To stay the issuing of the warranty the under- ON APPEAL. 151 taking should also provide " that the appellant will pay all rent accruing and to accrue upon the prem- ises subsec^uent to the application to dispossess." (1 27.) li is supposed that the undertakings for the costs and for tlie rent may be by one instrument, or by separate instruments. It seems the undertaking need not to be executed by the appellant. As to the number of sureties and the amount in which they must justify, these seem altogether in the discretion of the justice. Where the undertaking is for the costs only, one surety justifying in one hundred dollars over and above all his debts and liabilities and property exempt by law from execution, is usually deemed suflBcient. Where the undertaking is to stay the warrant, there the justice is guided as to the number of the sureties and the amounts in which they must justify by the amount of the annual rent and the probable time that will elapse before a decision on the appeal can be obtained. The undertaking, whether for costs or rent, or both, need not, it is thought, express any considera- tion, or be sealed ; although it might promote the security of the respondent to require the undertaking to be under seal. The undertaking should be proved or acknowl- edged before a commissioner of deeds or notary public, or some other officer authorized to take the 152 STAT OF acknowledgment of deeds of real estate. The under- taking must also be approved by the justice, and left with him or his clerk, to be filed at the time of serving the notice of appeal. (Tf 28.) There seems to be no provision for reviewing the approval of the undertaking by the justice, nor for excepting to the sureties, or requiring them to justify otherwise than expa/rte by affidavit. Sec. 113. — Stay of proceedmgs Tyy the a/ppml. — The appeal, if perfected before the warrant or exe- cution issues, stays the issuance thereof ; but if the appeal is not perfected before the warrant or execu- tion has issued, then the service of a copy of the undertaking or undertakings, certified by the justice to be a copy of the undertaking or undertakings filed with him, upon the officer holding the warrant or execution stays further proceedings thereon. [1 33]. The stay, after a warrant or execution has issued, is a stay only of fwrther proceedings ; that is, it arrests or sta/ys the proceedings at the point at which they were when the copy of the undertaking is served. Thus, in the case of an execution, if before the undertaking is served a levy has actually been made, the levy is not discharged, nor can the appellant re- quire the goods levied upon to be returned to his custody during the pendency of the appeal (Smith «. Allen, 2 E. D.-Smith, 259). But the previous levy must have been made in good faith before perfect- PEOCEEDINGS. 153 ing the appeal ; as, where an execution issued to a constable on the 4th, and on the 5th the appeal was perfected and notice served on the respondent, and afterwards and before service of a copy of the under- taking on the officer, he, by the respondent's direc- tion, made a levy, the appellate court on motion set aside the levy (Jones i). McCarl, 7 Abb. 418). The same rule as to stay of proceedings applies to a warrant as to an execution ; and from this it will be seen how necessary it is for a tenant desiring to appeal to do so before the warrant issues, or, at farth- est, before it is executed. Where the judgment is adverse to the tenant, and he states his intention to appeal, it is usual and very proper for the justice to allow him a reasonable time to perfect his appeal, and suspend the issuing of the warrant in the mean time. Tenants, however, must bear in mind that this indulgence is purely optional with the jus- tice. He should grant it, but he is not obliged to do so. Sbo. 114. — Dismissal of appeal. — Any irregiilar- ity in taking the appeal — as, that the notice was not, in due form or not, duly served, or the costs or fees not paid, or security not duly given — should be taken advantage of by a motion to dismiss the appeal, either on notice or order to show cause (Swatz v. Bendall, 2 E. D. Smith, 123 ; Griswold v. Van Deusen, id. 178 ; Nye v. Ayres, 1 id. 533 ; Mills v. Shult, 2 id. 139). No irregularity will be consid- 7* 154: RET0EN. ered on the hearing of the appeal (Nje v. Ayres, 1 E. D. Smith, 633). ' But if the act omitted be such as renders the pro- ceedings a nullity, and not merely irregular, so that in fact there is no appeal, as where no notice of ap- peal has been served on the respondent, although served on the justice, or no costs or fee paid, or no security given, there the respondent should proceed as though no appeal had been taken, and not move to dismiss (Schermerhorn v. Golief, 1 Code Kep. N. S. 290 ; The People v. Eldridge, 7 How. 108). Sec. 115. — The rebwrn. — In not less than ten days, and within thirty days, after service of the notice of appeal, the justice is to make his return to the ap- pellate court, of the testimony, proceedings, and judgment, and file the same in the county court [1 36]. The observations on the return to the certiorari will apply to the return on an appeal, as to its form, except that to a return on an appeal must be ap- pended the notice of appeal served on the justice. It seems the omission of this would be ground for dismissing the appeal (Oabre v. Sturgis, 1 Hilton, 160). If the justice neglects to make a return within thirty days after the appeal is perfected, on an affida- vit stating when the appeal was perfected, showing that more than thirty days have elapsed, and that no return has been filed, the county court will grant AMENDED BETUEN. 155 an order on the justice to file a return within a cer- tain number of days, or show cause on a certain day named why a return has not been filed. A copy of this order should be served on the justice and on the respondent, or a notice of not less than eight days may be served on the justice and on the respondent that a motion will be made on a day named for an order that he file a return, unless before that time a return is filed. If the justice does not comply with the order of the court to file a return, obedience to the order may be compelled by attachment [^f 38]. A justice who has gone out of office is required to make, and may be compelled to make, a return in the same manner, and with the like effect as if still in office [t 37]. Sec. 116. — Amended return. — If either party is dissatisfied with the return filed, he may move in the county court for an order on the justice to make an amen ded return, or a further return. The motion is on notice of eight days, or on an order to show cause, served on the respondent and on the justice. The application is founded on an affidavit showing the alleged errors in the return filed. If an amended return is ordered, the order should be promptly served upon the justice and on the opposite party. If an amended return, or further return, is filed, and either party is dissatisfied with it, he may pur- sue the same course to get it amended as in the case 156 NOTICE OF of the original return, and^ so as often as may be necessary. Compliance with the order for an amended or further return can be enforced in like manner as the original return, and the court is always deemed open for the purpose of compelling such further or amended return [^ 38]. Where &fv/rth&r return is ordered, then the jus- tice need return only the additional Qr further matter ordered ; but where an amended return is ordered, it will not be proper merely to return addi- tional matter, but there should be an entirely new return. Otherwise the court may be embarrassed to know what is the state of facts on which to de- cide. A party desiring a further or amended return should move promptly ; an unreasonable delay ^i making the motion may be considered a sufficient reason for denying the application. An order for an amended or further return stays the proceedings until such retui-n is filed. It is the duty of the party obtaining the order to enforce obedience to it within a reasonable time, and a neglect in this particular would be ground for rescinding the order for a further or amended return. Seo. 117. — Notice of argwment of appeal. — The return being complete, either party may notice the appeal for argument. The notice to be of not less than eight days. Either party may file a note of issue and have the appeal placed on the calendar ; AEGUING APPEAL. 157 being on the calendar, it cohtinnes thereon without further notice until disposed of. That is to say, that if not disposed of at the term for which noticed, it re- mains on the calendar for the next ensuing term or terms without any further action of the parties tl 40]. It is not necessary that both parties should notice ^he appeal for argument ; it may be brought on by one party upon the notice of his opponent. Thus, where the appellant only gave notice of argument, and on the appeal being reached, was not in attend- ance, whereupon the respondent took a judgment of affirmance expa/rte, the New York Court of Common Pleas held that the respondent was regular, and denied a motion to set aside the judgment so taken (Townshend v. Keenan, 2 Hilton, 544; and see Constant v. Ward, 1 Calif. Kep. 333). If neither party bring the appeal to a hearing before the end of the second term of its being on the calendar, the court is required of its own motion to dismiss the appeal, unless it continue the seme by special order for cause shown, on motion of one of the parties to the appeal [T[ 40]. This dismissal of the appeal by the court of its own motion is said to be a ministerial, not ajv^cial act, and can be done only where the appeal is prop- erly on the calendar ; and that an appeal is not properly on the calendar where an order is in force for an amended return. Where, therefore, after an ord«r for an amended return, and before compliance 168 HEAillNG. therewith, and while the order remained unrescinded, the appeal was placed on the calendar, and not be- ing brought to a hearing before the end of the second term, the court, in absence of the parties, and of its own motion, dismissed the appeal, it was held by Paige, J., that such dismissal was unauthorized and a nullity, and he allowed a mandamus to be issued^ to the county court requiring it to proceed and hear the appeal as if no such dismissal had taken place (The People v. Clinton County Court, 13 How. 277). Sec. 118. — The hearmg. — The hearing is had upon the original return on file ; no copy need be fur- nished to the court [T 41] or to the respondent, ex- cept in the case of an appeal founded on an error in fact ; in those cases, in addition to the return, the court must be furnished with the original aflBdavits by which the error is made to appear, and the counter affidavits of the respondent (Beebe v. Roberts, 3 E. D. Smith, 195) and may examine witnesses viva voce as to any disputed fact. If the hearing takes place in the Supreme court, on a transfer from the county court, it must be at a special term or circuit court in the county in which the premises the subject of the proceeding are situate. If, on the case being reached, the appellant does not appear, the judgment will be affirmed on default, without any examination of the merits ; and it has been held that if the respondent does not appear, COSTS. 169 the judgment will in like manner be reversed as of course (Whitney v. Bayard, 2 Sand. 634). It would seem, however, to be the more proper course not to reverse a judgment unless for cause, although the respondent should fail to appear. / On the hearing, the court must either affirm or ^ -reverse the judgment ; it has no authority to do more nor less. It cannot order a new trial, nor such a judgment as it siipposes should have been ren- dered by the justice (Eraser v. Child, 4 E. D. Smith, 243), nor award restitution (The People v. Bigelow, 11 How. 83). The judgment always carries costs in favor of the prevailing party (Logue v. Gillick, 1 E. D. Smith, 398 ; Hahn v. Yan Doren, id. 411 ; Main v. Eagle, id. 621 ; Chapin v. Churchill, 12 How. 367). Sec. 119. — Costs on the ajppeal. — The costs on the appeal are : To the appellant, on reversal, $15 and disbursements. To the respondent, on affirmance, $12 and dis- bursements. Where the appeal is dismissed by the court of its own motion, for not being brought to a hearing, no costs are allowed to either party [Tf 47]. The amount of costs is the same in cases trans- ferred to the supreme court by reason of the incom- petency of the county judge to hear the appeal (O'Callaghan v. Carroll, 16 How. 327 ; Taylor v. Seeley, 4 id. 314 ; 3 Code Eep. 84.) 160 EFFECT OF EEVEBSAl. The costs are adjusted by the county clerk of the county, on a notice of two or five days, as in an ac- tion (Code, s. 311). Sec. V2,0.— Judgment-roll.— Th.& judgment-roll consists of the return of the justice and the judg- ment on the appeal [T[ 43]. ^ Sec. 121.— Judgment is final. — ^The judgment, whether of reversal or affirmance, and whether ren- dered in the county court or the supreme court, is final [Tf 27]. By fim,al is meant that it is ultimate and conclusive, and cannot be reviewed by appeal (Deuel V. Rust, 24 Barb. 438). Seo. 122. — Costs how collected. — ^The costs of the appeal included in the judgment may be collected by execution in like manner as the costs in an action. Seo. 123. — Effect of reversed. — ^The effect of a re- versal is to remit the parties to the same position as they occupied before any proceedings were com- menced. The reversed judgment, whether it was in favor of the landlord or the tenant, will neither pre- vent the landlord commencing proceedings anew, nor bar any defence thereto which the tenant had at the time the first proceeding was instituted. A reversal of a judgment makes it as though no such judgment had ever existed (1 Lev. 310). APPENDIX FOEMS. 1. — Notice to determine tenancy at will or at sufferance. (See ante, p. 40, note.) To A. B. Take notice you are hereby required to remove from the premises now occupied by you as tenant at will [or, by sufferance] thereof to me, at or before the expiration of one month* from the service on you of this notice. [Dated and signed.] 2. — Demand by landlord of payment of rent or surrender of possession of premises. \ {Ante, pp. 46 and 50.) To A. B. Take notice you owe me the sum of dollars, for'[a montKs or a quarter's rent, as the case may 6e,] due on the day of of the premises now occu- * A notice to remove in thirty days, served in a month which contained only thirty days (April) was held to be a month's notice. (McGuire v. Ulrioh, 2 Abb. 28.) f Considering the doubts that exist as to the reqiiisites of a mere demand of the rent to entitle. the landlord to this remedy, it seems advisable to make a demand of payment or possession in all cases. 162 APPENDIX. pied by you, situate and being No. . street, in the city of [or other description of the premises,^ and I require payment of such rent to me within three days after service of this notice on you, or that you sur- render possession of said premises. [Date and signature, and add place of residence or 3. — Demand hy agent of payment of rent or surrender of To A. B. Take notice, you owe X. Y. the sum of $ for a month's rent, due on the day of of the premises now occupied by you as tenant to said X. Y., situate and being [describe premises,] and that I am au- thorized by said X. Y. to demand of you payment of said rent, or that you surrender possession of said premises ; therefore I require you to pay said rent to me within three days after service of this notice on you, or that you surrender possession of said premises. [Dated, &c.] [Signature and place of residence or business.] 4. — Affidavit for summons for holding over by tenant at will or by sufferance* State of New York, City and County of New York, ss. : A. B., of said city, makes oath and says that he is landlord of C. D. in respect of the premises after de- * There seems to be no provision for proceeding against a tenant at will or by sufferance for non-payment of rent. APPENDIX. 163 scribed. [Insert statement of how the tenancy was created.] That said CD. has, ever since the day of [date when tenancy commenced] up to and until the day of on which last-named day the said tenancy was determined, continued in the possession and occupation of said premises as tenant thereof [at will or hy superance] to deponent. f That deponent did, at [insert place of service,] serye the notice, a copy whereof is hereto annexed, on C. D., the person to whom the same is directed, by then and there [delivering the said notice to and leaving the same with the said C. D. personally, or, delivering the said notice to and leaving the same with a person of proper age at the time residing on the said premises, or, affixing said notice on a conspicuous part of said premises, where it might be conveniently read ; and deponent says that, before and at the time of affixing said notice, the said C. D. could not be found, and there was (no person, or no person of proper age) residing on such premises.] That said C. D. has not removed from said premises, as required by said notice, but holds over and continues in possession of said premises after the expiration of said tenancy without the permission of deponent. A. B. Sworn, &c. f This paragraph, at the time the landlord was disqualified as a witness on his own behalf, was comprised in a separate affidavit. The like course may stUl be pursued ; of course, where it is com- prised in a separate affidavit, it need not be also inserted in the affidavit of the landlord. Where this paragraph is omitted, insert in its place "That said tenancy has be0n determined by notice." "^ 164 APPENDIX. 5. — Affidavit of service of notice to determine tenancy at will or by sufferance. City and County of New York, ss. : X. Y., of said city, makes oath and says that he did, on the day of 1862, at \insert the place of service,'] serve the notice, a copy whereof is hereto an- nexed, on C, D., the person to whom the same is directed, [by then and there delivering the said notice to and leav- ing the same with the said C. D. personally, or, by then and there delivering the said notice to and leaving the same with a person of proper age* at the time residing on the premises described in said notice, or, by then and there affixing said notice on a conspicuous part of the premises in said notice described, where it might be con- veniently read ; and deponent says that, before and at the time of affixing the said notice as aforesaid, the said C. D. could not be found, and there was (no person, or, no person of proper age) residing on such premises.] 6. — Affidavit for summons on non-payment of rent. State of New York, ) County of City of j ®®- C. D., of, &c., makes oath and says that he [is land- lord, or, is agent in this behalf duly authorized of X. Y., who is the landlord] of the premises hereinafter described ; that on or about the day of 18 he, * This would be sufficient, but it would be better to add, where possible, the name and age of the party served, as thus : namely, one J. E,, of the age of years, or thereabouts. It seems un- necessary to state the name of the person served. (Tremper v. ■Wright, 2 Gaines' Rep. 101.) APPENDIX. 165 as sueh [landlord, or, agent,] let and rented unto A. B. [by parol, or, by agreement, or, by lease, dated the day of and made between said C. D., of the first part, and said A. B., of the second part, as in the agreement or lease,\ all that [description of described premises, see ante, sec. 23,] for the term of [one year, or as the case may be,\ to commence on the day of 18 at the [yearly or monthly, as the case may ie,] rent of dollars, payable [monthly, or quarterly, or as the case may be,] on the [ day of each and every month, or, on the 1st days of February, May, August, and November in each year, or as the case may be ; and if the payment is to be in advance, add, in advance ;] that said A. B. entered into the possession and occupancy of,ff and still continues, by himself, and by P. Q. and R. S., his under-tenants, to occupy and hold said prem- ises under and by virtue of said letting ; that said A. B. has made default in the paymentf ff of the rent of said premises, to wit : the sum of dollars, for [one month's, or, one quarter's, as the case may be,] rent of said premises, which became due and payable on the day of 1862, pursuant to the agreement under which such premises are held ; that since the said rent became due and payable as aforesaid, [payment thereof has been duly demanded from said A. B., or, three days' notice, in writing, requiring the payment of such rent, or possession of the said premises, was, on the day of (date of service,) by said C. D. (name of the person entitled to such rent,) served on said A. B. (name of the person owing the rent, and describe how served ;)] and that said A. B. has not paid said rent, nor surrendered posses- sion of said premises, but said A. B., as tenant of said 166 APPENDIX. premises, and P. Q. and R. S., as his under-tenants, or assigns, or as the case may 6e,] hold over and continue in possession of the said premises without the permission of the said landlord after default made in the payment of the rent as aforesaid. Sworn, &c. 7. — Affidavit by grantee of lessor for summons on non- payment of rent. State of New York, ) ^^ . Westchester County, Town of Yonkers, \ A. B. makes oath and says, that he is landlord of the premises hereinafter described ; that on or about the day of one C. D. let and rented unto E. Y. by lease dated the day of and made between said C. D., of the first part, and said E. F., of the second part, all that [description of demised premises, see ante, sect. 23,] for the term of [one year, or as the case may 5e,] to commence on the day of at the [yearly or monthly, as the case may he\ rent of dollars, payable [monthly or quar- terly, or as the case may Je] on the [first day of each and every month, or on the first days of February, May, Au- gust, and November, in each year, or as the case may be, and if the payment is to be made in advance, add, in ad- vance ;] that said E. E. entered into the possession and occupancy of, and still continues to occupy and hold said premises under and by virtue of said letting. * * That by indenture dated the day of made be- tween the said CD. and Mary, his wife, of the first part, and this deponent, of the second part, the said C. D. did APPENDIX. 16t convey and assign to this deponent [and to his heirs and assigns for ever, or as the case may 6e] all those the be- fore described premises, with the appurtenances. That said E. F. has made default in the payment, &c. \conelude as in form No. 6, from the f f f .J 8. — Affidavit * for summons on tenant holding over his term. State of New York, ) ^^ . County of Westchester, Town of Yonkers, ) A. B., of said town, makes oath and says, that he is [landlord, or, agent in this behalf, duly authorized, of X. Y., who is the landlord] of the premises hereinafter described ; that on or about the day of 18 [he, as such landlord, or, agent of said landlord,] let and rented unto C. D., [by parol, or, by agree- ment, or, by lease dated the day of 18 and made between said [A. B. or X. Y.,] of the first part, and said C. D., of the second part \as in the agreement or lease'\, all that [description of demised premises, see ante. Sec. 23,] for the term of [one year, or as the case may Je,] to commence on the day of 186 ; that said C. D. entered into the possession and occupancy of said premises and occupied same during all the said term, pursuant to said letting, and until the day of on which day the said term expired ; and the said C. D., as tenant as aforesaid, and P. Q. and R. S., as his [under- * The place of the affidavit may be supplied by an affirmatiop or declaration (2 U. S. 408, s. 90), in which case the yfazA. affirma- tion or declaration should be inserted instead of the word oath, whenever that word occurs. \ 168 APPENDIX. tenants or assigns, or as the case may be,] hold over and continue in possession [of said premises, or, of a part of said premises, namely, describing the part held over,] after the expiration of the said term, and without the permis- sion of said landlord. 9. — Affidavit by grantee of lessor for summons on tenant holding over. State of New York, ) ^^ . County of Kings, City of Brooklyn, ) ' ' A. B., of said city, makes oath and says, that he is [landlord, or, agent in this behalf, duly authorized, of X. Y., who is the landlord] of the premises hereinafter described; that on or about the day of 18 one E. F. let and rented unto C. D. [by parol, or, by agreement, or, by lease dated the day of 18 and made between said E. F., of the first part, and C. D., of the second part, as in the agree- ment or lease,] all that [description of demised premises, see ante, Sec. 23,] for the term of [one year, or as the case may i«,] to commence on the day of 186 ; that said C. D. entered into the possession and occupancy of said premises, and occupied same f during all of said term, pursuant to said letting, and until the day of on which day the said term expired. ** That on or about the day of by indenture dated the day of 186 made 'between the said E. F., of the first part, and \name of applicant^ of the second part, the said E. F. sold and con- veyed the said premises to the said [name of applicant^ to hold to him, his heirs and assigns, forever. APPENDIX. 169 iTiat the said C. D., as tenant as aforesaid, and P. Q. and R. S., as his [under-tenants, or, assigns, or as the case may he,] hold over and continue in possession of [said premises, or, a part of said premises, namely, describing the part held over,] after the expiration of said term, and without the permission of said landlord. 10. — Affidavit for summons on holding over against as- signee of the lessee. [As in the preceding form, No. 9, to the f, and then proceed] pursuant to said letting, and until the assign- ment next after mentioned. That [afterwards, or, on or about the day of ] the said C. D. \name of lessee] assigned the said premises and his right, title, and interest therein, pursuant to said letting, to M. N., who thereupon entered into the posses- sion and occupancy of said premises, pursuant to said as- signment, and had possession of and occupied the same during all the said term for which the same were so let as aforesaid, and until the day of on which day the term for which said premises were so let expired. That said M. N., as assignee as aforesaid, and P. Q., as his under-tenant, hold over and continue in possession of [said premises, or, a part of said premises, namely, de- scribing the part held over,] after the expiration of said term, and without the permission of said landlord. 11. — Affidavit for summons on non-payment of rent against assignee of the lessee. [As in preceding form No. 6, to the ff , and then pro- ceed] said premises, pursuant to said letting, and con- tinued to occupy same until the assignment next' after mentioned. 8 170 APPENDIX. That [afterwards, or, on or about the day of ] the said [A. B., name of lessee] assigned said premises and his right, title, and interest therein, pursuant to said letting, to M. N., who thereupon entered into the pos- session and occupancy of said premises, pursuant to said assignment, and had possession of and occupied the same, under and pursuant to said letting, thenceforth, and still continues, by himself and P. Q. and R. S., his under-ten- ants, to occupy and hold said premises under and by vir- tue of said letting ; that said M. N. has made default in the payment [conclude as in form No. 6, from the f f f .] 12. — Affidavit on non-payment of rent where the applicant is assignee of lessor. [Proceed as in Form No. 7, to the **.] That the said [A. B., the lessor,] afterwards, and on or about the day of and before said rent became due, assigned and transferred to deponent the said [lease or agreement,] and all his right, title, and interest therein or thereto. That said E. F. has made default, &c., [conclude as in Form No. 6.] 13. — Affidavit on holding over where the applicant is as- signee of lessor. [Proceed as in Form No. 9, to the **.] That the said [A. B., the lessor,] afterwards, and on or about the day of and before the expiration of said term, assigned and transferred to deponent the said [lease or agreement,] and all his right, title or interest therein or thereto. AJPPENDIX. 171 That the* said C. D.,'as tenant [conclude as in Form No. 9.] 14. — Affidavit where the applicant is heir at law of the lessor. [Proceed as in Form No. 7 or 9, hut in lieu of the paragraph commencing at the **, insert ;] That the said [A. B., the lessor,] was possessed of said premises in fee, and while he was so possessed, and on or about the day of and [before the expiration of said term, or, before said rent became due,] he departed this life intestate. That deponent is the only child and sole heir at law of said A. B. 15. — Affidavit where the applicant is devisee of the lessor. [Proceed as in Form No. 7 or 9, but in lieu of the paragraph commencing at the **, insert ;] That the said E. F. duly made and published his last will and testament, dated the day of and in and by said will gave and devised to the said [name of 'applicant^ the said prenijses, to him, his heirs [or executors, administrators] and assigns for ever, and afterwards, and on or about the day of [before the expiration of said term, or, before said rent became due,] the said E. F. departed this life with- out having revoked or altered his said will. 1 72 APPENDIX. 16. — Affidavit where the appUcdni is executor of the lessor. [Proceed as in Form No. 7 or 9, hut in lieu of the paragraph commencing at the **, insert ;] That said A. B. was possessed of a leasehold interest in said premises, by virtue of a certain lease thereof to- him made, dated the day of and made between of the first part, and said A. B., of the second part, for the term of years, computed from the day of That on or about the day of the said A. B. duly made and published his will and testament in writing, dated that day, and in and by said will nominated deponent executor thereof. That said A. B., being at the time an inhabitant of the city and county of New York, died on the day of [before the expiration of said term, or, before said rent became due,] without having revoked or altered his said will, and said will was proved before the Surrogate in and for the county of New York, on the day of and letters testamentary were, on the same day by said Surrogate, granted to this de- ponent.* 17. — Affi,davit where the applicant is administrator of the lessor. [Proceed as in Form No. 7 or 9, but, in lieu of the paragraph commencing at the **, insert .•] - That said A. B. was possessed of a leasehold interest in said premises, by virtue of a certain lease thereof to * It should be alleged that the rent became due to deponent aa executor, and that he demanded payment to him as executor. APPENDIX. 173 him made, dated the day of and made between of the first part, and said A. B., of the second part, for the term of years, computed from the day of That on or about the day of [and before the expiration of said term, or, before said rent became due,] the said A. B., being at the time an inhabitant of the city and county of New York, departed this life intestate, and on the day of the Surrogate in and for said county issued to deponent letters of administration of the estate and effects of the said A. B., deceased* 18. — Summons to tenant at will or by sufferance holding over. State ©f New York, ) City and County of New York, ) To C. D., and each and every person in possession of the premises hereinafter described, or claiming possession thereof. Whereas A. B. has this day made oath [proceeding to recite the whole of the landlord's affidavit, and where there is the affidavit of a third party, recite thai also in like manner^ ; And Whereas said A. B. has presented said [oath or oaths] in writing to me, and has applied to me to issue this summons. And whereas, previous to issuing this summons, I was satisfied by said [affidavit or affidavit of * It should be alleged that the rent became due to deponent as administrator, and that he demanded payment as administrator. 174 APPENDIX. X. Y.] that such tenancy had been terminated by giving notice in the manner prescribed by law ; Tsbrbforb, in the name of the People of the State of New York, you and each of you are hereby summoned and required forthwith to remove from said premises, or show cause before me at \describe place,] on the day of 186 at o'clock in the forenooh, why possession of said premises should not be delivered to said landlord. Witness my hand this day of l^Siffnaiure and description of magistrate^ 19. — Summon^ to tenant for a year, or part of a year, holding over. State of New York, ) ^^ County of Town of j To C. D., P. Q., and E. S. \names of tenant and under- tenants], and each and every person in possession of the premises hereinafter described, or claiming pos- session thereof. Whereas A. B. has this day made [oath or affirma- tion] in writing, that he is [landlord or agent in that be- half, duly authorized, of X. Y., who is landlord, as in affi- davit,] of the premises hereinafter described, and that on or about the day of [he, as such land- lord, or agent of said landlord, as in affidavit,] let and rented unto C. D., [by parol, or by agreement, or by lease, dated the day of and made between said [A. B. or X. Y.] of the first part, and said C. D., of the second part, as in affidavit,] all that [description of prem- ises as in affidavit,] for the term of [one year, as in affi- APPENDIX. 175 di,^ to commence on the '■ — - day of that said C. D. entered into the possession and occupancy of said premises, and occupied same during all the said term, pursuant to said letting, and until the day of on which day the said term expired, and that the said C. D., as tenant as aforesaid, and P. Q. and R. S., as his under-tenants, held over and continued in possession [of said premises, or, of a part of said prem- ises, namely, describing the pari held over,J after the expi- ration of the said term, and without the permission of said landlord. And whereas the said A. B. has presented said [oath or affirmation] in writing to me, and has applied to me to issue this summons ; Therefore, in the name of the people of the State of New York, you are hereby sum- moned and required forthwith to remove from [the before- described premises, or, from the premises lastly above described,] or show cause before me at [describe place where cause is to be shown,J on [the or this] day of at o'clock in the noon, why possession of said premises should not be delivered to said landlord. Witness my hand this day of [Subscribed by the officer who issues it, with his name and name of his office.] 20. — Sum/mons on non-payment of rent. State of New York, ) ^^ Kings County, City of Brooklyn, [ To A. B., P. Q. and R. S., and each and every person in possession of the premises hereinafter described, or claiming the possession thereof: 176 APPENDIX. Whereas C. D. has this day made [oath or affirma- tion] in writing, that he is [landlord or agent of X. Y., who is landlord,] of the premises hereinafter described, and that on or about the day of 18 he, as such [landlord or agent,] let and rented unto said A. B. [by parol, or by agreement, or by lease, dated the day of and made between said C. D., of the first part, and said A. B., of the second part, as in, the affidavit^ all that \description of premises as in affida- vit^ for the term of [one 'year, as in affidavit^ to com- mence on the day of 18 at the [monthly or quarterly, as in affidavit^ rent of dol- lars, payable [monthly or quarterly, as in affidavit^ on the [ day of each and every month, or, on the 1st days of February, May, August, and November, in each year, in advance, as in affidavit'^ ; that said A. B. entered into the possession and occupancy of, and still continues, by himself, and by P. Q. and E. S., his under-tenants, to occupy and hold said premises, under and by virtue of said letting ; that said A. B. has made default in the pay- ment of the rent of said premises, to wit : the sum of dollars, for [one month's or one quarter's, as in affidavit,"] rent of said premises, which became due and payable on the day of 18 pursuant to the agreement under which said premises are held ; that since the said rent became due and payable as afore- said, [payment thereof has been duly demanded from said A. B., or, three days' notice in writing, requiring payment of such rent, or possession of the said premises, was, on the day of by said C. D., served on said A. B., describe how served as in affidavit] ; that the said A. B. has not paid said rent, nor surrendered possession APPENDIX. 1T7 of said premises, but said A. B., as tenant of said prem- ises, and said P. Q. and R. S., as his under-tenants, [or as in affidavit,] hold over and continue in possession of said premises, without the permission of the said landlord, after default made in the payment . of the rent as afore- said. Therefore, in the name of the people of the State of New York, you and each of you are hereby summoned and required forthwith to remove from the said premises, or show cause before me, at in said City, on the day of 18 at o'clock in the noon, why possession of the said premises should not be delivered to the said landlord. Witness my hand this day of 18 [Signature.] [Justice of the Peace of the City of Brooklyn, or as the case may be.~\ 21. — Affidavit of service of summons. City and County of New York, ss : O. K., of said city, makes oath and says that he did, on the day of at said city, serve the annexed summons upon C. D., one of the persons to whom the same is directed [by then and there delivering to the said C D. personally a true copy of said summons and at the same time showing him said original summons, or, by leaving a copy of said summons at and on the premises in the said summons described, with a person of mature age at the time being and residing on said prem- ises, and at the same time showing such person said 8* 1Y8 APPENDIX. original summons, or, by then and there affixing a copy of said summons upon a conspicuous part of the premises in the said summons described, there being at the time no person residing on said premises].. And deponent further says that, on the same day, at said city, he served said summons on P. Q., another of the persons to whom the same is directed [by, &c., the same as relates to the service on C. D., and so, according to the number of persons served and the m,anner of service^. COUNTER AFFIDAVITS. 22. — General denial. In the matter of the application of A. B., landlord, to re- move C. D., tenant.f City and County of New York, ss. : C. D. makes oath and says, * he denies each and every allegation in the affidavit of the said A. B. contained. Sworn, &G. 23. — Denial of demand of rent. [Title, <&c., as in No. 22, to *] he denies that after the rent in said affidavit mentioned became due, the payment thereof was demanded from this deponent, as in said affi- davit is stated. f No title is necessary ; but it is proper to put a title, to iden- tify the proceeding in which the affidavit is made. Where there is no title, the affidavit must be framed so as to point out the particu- lar affidavit the allegations in which it is intendefl to deny. APPENDIX. 179 24. — Denial of notice requiring payment, dc. [Title, dc, as in JV'o. 22, io *] he denies that after the rent in said affidavit mentioned became due, a notice re- quiring payment of such rent or possession of said premi- ses was served, as in said affidavit is stated. 25. — That rent has been paid* [Title, Sc, as in No. 22, to *] he says, that on the day of he paid the said A. B., and the said A. B. then received from him, deponent, the sum of [amount of rent,'] in full satisfaction and discharge of said rent in the affidavit of said A. B. mentioned. 26. — Denial that rent was payable in advance. [Title, <&c., as in No. 22, to *] he denies that he agreed or promised to pay the said rent in the affidavit of said A. B. mentioned, in advance, or that said rent was pay- able in advance. [Or where it is alleged that the agreement to pay in advance was reduced to writing or was in a lease, say .•] he denies that in and by the [agreement or lease] in the "affidavit of said A. B. mentioned, it was or is stipu- lated that the rent in said affidavit mentioned should be paid in advance. * Where the defence is that the rent has been paid, it will not be sufficient to deny that the rent is due, or to deny the allegationa of the landlord's affidavit. The payment must be alleged. 180 APPENDIX. 2Qa. — Record of decision, by magistrate nsually indorsed on summons. See Sections 69 and 70, ante. Landlord, against Tenant. Rent $ Summons to show cause the day of 186 at o'clock in the noon. The landlord appears on the day ef 186 and demands the rent and possession of the premi- ses within mentioned, for the non-payment of the rent. The tenant appeared and filed an affidavit controverting the allegations in the landlord's affidavit, and demanded a jury. Trial adjourned until on which day the parties appeared, and the jury, being duly impanneled and sworn, after hearing the proofs and allegations of the parties, gave a verdict for the landlord. Judgment is therefore rendered, the day of 186 in favor of the said landlord, that he have possession of the premises within described, by reason of the non- payment of the said rent ; [and that said landlord recover $ for his costs of said proceedings ;] and that a warrant issue to remove the said tenant and all persons from the said premises, and to put the landlord into full possession, [and for the collection of said costs.] Justice. Warrant issued day of 186 APPENDIX. 181 27. — Bond for payment of rent and costs, to stay issuance of warrant* Know all Men, That we, G. H., of, &c., and J. K., of, &c., are held and bound to A. B., of, &o., in the sum of [double the amount of the rent and coste,] to be paid to said A. B., his executors, administrators or assigns, for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and sev- erally, firmly by these presents. Sealed with our seals, and dated the day of Whereas in a certain proceeding pending before X. Y., a justice of the District Court in the Judicial Dis- trict in the city of New York, by A. B., landlord, against C. D., tenant, it was on this day of adjudged that the said C. D. held over and continued in the possession of all that [describe premises,^ without the permission ot said A. B., his landlord, after a default in payment of the rent, pursuant to the agreement under which said premises were held ; the said rent and the costs of said proceeding amounting in the whole to $ . And in order to stay the issuing of a warrant to dispossess said C. D. from said premises these presents are executed. Now the condition of the above obligation is such, that if the said C. D. shall pay to the said A. B., his executors, ad- ministrators or assigns, the said rent and costs, namely, the said sum of $ in ten days from the date * This, wien approved by the justice, ia to be delivered to the landlord. 182 APPENDIX. hereof, then the said obligation shall be void, else to re- main in full force. Sealed and delivered [i- s.] in presence of i^- ^-i [This bond should be acknowledged before a CommiBBioner of Deeds or No- tary Public] 28. — Alloivance of magistrate to be indorsed. The within security is satisfactory to me. [Date and signature of magistrate.] 29. — Warrant to remove tenant where no cause is shown* State of New York, ) ^^ . County of Kings, City of Brooklyn, j To the sheriff of said county : f Wheeeas a. B. did make oath in writing and present the same to me \reciting the whole affidavit as in the sum- mons.^ And whereas said A. B. presented said oath in writing to me, and applied to me to issue the summons after described, f Whereupon I issued a summons re- * This form applies as well to the cases where there is no ap- pearance by the tenant as to the cases where he appears but does not show sufficient cause for dismissing the application on the face of the applicant's papers, and fails to controvert any of the facts stated in the applicant's. affidavit. f Or to any constable of the city of Brooklyn, or, where the premises are in a town, or to any constable of the town of Sometimes the warrant is directed to any constable or deputy sheriff of the county ; we doubt the propriety of this. APPENDIX. 183 quiring the said C. D., as tenant, and said P. Q. and E. S. as under-tenants, and each and every person in possession of said premises, or claiming possession thereof, forthwith to remove from said premises, or show cause hefore me at [etc., as in summons,] f f and said time for showing cause having now passed, and no sufficient cause having been shown to the contrary, and due proof of the due ser- vice of such summons on the said C. D., P. Q., and R. S., having been made to me. Thebefore, in the name of the people of the State of New York, you are commanded to remove all persons from the said premises, and put the said A. B. into the full possession thereof. In witness whereof, I have hereunto set my hand and seal this day of in the year one thousand eight hundred and sixty- j Justice of the Peace of the I City of Brooklyn. 30. — Warrant to remove after a trial by the magistrate . without a jury, [Proceed as in Form No. 29, to the f |.] And whereas, at the said time and place for showing cause, said C. D. filed an affidavit with me denying [the facts, or, some of the facts] upon which said summons was issued,* and I, after hearing the allegations and proofs of * Whefte there has been an adjournment insert here : And at the request of the said [A. B. or C. D.] I then and there adjourned the hearing of such application until the day of at M., at the same place, such adjournment appearing to me to be neces- sary. And whereas, on, ifec, [the adjournment day,'\ at [ place to which adjoumed,y the said A. B. and C. D. appeared before me. 184 APPENDIX. the parties, decided in favor of the said A. B. Therefore [conclude as in Form No. 29.] 31. — Warrant to remove after a trial by the magistrate with a jury. [Proceed as in Form No. 29, to the ff .] And whereas, at the said time and place for showing cause, said C. D. filed an affidavit with me denying [the facts, or, some of the facts] upon which said summons was issued; and then and there the said [A. B. or C. D.] de- manded a jury and paid the necessary costs and expenses of obtaining the same, and thereupon, then and there, upon the request of said [A. B., or, C. D.,] I did adjourn the hearing of such application until f the day of at A. M., at the same place, such adjournment ap- pearing to me to be necessary. And whereas I, in order to form said jury, did nominate twelve reputable persons, qualified to serve as jurors in courts of record, and issued my precept, dated the day of directed to [the sheriff", or, one of the constables of said county, or, to any constable of said city, or, said town,] commanding him to summon the persons so nominated to appear before me at on the day of [see ante, page 74,] at A. M., for the purpose of try- ing said matters in diiference. And whereas the said [sheriff" or constable] returned said precept to me with his return indorsed thereon, that he had summoned the said persons so nominated, and stating the time and man- ner of such summoning. And whereas, on the said day of [the adjournment day,\ at [place to which il\ the said A. B. and C. D., and the said per- APPENDIX. 185 sons so summoned appeared before me,* and six of the persons so summoned were then and there drawn as jurors, and sworn by me well and truly to hear, try, and determine the matters in difference between the parties ; and after hearing the allegations and proofs of the parties, the said jury were kept together [by the said sheriff, or, by one of the deputies of said sheriff, or, by a constable, or, by O. K., a proper person appointed by me for that purpose, and by me duly sworn to keep such jury, as is usual in like cases in courts of record,] ** until such jury agreed on their verdict and returned before me ; and the said A. B. being called \see ante, sect. 68,] and appearing, the said jury rendered a verdict in favor of said A. B.f Thbkb- FORE [conclude as inform No. 39.] 32. — Warrant to remove after a second trial by the magis- trate with a jury, the first jury being unable to agree. [As in the last form, No. 31, to the ** and then pro- ceed as thus ;] for such a time as I deemed reasonable, and they not being able to agree upon a verdict, I did discharge said jury ; and thereupon, then and there, I did * WJiere there is a second adjournment say here : And thereupon, then and there, upon the request of said [A. B. or 0. D.], I did fur- ther adjourn the heai^ng of such application untU, and so on, as in the above form, from the \ to the f f . f Where the proceeding is before a justice of the peace add here : Whereupon I entered said finding of said jury in my docket, and rendered a judgment, in accordance with said verdict, for the said A. B., and includiag in such judgment the costs of the proceedings, namely, the sum of $ to the said A. B., and add at end of warraiit the clause for costs, Form No. S9. 186 APPENDIX. at the request of said [A. B. or C. D.] further adjourn the hearing of such application until, &c., at, &c., at the same place, such adjournment appearing to me to be ne- cessary. And whereas I nominated other twelve repu- table persons, qualified to serve as jurors in courts of record, and issued my precept dated, &c., directed to, &c., commanding him to summon the said persons so lastly nominated, to appear before me at, &c., on, &c., for the purpose of trying said matters in difference. And where- as the said sheriff or constable returned said last-named precept to me with his return indorsed thereon, that he had summoned the said persons so nominated, and stating the time and manner of such summoning. And whereas on, &c., \the adjournment day,] at, &c., the said A. B. and C. D. appeared before me, arid [six of the persons so sum- moned were then and there drawn as jurors, or, five of the persons so summoned were then and there drawn as jurors, the said A. B. and C. D. consenting to a trial by such five jurors] and sworn [conclude as in the last preced- ing form^ 33. — Warrant to remove on decision by the magistrate after a trial before a jury who were unable to agree. [As in Form No. 31 to the **, and then proceed as thus ;] — for such a time as I deemed reasonable, and they not being able to agree upon a verdict, I did discharge said jury, and thereupon it was stipulated by and between the said A. B. and C. D. to leave the said matters in differ- ence to my decision, upon the allegations and proofs made APPENDIX. 187 and produced to and before said jury, and thereupon I did then and there decide in favor of the said A. B. Therefore, &c. [conclude as in Form No. 29.] 34. — Warrant to remove tenant at will or by sufferance. [ Where the tenancy is at will or by sufferance, the war- rant is the same as in other cases, except the insertion, where the f is placed in Form 29, of the following y\ And whereas, previous to issuing said summons, I was satisfied by [affidavit of X. Y. or said affidavit] that such tenancy had been terminated, by giving notice in the manner prescribed by law. 35. — Officer's return to warrant. Pursuant to the command in the [above or within] warrant, I have this day put the said C. D., the landlord, in full possession of the premises in said warrant de- scribed. Dated, &o. [Signature of officer, with a description of his office as sheriff or constable.] 36. — Precept for jury. The people of the State of New York, to any con- stable of the City of New York, greeting : We command you to summon [insert names of jurors,^ good and lawful men of the City of New York, qualified to serve as jurors 188 APPENDIX. in Courts of Record, who are in nowise of kin to A. B., the landlord, nor to C. D., the tenant, between whom a controversy exists, to be and appear before me, the Jus- tice of the District Court in the City of New York, for the Judicial District, at in said city, on the day of instant, at o'clock in the noon of that day, between the said parties, and have you then and there the names of the jurors, and this precept. Given under my hand, the day of 1862. P. Q., Justice. 37. — Constahle^ s return to precept. I served the within-named jurors : those marked P in person, and those marked C by copy. [Date and signature of constable.] 38. — Subpoena. The people of the State of New York, to [names of witnesses,] greeting : We command you that, all business and excuses being laid aside, you and each of you appear and attend before R. S., Esq., the Justice of the District Court in the City of New York, in the District, at on the day of at o'clock, in the forenoon, to testify and give evidence in a certain pro- ceeding now pending before me, then and there to be tried between A. B., landlord, and C. D., tenant, and, for a failure to attend, you will be deemed guilty of a con- tempt, and liable to pay all loss and damages sustained Appendix. 189 thereby to the party aggrieved,, and forfeit fifty dollars in addition thereto. Witness, Esquire, the Justice of our said District Court, in the City of New York, the day of 1862. [^Signed E. S., Justice.] M. M., Attorrtey. 39. — Clause for collection of costs, to be inserted in war- rant where costs are directed to be paid. See Sec- tions 69 and 70, ante, and note to Form 31, ante. And this is, therefore, in the name of the people afore- said, further to command you that, of the goods and chattels of said C. D. in your bailiwick, you cause to be made the sum of for the costs of the aforesaid proceedings, awarded to the said A. B., and included in said judgment. 40. — Affidavit on which to apply for certiorari. Supreme Court, City and County of New York, ss. : C. D., of said city, makes oath and says that, on the day of A. B., as landlord of deponent, made application, on his oath in writing, to Esq., Justice of the District Court in the Judicial Dis- trict of the City of New York, for a summons directed [to deponent, or to deponent and to ] to show cause why deponent should not be dispossessed from cer- tain premises known as No. Street, in said city. 190 APtENDlX. on the ground that deponent held over and continued in possession of said premises after the expiration of his term therein without the permission of the said A. B., and the said justice thereupon issued his summons, direct- ed to [deponent, or as the case may be,\ commanding him forthwith to remove from said premises, or show cause before said justice, at on why possession of said premises should not be delivered to said A. B., and deponent was served with said summons, and did attend, pursuant to the mandate thereof, and filed with said justice an affidavit denying [all or one] of the facts on which the said summons is issued, namely, the fact \according to the faci,'\ and the said justice then and there adjourned the trial of the issue raised in said proceeding until on which said last-named day the said justice proceeded with the trial of said issue, and, after hearing the testimony adduced, decided in favor of the said A. B., and issued his warrant to dispossess deponent from said premises. That, on the said trial, the said jus- tice admitted testimony not legally admissible, and re- jected testimony that ought to have been received, that is to say : [state the facts,^ and that said decision was con- trary to and against the evidence adduced before said justice, and the said justice committed other errors of law and of fact in the course of said trial, and of the pro- ceedings connected therewith, as will appear on the face of said proceedings, and, by reason of the matters afore- said, deponent has been greatly injured by being dis- possessed from said premises and otherwise.* Sworn, &c. * The affidavit will, of course, vary with each particular case. The foregoing will, at least, convey seme idea of the form of affi- davit necessary. APPENDIX. 191 41. — Certiorari. The people of the State of New York to Esquire, Justice of the District Court for the Judicial District in the City of New York, greeting : Whereas, lately, a certain proceeding was had before you, on the application of for a warrant to dis- possess C. E. of certain premises in the City of New York, and such proceedings were therein had that a de- cision has been given by you against the said C. E., as is alleged ; and we, being willing for certain reasons that the record of the said proceedings and decision should be certified by you to our Supreme Court, do therefore com- mand you, that you send, under your seal, the record of the said proceedings and decision, with the process, plead- ings, evidence, and other things touching the same, to the justices of our said Court, at the City Hall in the said city, on the first Monday of next,* in as full and ample a manner as the same remains before you, together with this writ, that the said Court may further cause to be done therein what of right ought to be done. Witness, fname of Supreme Court justice,] Esq., Jus- tice of the said Court at the City Hall, in the said City, the day of By the Court. W. X., Clerk. P. Q., Attorney, [Indorsed,'] Allowed. [Date and name of justice.] * The first day of the general term following the issuing of the writ. 192 APPENDIX. 42. — Return to certiorari. The return of [name of magistrate'] to the writ of certiorari hereto annexed. In obedience to the annexed writ to me directed, I do hereby certify and return, that on the day of at A. B. presented to me an oath in writing, in the words and figures following, that is to say : [insert copy affidavit/] and I then and there, at the request of the said A. B., issued a summons, under my hand, in the words and figures following, that is to say : [insert copy sum- mons /] and on the day of the said A. B. filed with me an affidavit, in the words and figures follow- ing that is to say : [insert copy affidavit of service /] At the time and place mentioned in said summons, appeared as well the said A. B. as the said C. D. ; and the said C. D. then and there filed with me an affidavit, in the words and figures following, that is to say : [insert copy affidavit of tenant;] and the said C. D. then and there demanded a jury, and paid the necessary costs and expenses of obtain- ing a jury ; and thereupon, [of my own motion, or, by consent of the parties,] I then and there adjourned said proceedings until the day of at o'clock in the noon, at [place,] and I nominated twelve reputable persons, qualified to serve as jurors in courts of record, and issued my precept, under my hand, in the words and figures following, that is to say : [insert copy precept or venire,] which said precept was returned to me, with a return thereupon indorsed, subscribed by the said [sheriff", or, constable,] in the words and figures following, that is to say : [insert copy return.] At the afore- said time and place to which the said proceeding was ad- APPENDIX. 193 journed, appeared before me as well the said A. B. and the said C. D. [as the said jurors, or, as ten of the said jurors, or as the case may be,] so nominated and sum- moned, and their names were respectively written on sev- eral and distinct pieces of paper, as nearly of one size as may he ; and the said [sheriif, or, constable,] in my pres- ence, rolled up or folded said pieces of paper, as nearly as may be in the same manner, and put them together in a box [or other vessel], and I drew out six of said papers, one after the other [see ante, sect. 60], and to each of the per- sons whose names were so drawn I administered an oath well and truly to hear, try, and determine the matters in difference between A. B., landlord, and C. Jj)., tenant, and, unless discharged by me, a true verdict to give ac- cording to the evidence [see ante, sect. 63] ; and the said persons so sworn then and there sat together and heard the proofs and allegations of the parties delivered pub- licly in their presence ; and the testimony offered on said trial was as follows : [here insert the testimony, including a reference to that offered and rejected — see ante, sect. 96.] And the said jury, after hearing the allegations and proofs of the parties and their witnesses, were kept to- gether untU they agreed upon their verdict [by the said sheriff, or, by a deputy of said sheriff, or, by he be- ing a proper person and appointed by me for that pur- pose,] and who was previously duly sworn by me to keep such jury,* as is usual in like cases in courts of record. * The oath to keep the jury is not that prescribed by the Eev. Stat. (2 R. S. 249, s. 109) in justices' courts, but that usual in courts of record. The oath usual in courts of record is : " You shall go out with the jury who are sworn in this cause [matter] ; you shall keep them together in some private and convenient place, without 9 194 APPENDIX. And afterwards the said jury returned before me and de- clared they had agreed upon their verdict, and thereupon the said A. B. was duly called and appeared, and the said jury then and there delivered to me publicly their verdict in favor of the said A. B. ; and thereupon I* issued my warrant, under my hand, in the words and figures follow- ing, that is to say : [insert copy warrant^ and on the day of the said warrant was returned to and filed with me, with a return indorsed thereupon in the words and figures following, that is to say : \insert copy return.] In testimony of this return, I have hereto set my hand and seal this day of [Siffnature and seal of Justice.] 43. — Judgment record on certiorari. Pleas before the Justices of the Supreme Court of the People of the State of New York, at a General Term of said Court, held at in the county of on the day of Present, — , , and , Justices. meat or drink ; you shall suffer no person to speak to any or either of them, nor speak to them yourself, nor to any or either of them, until they shall agree upon their verdict, unless it be to ask them if they have agreed upon their verdict, without being otherwise di- rected by the court : So help you God." — Edwards' Jurymmis Ghdde, 108. * ijf the prodeeding is before a justice of the peace insert at this plaee : " entered said finding of said jury in my docket, and I ren- dered judgment, in accordance with said verdict, for the said A. B., and included in such judgment the costs of the proceedings, namely, the sum of $ to the said A. B., and thereupon I" Appendix. 195 The People of the State of New York sent to [name of magistrate\ their -writ, in these words : [insert copy cer- tiorari.'] To which said writ the said [name of magis- iratel made return as follows : [insert copy return.] And now, at this day and at this place, came as well the said A. B. as the said C. D., and the court having heard the said parties, by their respective counsel, and considered the premises, do consider the proceedings and adjudica- tion of the said [name of magistrate] erroneous. •S ^" Therefore, it is considered that the said pro- ^ 3 ceedings and adjudication be and the same are § pj" hereby reversed. And, further, that the said C. ""SO ■'-*• recover against the said A. B. dollars, ■Q I" for his costs and charges in the matter of said cer- g)'° tiorari, and that he have restitution of the premises 4 aforesaid. 44. — Writ of restitution and for costs. The People of the State op New Yobk ; To the Sheriff op the County of Whereas, proceedings were lately instituted before R. S., a justice of the peace for the town of between A. B., landlord, and C. D., tenant, upon the application of said A. B. to remove the said C. D. from certain premises in the town of and county aforesaid, [for holding over and continuing in possession of said premises after the expiration of his term therein, and without the permission of said landlord, or, for holding over said premises, without the permission of said landlord, after a default in payment of rent pur- suant to the agreement under which the premises are held, and after a demand of such rent,] and such proceed- 196 APPElCDIX. ings were had upon said application that an adjudication was made thereon against the said C. D., to remove said C. D. from said premises ; and said C. D. was, pursuant to said adjudication, removed from said premises. And WHEBEAS, such proceedings and adjudication were, by our writ of certiorari, rem^oved into our Supreme Court, and said adjudication was there examined, and it was consid- ered by our said court that restitution of the possession of said premises ought to be awarded to the said C. D., to- gether with $ for his costs in that behalf, to be paid by said A. B., as appear to us of record. Now, THBEBFORE, We Command you forthwith to restore the said C. D. to the full possession of the said premises, and to remove all persons therefrom, and to put the said C. D. into full possession thereof. And we further com- mand you, that out of the personal property of the said A. B., in your county, you cause to be made the sum of $ [the amount of costs], or if sufficient personal property cannot be found, then out of the real property in your county, belonging to said A. B. on the day of [insert day when judgment docketed, so as to become a lien on real estate], or at any time thereafter, in whose hands soever the same may be, and return this writ to the clerk of the county of Witness [name of a justice of the Supreme Court], at the day of By the court. H. Y., Clerk. M. N., Attorney. appendix: 197 45. — Notice of appeal. In the matter of the proceeding before X. Y., Justice, A. B., landlord, to dispossess C. D., tenant. Take notice, the above-named C. D. appeals to the county court of the county of from the judgment rendered in the above-entitled matter on the day of by X. Y., Esquire, in favor of the said A. B., and against the said C. D. The grounds of said appeal are : [state grounds of ap- peali\ [Date and signature of appellant or his attorney.^ To the above-named A. B. and X. Y., Esquires. 46. — Underiahing on appeal. [Title as in No. 45.] C. D., above named, being aggrieved by the judgment rendered against him in the above-entitled matter, and desiring to appeal therefrom and to stay the issuing of a warrant or execution on said judgment : Now, therefore, we, E. F., of, &c., and G. H., of, &c., do hereby, pursu- ant to the statute in such case made, undertake that if judgment be rendered against the said C. D., the appel- lant, on said appeal, and execution on such judgment be returned unsatisfied, in whole or in part, we will pay the amount unsatisfied ; [and, the tenant being the appellant, add] and we further undertake to pay all rent accruing 198 . APPENDIX. or to accrue upon said premises, in the above-entitled mat- ter referred to, subsequent to the application to the justice above named in said matter. [I)ate and sic/natures of sureties.^ County of City of ss. : E. F., one of the subscribers to the foregoing under- taking, being sworn, says, that he is a resident and holder within this State, and is worth the sum of dollars, over and above all his debts and liabilities and property exempt by law from execution. Sworn, &c. County of City of ss. : G. H., one of the subscribers to the foregoing under- taking, being sworn, says, that he is a resident and holder within this State, and is worth the sum of dollars, over and above all his debts and liabilities and property exempt by law from execution. Sworn, &c. County of City of ss. : I Certify, that on this day of 1862, E. F. and G. H., above named, to me known, personally appeared before me and severally acknowledged that they executed the above undertaking as their own free act, for the uses and purposes therein mentioned. S. T., Commr. of Deeds. I approve the foregoing undertaking and the sureties therein named, [Date and signature.] APPENDIX. 199 47. — Betwn on appeal. [Title as in No. 45.] The return of [wctjwe of magistrate], on the appeal of the above-named C. D. from the judgment ren- dered in the above entitled matter, Respectfully shows : That on the day of A. B. presented \and so forth, setting out the proceedings as in the return to the certiorari, ante, form No. 42.] [Bate and signature of Justice.] 48. — Judgment on appeal.* County Court for the County of . C. D., Appellant, agt. A. B., Respondent. At a term of the said court, held at on, &c., be- fore the Honorable County Judge for said county, the appeal of the said C. D. from a judgment rendered in the matter of the proceeding before X. Y., Justice, by A. B., landlord, to dispossess C. D., tenant, coming on to be heard : Now, after hearing of counsel for the said appellant, and of counsel for the said respon- dent, it is adjudged that said judgment be, and the same is hereby, affirmed, with costs of said appeal, adjusted at the sum of dollars. * This, with the justice's return, will constitute the judgment- oil (148). ^ .._ INDEX. [The reference is to the page.] A. ACTION FOR RENT, effect of on remedy by summary proceed- ing, 36. after tenant has been evicted, 116. mesne profits after eviction of tenant, 117. ADJOURNMENT cannot be had until counter-afiSdavit filed, 84. length of, 90, 16. cost of, 91. of trial, from day to day, 100. ADMINISTRATORS of landlord, rights of, 34. APFIDAVIT, form of, 58. the venue, 58. the deponent, 59. description of deponent, 60. the letting and the terms thereof, 61. description of premises, 62. holding over, 63. stating names, &o., of parties proceeded against, 68. before whom sworn, its subscription, 64. statement of facts in, 66. is not evidence, 61, 51. cannot be twice used, 67. should be used promptly, 61. on a proceeding for holding over, 68. of the expiration of the term, 68. on a proceeding for non-payment of rent, 69. of how and when rent became due, and the amount, 69. of the demand, 10. proceeding upon, 70. service of notice to pay rent,