0^^ 3? ^"^ \> .^ v^^ ^ A 3 1924 050 134 323 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924050134323 THE RIGHTS, REMEDIES AND LIABILITIES OF LANDLORD AND TENANT, IWCLTJDIWG THE LAW AND PRACTICE SUMMARY PRO OEEDINGS, UNDBB THE STATUTE PBCULIAK TO THAT RELATION. DAVID McADAM, ONE OF THE JUSTICES OF THE MARINE COURT OF THE CITY OF NEW YORK. WITH NUMEROUS FORMS. NEW-YOEK : DIOSSY & COMPANY, PUBLISHERS, 86 Nassau Street, itbar Pulton-. 1876. Entered, according to act of Congress, in the year 1875, By DAVID McADAM, In the office of the Librarian of Congress, at Washington. TOBITT & BUNCB, Frinlert, 131 William Street, N. Y, PREFACE. The Statutory changes in the law regulating the Rights and Remedies of Landlord and Tenant made within the past few years, induced the author to comply with numerous requests to compile the present Treatise. The work treats, first, of the Rights belonging to the re- spective parties growing out of the relation of Landlord and Tenant ; next, the Remedies for the enforcement of those rights ; and lastly, the Liabilities incidental to these rem- edies. The forms required in the various remedies have also been inserted in their appropriate place in the book, with the Remedy to which they belong. Other forms affecting the relation, have also been inserted. The general design has been to make the work one of practical, as well as of easy reference. It is hoped that the design has been accomplished. DAVID McADAM; New York, December 6, 1875. ERRATA. The following corrections should he made : Page 44, bottom line, for "Keys," read "Key." " 103, line five, for "L. R. Eq.," read "L. & Eq. R." " 103, the title at top of page should read " Rights and Disa- bilities." " 195, line 13, for " possessions," read "possession." " 215, bottom line, for "31," read " 33." " 387, line seven, for "contents" read "contests." TABLE OF CONTENTS. CHAPTER I. PASE The tenure of real property 1 CHAPTER n. The creation and division of estates. Estates of inheritance. Es- states for life. Estates for years, and estates at will and by sufferance, and monthly tenancies 5 CHAPTER HI. Determination of particular estates by service of notice to quit. Tenancies at will and sufferance 13 ' CHAPTER IV. Of the definition, nature, and validity of leases. Covenants. Renewals. Power of agents. Rights of lodgers. Effect of occupation under void lease. Legal meaning of certain terms. Recording leases. Effect of possession as notice 19 CHAPTER V. Validity of lease as affected by fraud. Remedy in case of fraud. Election to affirm. Effect of lessee taking possession 34 CHAPTER VI. Rights of landlord. Time of payment of rent. Mode of pay- ment. Tender of payment. Plea of tender. Effect of ten- der. Appropriation of payments 47 ERRATA. The following corrections should ie made : Page 44, bottom line, for "Keys," read ''Key." " 103, line five, for " L. R. Eq.," read " L. & Eq. R." " 103, the title at top of page should read "Rights and Disa- bilities." " 195, line 13, for " possessions," read "possession." " 215, bottom Une, for "31," read " 83." " 387, line seven, for "contents" read "contests." TABLE OF OONTEJSTTS. CHAPTER I. The tenure of real property CHAPTER n. The creation and division of estates. Estates of inheritance. Es- states for life. Estates for years, and estates at will and by sufferance, and monthly tenancies 5 CHAPTER m. Determination of particular estates by service of notice to quit. Tenancies at will and sufferance 13 ' CHAPTER IV. Of the definition, nature, and validity of leases. Covenants. Renewals. Power of agents. Rights of lodgers. Effect of occupation under void lease. Legal meaning of certain terms. Recording leases. Effect of possession as notice 19 CHAPTER V. Validity of lease as affected by fraud. Remedy in case of fraud. Election to affirm. Effect of lessee taking possession 34 CHAPTER VI. Rights of landlord. Time of payment of rent. Mode of pay- ment. Tender of payment. Plea of tender. Effect of ten- der. Appropriation of payments 47 VI CONTENTS. CHAPTER Vn. PAQB Remedies of the landlord and of Ms grantees and assignees. Var- ious remedies of the landlord. Rents dependent upon life of another. When rent has a preference over certain claims against deceased tenant. Enforcing compliance of condition. Enforcing forfeiture for breach of condition. Nuisances upon adjoining premises. Remedies of executors. Effect of judg- ment upon other remedies 56 CHAPTER Vm. Rights of tenant. Right of possession and damages for with- holding. Damages to evicted tenant. Assigning lease and under-letting. Who are assignees. Liability of assignee. Discharge of assignee by further assignment. Sale of leasehold estate. Right of tenant to remove fixtures. Rights of the under-tenant. "Right of sub-tenant to pay original landlord. Sub-lease and sub-lessee 81 CHAPTER IX. Remedies of the tenant, and of his assignees and personal repre- sentatives. Rescission for fraud or mistake. Other remedies of the tenant. Remedies of joint tenants. Tenant's remedy for wrongful entry 91 CHAPTER X. Certain rights and disabilities growing out of the relation. Ten- ant estopped from disputing landlord's title. Certain attorn- ments void. Certain provisions affecting tenant's possession. Leases to infants. Married woman. IJarfcners and corpora- tions 97 CHAPTER XI. Of the obligation to repair. Right of action for breach. Extent of landlord's liability 104 CHAPTER XH. Covenants running with the land Ill CHAPTER Xm. Surrender. Agent's power to accept surrender. Accepting new lease '.. 115 CONTENTS. . Vll CHAPTER XIV. PAGK Eviction. Effect of eviction. Eminent domain. What the evic- tion affects 121 CHAPTER XV. The statute relating to untenantable premises. Construction of the act 129 CHAPTER XVI. Of excavations. Excavations as affecting adjoining premises. The effect of adjoining excavations upon the relations be- tween landlord and tenant of the house inconvenienced by them 133 CHAPTER XVII. Party walls. Party wall not an incumbrance. Provisions of the building law upon the subject of party walls. Increasing the thickness of party and other walls. Diminishing thick- ijess of party wall. Increasing height and depth of party wall. Repairing party wall. Taking down party wall. Re- building party wall 145 CHAPTER XVni. Other easements. Definition of easement. Rights of way. Rights under covenant as to character of adjoining build- ings 161 CHAPTER XIX. Liability to third persons. Of tenant and of landlord. Open- ings on sidewalk. Liability of third person to landlord .... 165 t CHAPTER XX. The statutory remedy of forcible entries and detainers 174 CHAPTER XXI. The statutory remedy known as summary proceedings to recover the possession of demised premises 182 VIU CONTENTS. CHAPTER XXII. PAHB The law and practice on proceedings for forcible entries and de- tainers. Officers having jurisdiction. Proceedings, how in- stituted and conducted, with the various forms required therein 197 CHAPTER XXm. The law and practice on summary proceedings. The object, de- sign, and application of the statute 311 CHAPTER XXIV. The rules of construction applicable to the statutes, jurisdiction, and proceedings thereafter . . . , 316 CHAPTER XXV. Judicial officers having jurisdiction 319 CHAPTER XXVI. Proceedings for non-payment of rent 331 CHAPTER XXVII. Proceedings for holding over 330 CHAPTER XXVIII. The affidavit in said proceedings, and its requisites, with forms, 337 CHAPTER XXIX. The summons, its form. The service and proof of service 351 CHAPTER XXX. Practice upon return day. Objections to sufficiency of papers. Filing counter affidavit. Amendments. Demanding trial by jury. Adjournments, with forms 363 CHAPTER XXXI. Proceedings upon trial. The jury. Evidence. Judges charge. Deliberations of the jury. Verdict and its efiEect 874 CONTENTS. IX CHAPTER XXXII. PASS Final determination and ita efiect. Warrant. Staying execu- tion of warrant. Redemption. Forms, &c 284 CHAPTER XXXin. Injunctions to enjoin summary proceedings 299 CHAPTER XXXIV. Proceedings under the statute relating to bawdy houses and illegal trades, with the forms required in said proceedings. . 303 CHAPTER XXXV. Certiorari to review proceedings on forcible entry and detainer, and to review adjudications under the statute relating to summary proceedings with the forma, required thereupon , . 314 CHAPTER XXXVI. Review of summary proceedings by the county court upon appeal from adjudication of justices of the peace. Law and practice j upon such appeals, with forms 324 CHAPTER XXXVII. Squatter act and proceedings thereunder, with forms 346 CHAPTER XXXVIII. Liabilities incidental to remedies. Liability of justice and of parties 360 CHAPTER XXXIX. Chapter of forms ... • 857 ii CONTENTS. APPENDIX. I'AOK Party walls 878 AfiBdavit upon appeal 876 INDEX OF F0EM8. No. rAQB 1. One mouth's notice to quit 16 3. All the forms in forcible entry and detainer proceedings will be found in Chapter XXII. page 197 to 310 3. Demand for rent by service of three days' notice 334 4. AfBdavits in summary proceedings 345 to 349 5. Summons in summary proceedings 358 to 358 6. Endorsement thereon 358 7. Proof of service of summons 360 and 361 8. Counter affidavit, in summary proceedings 2>59 9. Venire for jury, summary proceedings 371 10. Juror's summons, summary proceedings 372 11. Affidavit to adjourn trial 373 13. Oath to jurors 378 13. Oath to'officer having charge of jury 382 14. Judgment 285 15. Bonds under various sections of the act 289 to 393 16. Warrant 393 to 395 17. Affidavits in case of bawdy house 309 to 311 18. Stimmons in like cases 311 19. Affidavit in case of illegal trades 312 20. Summons in like case 318 31. Endorsement thereon 3ly 23. Judgment and warrant in such cases 318 23. Petition for certiorari Sl.'j 34. Certiorari to remove proceedings 816 35. Bond on allowance of certiorari 316 36. Return of justice to certiorari 317 27. Petition for certiorari. Summary proceedings 330 28. Order directing certiorari. Summary proceedings 321 0ONTE]SrT8. X) No. PAQK 29. Writ of certiorari to review summary proceedings Sal 80. Return of justice. Summary proceedings 832 81. Order of reversal. Summary proceedings 833 82. Writ of restitution. Summary proceedings 828 38. Docket of justice of the peace. Summary proceedings 834 84. Warrants by justices of the peace. Summary proceedings. . 335 85. Notice of appeal to county court. Summary proceedings . . 338 86. Security upon such appeal. Summary proceedings 380 87. Return of justice in summary proceedings 335 88. Order for amended return 387 89. Notice to quit under squatter act 847 40. Complaint under squatter act 348 41. Warrant under squatter act 348 42. Index to chapter of forms 357 48. AfBdavit for appeal to county court 876 FASK INDEX TO THE OHAPTEE OF F0EM8. (Chap. 89, post, p. 857.) No. 1. Subpoena.,.., 357 3. Proof of service 858 8. Order for attachment against witness 358 4. Attachment against -witness 359 5. Complaint in ordinary civil action against tenant for rent, 859 6. Complaint in ordinary civil action against surety of tenant for rent 860 7. Lease, with covenants 861 8. Other covenants for lease 863 I). Security lor rent to be endorsed on lease 368 10. Assignment of lease 364 11. Mortgage on lease, interest, and insurance clause 865 13. Bond to accompany said mortgage 867 13. Party wall agreement (two forms) 368 869 14. Permission to insert beams in adjoining house 870 15. Builder's contract 37I 16. Dillerent forms of acknowledgment 373 THE Eights, Eemedies, and Liabilities OF LANDLORD AND TENANT. CHAPTER T. THE TENURE OF EEAL PEOPEETT. The constitution of the State declares that " The people, in their right of sovereignty are deemed to pos- sess the original and ultimate property in and to all lands within the jurisdiction of this State ; and all lands the title to which fails from a defect of heirs, reverts or escheats to the people " {Const. 1846, art. 1, § 11), and " all feudal tenures with their incidents are declared abolished" (76. art. 1, § 12), and "all lands within the State are declared to be allodial, so that, subject only to the liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates" {lb. art. ], § 13). Various statutes, prior to the Constitution of 1846, contained similar provisions (1 Jones & VaricTc, 44 ; 1 B. A 70 ; 1 R. 8. 714, § 1 ; 1 Edm. R. 8. p. 666, §§ 1, 3). The ancient English principle of feudal tenures is sup- posed to have (theoretically at least) existed in this State during its colonial existence, but Judge Stobt 1 2 LANDLOED AND TENANT. says: *'In all the colonies, the lands within their limits were by the very terms of their original grants and charters, to be holden of the Crown in fee and common socage, and not in capite or by knights ser- vice. They were all holden, either as the manor of East Greenwich in Kent, or of the manor of Hampton Court in Middlesex, or of the castle of Windsor in Berkshire. All the slavish and military part of the ancient feudal tenures was thus effectually prevented from taking root in the American soil ; and the colon- ists escaped from the oppressive burdens, which, for a long time, affected the parent country, and were not abolished until after the restoration of Charles the Second.* Our tenures thus acquired a universal sim- plicity : and it is believed that none but freehold tenures in socage ever were in use among us. f No traces are to be found of copyhold, or gavelkind, or burgage tenures. In short, for most purposes, our lands may be deemed to be perfectly allodial, or held of no superior at all ; though many of the distinctions of the feudal law have necessarily insinuated them- selves into the modes of acquiring, transferring, and transmitting real estates" {Story on the Const, vol. 1, § 172). The early history of English tenures discloses many important features of distinction between the ancient and present condition of lessees of land, properly so called. * By an act of parliament of April 25th, 1660, all military tenures ■were abolished. t By socage tenure is meant a fixed rent or service, not military nor liable to change by the will of the lord. Tenure in socage cm- braced those who were the actual workers, the men who plowed and tilled the grounds which they occupied. The etymology of the word socage has been the subject of dispute. Littleton derives it from the Latin word soca, a plow. His theory is that a great number of tenants of the lord were bound to lajjor a certain number of days in the year, in plowing and sowing the domains of the lord ; and, because their services were performed with the plow, their tenure was called tenure in socage ; other law writers have derived the word socage from the Saxon word soc, which was used to express liberty or privilege ; and upon that theory, have claimed that the word socage was used to in- dicate a free or privileged tenure. TENURE OF REAL PEOPEETT. 3 At first, the tenant appears to have been regarded rather as a bailiff or servant of the lord, and account- able for the profits, than as having any direct property in the laud. By degrees, however, he assumed a more independent position, and acquired a defined, though limited, interest in the soil itself, rendering provisions, grain, or other agricultural produce, as a recompense for the enjoyment ; a circumstance to which we may now refer the adoption in modern leases of the words "and to farm let ;" the word /arm orfearme being an old Saxon term, signifying provisions (1 Piatt on Leases, p. 2), or as Woodfall translates it, "Farm, ferme, fearme, flrma, is derived of the Saxon word ' feorman ' to feed or relieve ; because in ancient time they reserved upon their leases cattle and other victual and provision for their sustenance " {WoodfalVs L. & T. p. 5). In England, the subject to whom the king granted lands, as they were to be holden of him by some pie- scribed service, was called his tenant; the lands or possessions, the tenement ; and the manner in which they were held the tenure, although literally, the word tenure simply signifies a holding. By the statute of this State, tenancies are divided into estates of inheritance, for life, for years, and at will, and by sufferance, and although the word " ten- ancy " implies a holding from some superior lord, yet the more ordinary use of the word is intended to de- signate some estate or interest in lands, less than a fee, , held by one person called a lessee, of another called the lessor, subject to some rent and accompanied by cer- tain obligations of the lessor and lessee respectively. Upon such a holding arises the ordinary relation of landlord and tenant referred to in the modern books ; and it is to the rights, remedies and liabilities belong- ing to and growing out of such a relation, that the present treatise is addressed. 4 LANDLOED AND TEITANT. It is a fundamental principle in the English law, derived from the maxims of the feudal tenures, that the king is the original pro- prietor, or lord paramount of all the land in the kingdom, and the true and only source of title (2 SZ. Com. 43-104), and any reader desir- ing to master the intricacies of the ancient system of tenures, may be gratified by reading the history of their military origin as explained by Sir William Blackstone, in his Commentaries (Book 2, p. 42-104), in which the reasons which gave rise to the rule that all land is held of the sovereign are fully ex- plained. In entering, however, upon a view of the American law of real property, it can serve no practical purpose, to go into all intrica- cies of the feudal law. The early settlers of this country left that law behind them ; or, if any relic of it survived till the revolution, all was then swept away. The feudal law was a political system which never made any part of American institutions (1 SUliard on Seal Prop. 36). After the separation of the colonies from the mother country, it was after much discussion settled in and by the articles of confederation, between the thirteen States, that the people of those States respectively in their right of sovereignty, were deemed to pos- sess the original and only source of title to lands within their domain (Hildreth's U. 8., vol. 8, p. 395-400, articles of Confed., 3-9). In the territories ceded to the Federal Government, after the signing of the articles of Confederation, the people of the United States, in their right of sovereignty, are deemed to possess the original and only source of title, so that in the Territories of the West, and in States formed out of such Territories, the source of title, as a rule, is by grant evidenced by warrant or patent from the United States, issued by that department of the Federal Government known as the Land Office, pursuant to acts of Congress making provision for the sale of public lands. CEHATIOK AND DIVISION OF ESTATES. CHAPTER II. THE CREATION AND DIVISION OP ESTATES. By statute (1 Edm. p. 670, § 1), estates in land are divided into 1. Estates of inheritance ; 2. Estates for life ; 3. Estates for years ; and 4. Estates at will and by sufferance ; and the nature and quality of these estates will be considered in the order stated. I. Of estates of inheritance. In this State, estates of inheritance are divided into fees simple, or absolute fees, and defeasible or condition- al fees (1 Edm. B. p. 670, § 2), and a fee simple is the' highest estate in land, and a conditional fee is one which has a qualification subjoined called a condition prece- dent or subsequent ; a precedent condition is one which must take place before the estate can vest, and a subse- quent condition is one which acts upon an estate already created or vested, and renders it liable to be defeated. Estates of inheritance and for life, continue to be denominated estates of freehold ; estates for years, chattels real ; and estates at will or by sufferance, chat- tel interests (1 Udm. R. p. 671, § 5). For the balance ot the statute relating to the creation and division of estates, see 1 Eim. B. 8. pp. 670 to 676, and for the law as to condi- tional or qualified fees, see Gerard on Titles (2d ed. pp. 123 to 138). 6 LANDLORD AND TENANT. II. Of estates for life. An estate for life exists where a lease is made of lands or tenements to a man, to hold for the term of Ms own life, or for that of any other person, or for more lives than one, in any of which cases he is styled tenant for life ; only when he holds the estate by the life of another, he is usually called tenant pur autre vie {Litt. § 36 ; 2 Bouviefs Law Die. tit. " tenant," sub. 8). An estate for life is a freehold estate, but not of in- heritance. An estate during the life of a third person is deemed a freehold only during the life of the grantee or de- visee, but after his death it is deemed a chattel real (1 £!dm. R. 8. p. 671, § 6). A conveyance made by a tenant for life or years of a greater estate than he possessed or could lawfully convey, shall not work a forfeiture of his estate, bat shall pass to the grantee all the title, estate, or interest which such tenant could lawfully convey {Id. p. 690, § 145). Incidents of the estate. The tenant for life can not be affected by any act of the remainder man (Doe «. Thompson, 5 Cow. 371), nor can the tenant for life by any act of his prejudice the re- mainder man (Jackson ». Luquere, Id. 221), and the possession of the tenant for life is not adverse to the re- mainder man, and the latter may make a valid convey- ance notwithstanding such possession (Grant v. Town- send, 2 Hill, 554), and the tenant for life is entitled to reasonable estovers, that is wood from off the land, for fuel, fences, agricultural erections and other necessary improvements (4 KenPs, Com. 73 ; 5 Barh. 339 ; 26 Id. 409 ; 1 Paige, 573 ; 3 Sandf. Ch. 601), but has no right to dig up and use soil for the manufacturer of bricks for sale (26 Wend. 115 ; 2 Hill, 157) ; he is bound to pay CBEATION ANB DIVISION OF ESTATES. 7 interest on incumbrances, ordinary taxes, and such like charges for the purpose of preserving the estate from loss and forfeiture (3 Edw. Oh. 312 ; 4 Kent. 75 ; 2 Brad. 311 ; 22 N. T. 200), and is liable for waste (4 Kent's Com. Ill ; 2 Edm. R. 8. p. 344, § 1, and 1 Id. p. 701, § 8). Tenants for life may make under-leases, which will possess all the rights and privileges in- cident to the original estate ; subject of course to be defeated by the death of the person upon whose life the first estate depends. A tenant pur autre vie who continues in possession without the consent of the owner after the determination of the life estate, is at common law a tenant by sufferance, but by statute has been declared a trespasser (Livingston «. Tanner, 14 N. T. 64 ; and see 8 Abb. N. 8. 37). Bemedy on lease for life. Any person having any rent due upon any lease for life or lives, may have the same remedy to recover such arrears, by action of debt, as if such lease were for years (1 Edm. B. 8. p. 697, § 19). Liability for holding over after determination of certain estates. Every person, who, as guardian or trustee for an in- fant, and every husband seized in right of his wife only, and every other person having an estate determinable upon any life or lives, who, after the determination of such particular estate, without the express consent of the party immediately entitled after such determination shall hold over and continue in possession of any lands, tenements, or hereditaments, shall be adjudged to be a trespasser; and every person, and his executors and administrators, who shall be entitled to such lands, tenements or hereditaments, upon the determination of such particular estates, may recover in damages against every such person so holding over, and against his, her, or their executors or administrators, the full value of the profits received during such wrongful possession {Id. p. 700, § 7). o LANDLOBD AND TENANT. III. Of estates for years. A general occupation of premises is treated as from year to year whenever the reservation of rent or other circumstances indicate an annual holding {Taylor'' s L. & T. §§ 54, 55), but not where the agreement for occu- pation provides for occupation for a shorter period ; as for example, a single quarter or month (Wilkinson v. Hall, 3 Bing, N. C. 508 ; Blamenberg v. Myres, 32 Cal. 93 ; Secor v. Prectana, 37 III. 525), and a statute appli- cable to the city of New York, provides that " Agreements for the occupation of lands or tene- ments in the city of New York, which shall not partic- ularly specify the duration of such occupation, shall be deemed valid until the first day of May next after the possession under such agreement shall commence, and the rent under such agreemnt shall be payable at the usual quarter days for the payment of rent in the said city, unless otherwise expressed in the agreement" (1 Edm. B. S. p. 695, § 1). In the city of New York, a tenant who holds over, and remains in possession of premises leased to him at a certain rent, with the assent of the owner, after the expiration of the term, without any new agreement as to the rent, becomes a tenant from year to year, and liable for the rent, at the same rate, up to the first of May next following (Witt ». The Mayor, 5 Roht. 248 ; and see Hunt v. Wolfe, 2 Daly, 298; Conway v. Starkweather, 1 Den. 133) ; and the rule seems to be, that where a tenant holds over after the expiration of his term, the law will at the option of the landlord, imply a new hiring upon the terms and conditions specified in the former lease (Brewer ti. Knapp, 1 Pick. 332 ; Ellis «. Paige, Id. 43 ; Fronty v. Wood, 2 Hill [& C] 367 ; Moore v. Beasley, 3 Ham. 294 ; Diller o. Eoberts, 13 S. & R. 60 ; Bacon v. Brown, 9 Conn. 334 ; Dorrill v. Stevens, 4 McCord, 59) ; and the rule is said CREATION AND DIVISION OF ESTATES. 9 to be the same where the holding over is personal or by tenants placed there by the tenant (Bacon v. Brown, 9 €ann. 334). Where premises, situate in the city of New York, were demised for a term over six and less than nine months, at the yearly rent of three hundred dollars, payable quarterly, it was held, that the time of the first payment of rent was not deferred until three months from the date of the lease, but that the rent was paya- ble on the usual quarter days for the payment of rent in the city, happening after the date of the lease (Wolf V. Merritt, 21 Wend. 336) ; and see the construction put upon somewhat similar terms contained in a lease of lands outside of the city of New York (Curtis v. Miller, 17 Barb. 477), and as to implied tenancies, see Mar- quart ■». La Varge (5 Duer, 559). Where possession is taken under a parol lease void as to the term, if the premises are situate in the city of New York, the statute designates its termination (Tag- gard V. Roosevelt, 2 E. B. S. at p. 105), and as to presumption as to the term, see Clarke v. Richardson (4 B. D. JS. 173). Definition of the word " year." Whenever the word year or years is or shall be used in any statute, deed, verbal or written contract, or any public or private instrument, the year intended to be taken shall be taken to consist of 365 days ; a half year of 182 days; and a quarter of a year of 91 days ; and the added day of a leap year, and the day immediately preceding, if they shall occur in any period so to be computed, shall be reckoned together as one day (1 Udm R. 8. p. 563, § 3), Montlily tenancies. A renting of premises by the month, and which is to be from month to month,, can bear but one interpre- 10 LANDLORD AND TENANT. tation, viz. : that, to be continued, it must be renewed monthly ; and that to terminate the tenancy, a month's notice is not necessary (The People v. Goelet, 64 Barh. 476). In the case just cited, the contract was for the letting of a store in Third Avenue, for the month of August, and the Court said, "The contract for August was to the first of September. The receipt given on the first of September was for rent in advance for Sep- tember. It contained no agreement for extending it beyond that time, and left the contract as originally made to be from month to month" (76. at 481, and see The People ex rel. Gledhill v. Scha,ckno, 48 Barb. 551). Under a hiring from month to month, the acceptance of a second month' s rent by the landlord merely oper- ates as a renewal of the tenancy for another month upon the same terms, and either party to such a ten- ancy may determine it at the end of any month, without notice (Gibbons v. Dayton, public admr., 4 Hun. 451, reported in full in Chapter IV= post). Where a monthly tenant occupies rooms of a land- lord, with an agreement to pay rent in advance, and leaves the latter part of the month, he is not liable for the rent of the subsequent month (Fash t\ Kavanagh, 24. How. 347). Coustrnction of the word "month." Whenever the term "month" or "months" is, or shall be used in any statute, act, deed, verbal or written contract, or any public or private instrument whatever, it shall be construed to mean a calendar, and not a lunar month, unless otherwise expressed (1 Edm. B. S. p. 563, § 4). IV. Of estates at will and by sufferance. Tenancy at will is said to exist where lands or tenements are let by one man to another, to have and CEEATION AXD DIVISION OF ESTATES. 11 to hold of him at the will of the lessor ; by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain sure estate ; for the lessor may put him out at what time it pleaseth him (Co. Lit. vol. 1, p. 637). The dif- ference between a tenant at will and a tenant by suffer- ance is, that a tenant at will is always by right, and a tenant by sufferance entereth by lawful lease, and holdeth over by wrong. A tenant at sufferance is he that at first came in by lawful demise, and after his estate ended coutinueth his possession and wrongfully holdeth over {lb. p. 649) ; in short, any one who con- tinues in possession without agreement, after a particu- lar estate is ended, is a tenant at sufferance (12 Barh. at p. 484) ; but such a tenancy will not attach, unless the landlord negligently omits to put the over-holding tenant out, within a reasonable time after the expira- tion oi his term, for the relation exists only by the laches of the landlord (11 Wend. 617). A tenancy at will can scarcely exist in the city of New York (The People V. Groelet, 64 Barb, at p. 481), unless, perhaps, the in- tention to create such a tenancy is declared in and by the words of the demise (Post «. Post, 14 Barb. 253), for if the agreement under which the premises are held does not particularly specify the duration of such oc- cupancy, it shall be deemed valid, by force of the sta- tute {tiide ante, p. 8) until the first day of May next after possession under such agreement shall commence. In Rowan v. Lytle (11 Wend. 617), it was held that the tenancy by sufferance was created not by the con- sent, but by the laches of the owner, and that at the expiration of the lease, the parties stand in some rela- tion to each other ; that when the possession is con- tinued without the consent of the landlord, the law says the person in possession is tenant at sufferance. But for the purpose of giving the statute a fair con- struction and beneficial operation, no notice to quit is held to be necessary, unless the landlord has un- necessarily delayed bis proceedings ; and that the object 12 LANDLOED AND TENANT. of the Legislature will be best promoted by holding that such notice is not necessary, unless the landlord has permitted the tenancy to continue for such a length of time as to imply assent, and that a delay to be called laches ought to be of longer continuance than three months, and should be accompanied by some evidence of negligence, and that if the landlord in such a case after- wards accepts rent, the tenancy will be converted from sufferance into one from year to year, and in Conway ». Starkweather (1 Ben. 113), it was held that where a tenant under a demise for a year or more holds over after the end of the term, without any new agreement with the landlord, he may, at the election of the land- lord, be treated either as a trespasser or a tenant holding upon the terms of the original lease, and tfiat distrain- ing for rent payable after the expiration of the original term, is an election by the landlord to consider him a tenant, and that the over-holding tenant being a wrong- doer has no such election, and after holding over, he is not at liberty to deny that he is in as tenant, if the land- lord chose to bold him to that relation {IDenio, 113 ; 5 Robt. 248 ; 2 Daly, 298). See the comments ou the rule laid down in Eowan c. Lynde (1 1 Wend. 616), in the note to § 718 of Taylor's L. & T. 5th ed. PARTICULAR ESTATES. 13 CHAPTER III. DETERMINATION OF PARTICULAR ESTATES BY SERVICE OF NOTICE TO QUIT. A notice to quit will be taken to be a good notice if the tenant could not mistake its nature ; but the court will not construe a notice in a manner at variance with its express language, even if the effect of adhering to such language would be to make the notice bad. So no- tices dated in the wrong year (Duke of Bedford v. Kightley, 7 T. H. 63), or misdescribing the premises (Cox V. Doe, 4 Bsp. 185), or their situation have been held good (Armstrong o. Wilkison, 12 A. c& B. 743), and under the statute of this State, notice served by the landlord upon a tenant at will to terminate his tenancy, takes eflfect in thirty days after service, and the specification therein of a day on which the time will expire, which will be less than thirty days from time of service, will not vitiate the notice (Burns v. Bryant, 31 iV. y. 453 ; People v. Shackno, 48 Barb. 551), and a notice to remove in thirty days, served in a month which contained only thirty days, was held to be a month's notice (McGuire v. Ulrich, 2 Abb. 28). Notice to quit is never required where the parties have, by mutual agreement, fixed the terms on which the lease is to ter- minate (Allen «. Jaquish, 21 Wend. 628) under a parol agreement for renting for premises for one month from August 1, 1866, and for each successive month there- after until the landlord should want the premises for his own use, whereupon the tenancy should expire ; held, that notice of thirty days was not necessary to terminate the tenancy (People «. Schackno, 48 Barb. 55] ), and a tenant hiring from month to month is not 14 LANDLORD AND TENANT. entitled to notice to quit (Gibbons v. Dayton, 4 Hun. 451). The object of the statute is to inform the tenant when his term expires ; in other words, when he must quit the possession. In case of tenancy for a year, the lease contains the information, and the statute does not require any other notice (Rowan v. Lytle, 11 Wend, at p. 619), a tenant for the life of another who, without the consent of the owner, continues in possession after the determination of the life estate, is under 1 E. 8. 749, § 7, a trespasser ; and is not entitled to notice to quit before action (Livingston v. Tanner, 14 N. Y. 64 ; Tor- rey v. Torrey, 14 N. Y. 430); one entering under a parol agreement for a lease, the rent to be paid monthly, who refuses to accept the lease becomes a common-law tenant at will or by sufferance, and is liable to be ejected im- mediately ; but if the parol agreement was for a term exceeding one year, and, therefore, void by the statute, the tenancy after the acceptance of rent is from month to month, and the tenant is entitled to a month's notice (Anderson v. Prindle, 23 Wend. 616 ; aff'g 19 15. 391)jJ When a tenant is in possession under a parol agreement void by the statute of frauds, and has occu- pied for a year, paying the rent monthly, this creates a tenancy from month to month which can only be termin- ated by a month' s notice to quit, expiring with the end of some month, reckoning from the beginning of the ten- ancy (The People «. Darling, 47 iV. Y. 666), and if the premises are situated in the city of New York, and the parol lease is void as to the term, the statute treats it as a tenancy for no specified term, and designates its ter- mination to be on the first of May following (Taggard ■0. Roosevelt, 2 M B. S. at p. 105). A renting of premises bj tlie month, and which is to be from month to month, can bear but one interpretation, viz. : that, to be continued, it must be renewed monthly, and to terminate the tenancy no tARTICULAE ESTATES. 15 notice is necessary (The People ?). Groelet, 64 Barh. 476 ; see also Gibbons ?'. Dayton,. 4 Kun. 451). Tenancy from year to year. A tenacy from year to year is, under the provision of the revised statutes, for the summary dispossession of tenants, a tenancy for one or more years. Therefore, a tenant from year to year may, after the expiration of his term, that is, at the expiration of each year he holds over the original term, be proceeded against in a sum- mary manner for his removal from the premises, with- out any notice to quit. There is no such estate as a tenancy "at will from year to year ; " its assertion is a solecism. Six months' notice to quit may be necessary to authorize the removal of a tenant, from year to year, where there is a valid lease in writing for the term of one year, and thereafter, until one or the other elects to terminate it (Park v. (Jastle, 19 Sow. 29 ; and see Nichols -0. Williams, 8 Oow. 13 ; Post w. Post, 14 Barh. 253; compare Kowlan v. Trevor 2 Sweeny, 67; and Paysley «. Aiken, 11 N. J. 494). Tenancy at will or by snifei-ance. At common law, neither a tenant at wil 1 or by suf- ferance was entitled to notice to quit before he could be ejected, although a demand of possession was always required {Taylor'' s L. & T. § 63). The statute, how- ever, provides, that "wherever there is a tenancy at will, or by sufferance, created by the tenant's holding over his term, or otherwise, the same may be terminated by the landlord' s giving one month' s notice in writing to the tenant, requiring him to remove therefrom" (1 Edm. B. 8. p. 696, § 7). In The People v. Fields (1 Lansing at p. 238), it was held that this statute relating to notices to quit does not apply to tenancies at will, as such tenancies were known at common law, and that it applies only where 16 LANDLOED AND TENANT. the conventional relation of landlord and tenant exists between the parties, and that in the so-called common- law tenancies where such relation did not exist, the former common-law right of reentry without notice remains (see 1 Lansing, at p. 238 ; 2 Cai. 169 ; 9 Johns. 267; \^ Johns. 106; Id. 235; 1 Wend. 418). And at common law, a tenancy at sufferance might be deter- mined by mere entry. No demand of possession or other notice was necessary (Livingston v. Tanner, 12 Barb, at p. 484 ; aflFd. in 14 N. T. 64). Form of notice to qnit. To Richard Roe, tenant : Please to take notice, that you are hereby required to quit, surrender, and deliver up possession of the rooms on floor, in premises known as Number , street, in the city of New York, and to remove therefrom on the first day of , 187 , pursuant to the provisions of the statute relating to the rights and duties of landlord and tenant. Dated New York, - 187 . John Doe, landlord. The notice need not state the day upon which the tenant is to quit, but it is sufficient to give notice to quit at the expiration of the current year (4 D. & JR. 248 ; 5 ^. & K 350 ; 7 Q. B. 511 ; 31 JSf. T. 453 ; 48 Barb. 551) ; and if the notice be directed to the tenant by a wrong Christian name, and he keeps it, he waives the objection, and will be bound by it (Doe v. Spiller, 6 £!sp. 70). Notice, how seiTed. The statute provides that such notice shall be served by delivering the same to such tenant, or to some per- son of proper age residing on the premises ; or, if the tenant can not be found, and there be no such person residing on the premises, such notice may be served by PARTICITLAE ESTATES. 17 afl5xing the same on a conspicuous part of the premises, where it may be conveniently read (1 Edm. R. 8. p. 696, §8), Rights of landlord after notice. At the expiration of one month from the service of such notice, the landlord may re-enter, or maintain ejectment, or proceed in the manner prescribed by law, to remove such tenant, without any further or other notice to quit {Id. § 9). Penalty on tenant not fielding^ possession after giring notice. If any tenant shall give notice of his intention to quit the premises by him holden, and shall not accord- ingly deliver up the possession thereof, at the time in such notice specified, such tenant, his executors or ad- ministrators, shall, from thenceforward, pay to the landlord, his heirs or assigns, double the rent which he should otherwise have paid, to be levied, sued for, and recovered, at the same time and in the same manner as the single rent ; and such double rent shall be contin- ued to be paid during all the time such tenant shall continue in possession as aforesaid (1 JEdm. R. S. 697, § 10 ; and see Hall v. Ballentine, 7 Johns. 636). Penalty on tenants for holding orer after notice to quit. If any tenant, for life or years, or if any other per- son who may have come into the possession of any lands or tenements, under or by collusion with such tenant, shall wilfully hold over any lands or tenements after the termination of such term, and after demand made and one month's notice in writing, given in the manner hereinbefore prescribed, requiring the posses- sion thereof by the person entitled thereto, such person so holding over shall pay to the person so kept out of possession, or his representatives, at the rate of double 38 LANDLOED AND TENANT. the yearly value of the lands or tenements so detained, for so long a time as he shall so hold over or keep the person entitled out of possession ; and shall also pay and remunerate all special damages whatever, to which the person so kept out of possession may be subjected by reason of such holding over ; and there shall be no relief in equity against any recovery had at law under this section (1 Edm. R. S. p. 697, § 11). DEFINITION OF LEASES. 19 CHAPTER IV. OF THE DEFINITION, NATITEE, AND VALIDITY OF LEASES. The act of granting an estate is called a demise, and the instrument or agreement by which it is granted is a lease (2 Bouv. Inst. 254). A lease at the common law is a grant or assurance of a present or future inter- est, for life, for years, or at will, in lands or other pro- perty of a demisable nature, a reversion being left in the party from whom the grant or assurance proceeds. A pecuniary rent, or other recompense, though not es- sential to the contract, is usually reserved, payable yearly, or at other stated times during the term. The party granting the lease is called the lessor ; he to whom it is granted, the lessee. If the instrument be executed by the lessee only, iiisnot^ilesLse {Piatt on Leases, p. 9). To make such a contract, there must be a lessor able to grant the land ; a lessee capable of accepting the grant ; and a subject-matter capable of being granted (2 Bouv. Inst. 254). No special form of words is neces- sary to constitute a lease. Whatever words are suffi- cient to explain the intent of the parties that the one shall divest himself of the possession, and the other come into it for a determinate time, are of themselves sufficient ; and will in construction of law amount to a lease for years as effectually as if the most proper and pertinent words had been made use of for that purpose ; for a lease for years being a contract for the possession and profits of lands on the one side, and a recompense of rent or other income on the other, if the words made use of, are sufficient to prove such a contract, in what form soever they are introduced, or 20 LANDLOED AND TENANT. however variously applicable, the law calls in the in- tent of the parties, and models and governs the words accordingly {FawceW s L.&T. pp. 71, 72). A lease may be made by correspondence, in which one party oiFers to take on certain terms, fully and definitely stated, and the other unconditionally accepts such offer (Chapman ». Bluck, 4 Bing. N. C. 187 ; 7 L. J. ; O. P. 100 ; seel Q. B. 506 ; 10 L. J. ; Q. B. 193) ; but when the parties are not together, the acceptance must be manifested by some appropriate act, and the manifestation put in the proper way of reaching the proposer ; a mere mental determination to accept, not indicated by speech, or put in course of indication by act, is not an acceptance (White V. Corlies, 46 If. Y. 467). It will be proper here to point out the difference be- tween an agreement for the lease and the lease itself. When an agreement for a lease contains words of pres- ent demise, and th^re are circumstances from which it may be collected that the tenant should have an imme- diate legal interest in the term, such an agreement will amount to an actual lease; but although words of present demise are used, if it appear on the whole that no legal interest was intended to pass, and that the agreement was only preparatory to a future lease to be made, the construction will be governed by the inten- tion of the parties, and the contract will be held to amount to no more than an agreement for a lease (2 Bouv. Inst. 254). An agreement to construct a wharf, to be occupied when finished by grantee, at a stipulated rent, accom- panied by words of present demise, operates as a lease (People V. Kelsey, 14 Abb. Pr. 372 ; 38 Barb. 269). Where there are apt words of demise it is a lease, not- withstanding there is added a covenant for a further lease, so held where possession was held under it (Jackson v. Kisselbrack, 10 Johns. 336 ; Jackson v. Van Hoesen, 4 Cow. 325 ; and see Hallett v. Wylie, 3 Johns. 44 ; 5 i&. 74 ; 1 Bosw. 28 ; 8 i\^. T. 44 ; 5 T. R. DEFINITION OF LEA8B3. 21 163) ; but an agreement to give a lease is not a lease, unless accompanied by actual possession (Becker «. Deforest, 1 Sweeny, 528), particularly where it is mani- fest that further conveyances or instruments were con- templated (Jackson «. Moncrief, 5 Wend. 26). The creation of tenancies is frequently evidenced by no other writing than what is commonly called a receipt, signed by the landlord or his agent, and accepted by the tenant, and the question has been frequently mooted whether these receipts in any case amounted in law to a contract between the parties. The courts in analogous cases, while adhering to thB general rule that a simple receipt is nothing more than an admission amounting to prima facie evidence of the facts stated therein, and open to contradiction or explanation by parol (Eyan v. Ward, 48 N. Y. at p. 207), have, however, limited the rule to receipts tech- nically and properly so called, and have held that where the receipt went further and embodied a contract, that that portion of it was not open to contradiction by parol {Id. ; and see also Berrian v. The Mayor, 4 Rdbt. 539 ; Coon v. Knapp, 8 N. T. 402 ; Kellogg v. Richards, 14 Wend. 116 ; Graves v. Friend, 5 Sandf. 568 ; Niles ». Culver, 8 Barb. 205) ; where, therefore, a writing be- sides containing the words belonging to a simple receipt, embraces the ingredients of a contract, e. g., the tenure, terms, and conditions of a hiring, it is in these particulars a contract, not open to contradiction by parol proof, in the absence of fraud or mistake. The question presented itself in the case of Gibbons «. Dayton, public admr. of Anna Maria Merriam, deed. (4 Hun. 451), on appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The claim was for rent of the second floor of the premises known as No. 165 Bleecker street, from May 1st, 1873, to April 1st, 1874. "It appeared from un- disputed evidence that Mrs. Merriam had resided in the premises a number of years prior to her death ; that 22 LANBLOED AND TENANT. she leased the premises ; that no lease was ever made between herself and the plaintiff, other than in the form of receipts for rent, of the following description : " Rent must be paid invariably in advance, on the first day of the month. " ISTew Yokk, Sept. 1st, 1871. " Received from Mrs. Mary Merriam the sum of sixty dollars, for one month's rent only, in advance, for second floor rooms in house No. 165 Bleecker street, ending October 1, 1871, at noon. It being expressly understood between us, the tenant and agent, or land- lord mentioned in this receipt, that this term of hiring and letting is for one month only, and will expire as aforesaid. $60. Thomas J. Gibbons." The court [New York Supreme] delivered the fol- lowing opinion : Davis, P. J.— The appellant is public administrator, and as such was appointed administrator of the estate of one Anna Maria Merriam, deceased. The respond- ent presented a claim for rent against the estate, which being disputed, was submitted to reference with the approval of the surrogate, in conformity to the statute in such case made and provided. Mrs. Merriam, the intestate, was the tenant of the respondent from month to month ; she had been accustomed to receive, on pay- ment of the monthly rent at the beginning of each month, an instrument acknowledging the receipt of the rent and expressing the term and nature of the ten- ancy. Such an instrument was executed and delivered to her about the first of April, 1873, on payment of the rent for that month. About the first of May, Mrs. Mer- riam was taken sick and went to the house of a friend, where she became so ill that she was unable to return to her rooms, and she remained at her friend's till her death, which occurred on the 6th of June, 1873. Her f nrniture and other personal property remained at the rooms leased to her by respondent until about the 29th or 30th of July, 1873. About the 28th of July, the DEFIIiriTION OF LEASES. 23 appellant received notice of ttie death of Mrs. Merriam, and was on that day appointed her administrator, and on the 29th or 3(Jth of July removed all articles of any ap- parent value from the premises previously occupied by her, and about the same time sent the keys of the rooms to the place of business of respondent, and left them with a boy in the office, with a message that they were the keys of such rooms. The respondent on learning that the keys had been sent to his office, refused to receive them, and sent them back to the office of the appellant. The clerk of the appellant also refused to receive them. On the 16th of February following, the respondent entered the rooms, cleaned them out and repaired them, removing the articles of no value left in them, to the cellar of the building. The referee held, that the intestate was tenant from month to month, that there had been no lawful surrender of the premises, and that the appellant was liable for the rent down to the time of the entry of respondent on the 16th of Feb- ruary, 1874, at the rate of sixty dollars per month, and directed judgment accordingly. It is very clear that the tenancy was from month to month. Neither party was bound to give any notice to the other in order to terminate the tenancy at the expiration of any month. The landlord could have -removed the tenant by summary proceedings, without notice ; and so the tenant could lawfully have left the premises at the expiration of any month, without no- tice, and without being bound to pay further rent (People ex rel. Gledhill v. Schackno, 48 Barh. 551 : People V. Goelet, 14 Abb. Pr. JV. S. 130). The death of Mrs. Merriam did not change the character of the tenancy, and the appellant is not liable beyond the obligations that rested and would have remained upon her had she continued to live and retain her possession down to the day when appellant removed the property and sent the keys to the respondent's office. She would in that case have been chargeable with rent for the 24 LAWDLOED AND TENANT. months of May, June, and July ; hut Tier tenancy would Jiace terminated with the month of July. The appellant acted promptly and with apparent good faith. He was appointed administrator on the 28th of July, and on the next day, or on the 30th, moved the furni- ture and everything of value from the premises, and sent the keys to the landlord. This was a complete termination of the tenancy, and full notice that the term would not be renewed for another month. A few articles were left in the rooms, but they seem from the evidence to have been nothing more than worthless things, which the referee finds to have been valueless. The rooms were excessively dirty, but the litter and filth, and worthless fragments and articles which ten- ants are often accustomed to leave behind them, have never been held to constitute a continuance of tlie ten- ancy. The landlord' s remedy, if any, for such an in- jury, is quite different from treating the tenancy as renewed by the omission to carry everything away, whether valuable or not. The referee has charged the administrator with rent after the month of July, on the ground that there was no formal surrender by him of the premises to the landlord. No form was necessary under the facts of the case, beyond a removal at or be- fore the expiration of the month, and the restoration of the keys to the landlord so that he could enter upon possession. The case is not like that of Pugsley v. Aiken (11 N. T. 494), where the lease was for " one year and an indefinite period thereafter," for in this case the express terms of the lease are " that this term of let- ting and hiring is for one month only, and will expire " at noon on the first day of the following month. There should have been a recovery, therefore, only for the rent of the months of May, June, and July, with in- terest on each month's rent from the time it was paya- ble. The judgment should be reversed, and a new trial granted, with costs of the appeal to the appellant, un- less the respondent shall stipulate to modify the judg- DEFINITION OF LEASES. 26 ment by reducing it to the rent for the months above named and interest, in which case it may be affirmed as modified, without costs to either party on this ap- peal as sgainst the other." Daniels and Brady, JJ., concurred. In Blumenberg v. Myres (32 Cal. 93) the court said: "The doctrine that where the lessee holds ovei' and the lessor receives rent accruing after the expiration of the term, a new tenancy arises for a further term, subject to the covenants and conditions of the original lease, is true as a general rule ; and the reason is, that the receipt of the rent is considered as an acknowledg- ment of a subsisting tenancy. But it does not follow that the new term must necessarily be a year. Where the former lease was for less than a year, as a quarter or a month, or where the term, though extend- ing to a year or more, was composed of such periods, there is no ground for holding that the new term, pre- sumed from the holding over of the tenant and the receipt of rent by the landlord, extends beyond one of the periods of the tenancy. The tenant who enters under a lease for a month, and holds over, and during the second month pays rent, is not entitled to claim a new term of one year, but he becomes a tenant from month to month. When the tenancy is found from the fact of the holding over of the tenant and the acknowledgment of the landlord, it is presumed to be of the same character — as annual, quarterly, monthly, &c., and upon the same covenants and conditions as in the previous tenancy. It rests upon implication alone. But if the parties make an express agreement relating in any respect to the new tenancy, then in that respect there is no room for implication." This case also holds that a receipt specifying the tenure amounts in law to a lease. Certain leases to be in vrriting. A lease for a year or less need not be in writing, but if it be for a longer term than one year, it must be 26 I,ANDLOED AND TENANT. in writing, subscribed by the party making tbe same, or by his lawful agent thereunto authorized by writing (Post V. Martens, 2 BoM. 437 ; Porter v. Bleiler, 17 Barb. 149). The statute provides that "no estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over and concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or convey- ance in writing, subscribed by the party creating, grant- ing, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing" (2 Bdm. B. S. p. 1B9, § 6). ' ' Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any in- terest in lands, shall be void, unless the contract, or some note or memorandum thereof, expressing the con- sideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made" {Id. §8). " Every instrument required to be subscribed by any party, under the last preceding section, may be sub- scribed by the agent of such party lawfully authorized " {Jd. § 9). ' 'And leases for years, although chattels real, are no longer deemed terms as at common law, but estates" (Averill, v. Taylor, 8 iV. Y. 44). Yalidiiy of certain leases. Fnlure term. A parol lease of land, for one year, to commence in futuro is not within the statute, and is valid ; the year in the statute refers only to the term (Taggard « Roosevelt, 2 E. D. Smith, 100 ; S. C. 8 How. Pr. 141 Young B.Dake, 5 N. T. 463; overruling 7 5ar6. 191) and a parol agreement to give a lease for a term exceed ing one year is void (Anderson u. Prindle, 23 Wend. 616 ; afiE'g 19 Id. 391 ; Dung v. Parker, 52 iV. T. 494) DEFIliriTION OF LEASES. 27 CoTenants. An express covenant will control an implied one, for the maxim of the law is " expressumfacit cessare Right to renewal of lease. The right of renewal constitutes a part of the ten- ant's interest in the land; and the grant of the addi- tional term is for many purposes considered as a con- tinuation of the former lease (Winslow ». Tighe, 2 Ball 6 Beat. 195, 205 ; Kawe «. Chichester, 2 Amb. 715, 719 ; S. C. 1 Bro. O. C. 198, n. ; S. C. nom. ; Bromfield v. Chichester, and Raw v. Duthelly, 2 DicJc. 480 ; Eandall V. Russell, 3 Meriv. 197). A landlord is not bound to renew the lease without an express covenant to do it. And covenants for a continual renewal are not favored, for they tend to create a perpetuity, and have been said to be equivalent to an alienation of the inherit- ance. Covenants of renewal run with the land, and bind a grantee of the reversion. A covenant to renew implies the same term and rent, and perhaps the same condition, excepting that a covenant to renew a lease under the same conditions contained in the original lease is satisfied by a renewal of the lease omitting the covenant to renew (Carr v. Ellison, 20 Wend. 178 ; Tritton v. Foote, 2 Bro. C. G. 636; 2 Oox, 114: ; Iggulden V. May, 7 East, 237 ; Hide v. Skinner, 2 P. Wins. 197) ; continuing in possession amounts to an election to renew (Kelso «. Kelly, 1 Daly, 419) ; and as to what amounts to waiver of a condition requiring notice, see Viany t>. Ferrar, 5 Abb. N. 8. 110 ; and see 2 Daly, 213 ; and as to arbitrations as to terms of renewal, see 5 Aib. Pr. N. S. 110 ; 1 Daly, 39 ; 7 Pobt. 468. A covenant in a lease that the lessee shall have "the refusal of the premises at the expira- tion of the lease" for a specified term, is a coven- ant to renew the lease at the same rent for such term. 38 LANDLORD AND TENANT. It is violated by the lessor if he refuse to give a new lease except at an increased rent, and the acceptance by the lessee of a new lease at the increased rent, after such violation, he at the time protesting against the right to exact the increased rent, and claiming to reserve the right of action for the breach of covenant, is not a waiver of the covenant. The lessee in such a lease is not compelled to wait until the actual termina- tion of the lease before he makes his election to have the lease renewed. The lessor is bound to renew wben the lessee makes Ms election and demands his renewal. Where the covenant is an independent one, the fact that the lessee was liable to the lessor for rent upon another covenant contained in the lease does not excuse its performance (Tracy v. Albany Exchange Co. 7 N. Y. 472). Where the instrument is silent as to the party who is to exercise the right to determine, the lessee only has the option of determining the lease at the specified time, on the principle that where the words of a grant are doubtful, they must be construed more strongly in favor of the grantee (Dann v. Spurrier, 3 B. & P. 399 ; Price v. Dyer, 17 Ves. 356 ; Doe v. Dixon, 9 Hast, 15 ; Groodright «. Richardson, 3 T. H. 462). A executed to B a lease of certain premises for one year, containing a clause in these words: "B to have the privilege to have the premises for one year, one month and twenty days longer, but if he leaves he is to give four months' notice, before the expiration of the lease," and it was held, that the lease created a term for the full period of two years, one month and twenty days, defeasible at the election of the tenant, after one year, by giving notice of his intention to leave the premises four months previous to the expiration of the year (Chretien v. Doney et al., I JST.'T. 419). A lease was executed for a term commencing the first day of July, 1853, and ending the first day of July, 1855, "with the privilege of two years more if desired," one month before the expiration of the period specified, DEFINITION OF LEASES. 29 at a certain yearly rent, to be paid monthly during the term, with a clause expressing that the lessees had hired and taken the premises, "for the term and at the rent aforesaid," and that they agreed to pay the rent, and it was held, that it was not contemplated by the parties that in case the lessees should desire the premises for the addi^nal two years, a new lease should be made, embraci^^he farther time ; but that it was intended the prM^T lease, on notice being given, should cover the whMe period ; and that the agreement to pay rent was coextensive with the entire term of the lease, not only as it was originally fixed, but as it should be ex- tended according to the provisions of the lease (House V. Burr, 34 Barb. 525) ; and equity will relieve a lessee who fails to comply with a condition respecting notice in a covenant for the renewal of his lease, and compel specific performance thereof, where it appears that he has given a fair intimation of his intention to renew, and no injury has been done to the other party ; but not where there have been gross laches, or where the neglect was wilful (Reed v. St. John, 2 Daly, 213). Power of agent. A lease signed^as agent of the lessor, by a person not having atithority in writing, so as to sign, can not create the estate purported to be created in it, and is rendered void by statute (Post v. Martens, 2 Hobt. 437 ; Porter ». Bleiler, 17 Barh. 149) ; although an agent must have written authority to make a valid lease for more than one year, an agent to sell real estate may contract in writing, without written authority, the lan- guage of the statute being differently construed in the two cases (Worrell v. Munn, 5 N. Y. 229 ; 8 N. Y. 160 ; 1 Parsons on Contracts, 4th ed. p. 47) ; and as to ratification, see Commercial Bank v. Warren (15 N. Y. 577); and an agent to rent premises and collect rents has no power to consent to the substitution of a new tenant 30 LANDLORD AND TENANT. (Wilson V. Lester, 64 Bari. 431), and a sealed agree- ment or lease, signed by an agent in his own name, de- scribing himself as "agent" of the owner of the pre- mises, does not bind the owner. A special agreement under seal, executed by an agent, must appear on its face to be the contract of the principal, or the principal will not be bound (Dean v. Eoesler, 1 Bilt. 430), Rights of lodgers. Lodgers are entitled to all the privileges of tenants, and'enjoy the same protection as to payment of rent and of notice to quit, terminable according to the terms of the letting. If a man takes lodgings on the first or second floor of a house, he has a right to the use of the door- bell, the knocker, the skylight of the staircase, and the water-closet, unless it is otherwise stipulated at the time of taking lodgings ; and if the landlord deprives him of the use of any, an action lies (§ 67 Taylor's L. & T. 5th ed. citing Underhill «. Burrows, 1 O. & P. 36), and the doctrine of caveat emptor has no application to a demise of ready furnished lodgings (Smith ». Manable, 1 Oa/rr & Marahm. 479). Effect of occupation under void lease. Occupation under a lease void as to the term, is valid in other respects and inures as a yearly tenancy (Schuyler v. Leggett, 2 Cow. 660 ; People v. Rickert, 8 Id. 226 ; 5 T. It. 471 ; 8 Id. 3 ; 31 iV^. Y. 514 ; 33 Id. 245) ; but as to a tenant paying a monthly rental, it inures as a hiring from month to month (Anderson v. Prindle, 23 Wend. 616 ; aff'g 19 Id. 391 ; The People 0. Darling, 47 N. T. 666) ; and if the premises are sit- uated in the city of New York, and the parol lease is void as to the term, the statute treats it as a tenancy for no specified time, and designates its termination to be on the first of May following (Taggard «. Roosevelt, 2 E. D. S. at p. 105) ; and although a lease be void for want of written authority in the agent to execute it, it may still be referred to, to regulate and ascertain the rights of the parties during the actual existence of the tenancy (Porter ». Bleiler, 17 Barh. 149). Legal meaning of certain terms. Laud. — The term land comprehends any ground, soil, or earth whatsoever, which is not separated from the earth, as meadows, pas- DEFINITION OF LEASES. 31 tures, woods, waters, marshes, furze, and heath. It has an indefinite extent upward and downward; no man can therefore build so as to overhang his house on his neighbor's ground. The buildings which are erected upon land are a part of it, for whatever is built upon the soil, is an accessory to the soil. Hence, if a man grant or devise the land without mentioning the buildings, the latter will pass (3 Bouvier Inst. pp. 156, 157J. More or less. — These words are used as matter of general descrip- tion, and as intending to cover a small difference one way or the other in the quantity of the premises demised. Beal property, in the technical phraseology of the law, consists of lands, tenaments, and hereditaments {Hilliard on Beal Property, vol. 1, p. 1). Tenement. — The word tenement in its most extensive signification comprehends everything which may be holden, provided it be of a permanent nature. In its most confined and vulgar acceptation, it means a house or building (2 Bov.v. Inst. p. 167) ; but it is also used in a much more enlarged sense, as signifying land, or any corporeal in- heritance, or anything of a permanent nature, which may be holden. And where it was used in a statute, providing a summary remedy for landlords to recover possession, it was held that as the act was a remedial one, the largest senae of the word should be adopted (Sackett V. Wheaton, 17 Pieh. 105). Hereditaments. —The terni hereditaments includes lands and tenements (1 Hilliard on Beal Property, p. 1). Mbsstjage or House. ^These are synonymous terms (3 T. B. 503). Apfuktenances. — This word will pass only things which have been used together with the house or land demised, or which are reputed or accepted as part thereof (Fawoett'sL. . Bennet (1 Gamp. 348), where an action was brought to recover for clothes sold to a prostitute, and the defense was that the ^ articles were sold for the purpose of enabling her to carry on her business of prostitution, Lord Ellenborotjgh said it must not only be shown that the plaintiff had notice of the defendant' s way of life, but that he sold the goods to enable her to carry it on (see also Gray v. Mattheas, 5 Yes. Jr. 291). In Trovinger v. McBurney (5 Cow. 253), which was for the board of a female who had been living with the defendant, and had by him an illegitimate child, and the defense was that the contract was made with a view of facilitating the con- tinuance of the state of prostitution between the de- fendant and the female boarder, the court said, ' ' The simple circumstance that the plaintiff had knowl- edge of the previous cohabitations did not furnish legal ground for an intent to sanction their repetition ; something more was necessary." These authorities are referred to as establishing the doctrine that in order to avoid a contract of leasing upon the ground of the illegal nature of the occu- pation of the premises, the landlord must be connected with the illegal act complained of, by previous knowl- edge or notice, so that the illegal nature of the occupa- tion enters into and actually forms part of the contract, by necessary implication, for, as the court held in Gibson v. Pearsall (1 E. D. Smith, 90), a lease is not 40 LANDLOED AND TENANT. void under the laws prohibiting gaming, unless the lessor at the time of making the agreement was a party to the illegal act, and let the premises in furtherance thereof. In Updike v. Campbell (4 £J. D. 8. 570), it was held that a contract letting premises for the very purpose of conducting a bowling alley is void, but that letting premises with knowledge of facts from which the lessor may reasonably suppose an intention on the part of the lessee to keep a bowling alley, followed by the actual use of the premises for that purpose within the observation of the lessor, is not of itself sufficient, unless the lessor is clearly proved a direct party to the to the illegal ihtent, and performs some act plainly in aid and furtherance thereof. In Jackson v. Walker (5 Hill, 27), which was an agreement to pay money to keep open the log cabin on Broadway, contrary to the law relative to elec- tions, it was made a part of the agreement that the building should be used for the prosecution of the success of a political party, and it was held to be void for that reason, as a violation of the election laws, and the judgment was afterwards affirmed (7 Rill, 387). In Kneiss v. Seligman (5 How. Pr. 425), it was de- cided that it does not affect the legality of the sale of goods, that the vendor knew that they were to be used by the purchaser for an unlawful purpose, unless the vendor does some act beyond the mere sale, in aid or furtherance of the unlawful object, and that bare knowledge on the part of the vendor that the vendee intends to put the goods to an illegal use, which inten- tion may or may not be followed up, will not vitiate the sale nor deprive the vendor of his remedy for the purchase money. In Smith v. White (1 L. B. Eq. 626; 35 L. J. Ohanc. 454 ; 14 W. E. 510 ; 14 L. T. N. S. 350 ; 2 O. B.), where a lessee of a house which to his knowledge had for VALIDITY OF LEASES. 41 many years been used as a brothel, assigned the lease absolutely, knowing that the assignee intended to use the house for the same purpose, and where the original lease contained covenants to deliver up at the end of the term, in good repair, and not to use the house as a brothel ; and the assignment contained a covenant to indemnify the lessee from the covenants in the lease, and the lessee having been compelled to pay for dilap- idation at the end of the lease, sought to recover the amount from the estate of the assignor, which was be- ing administered in equity, and it was held that the assignment, and everything arising out of it, were so tainted with the immoral purpose that the lessee could not recover. In Holmead ■». Maddox {Circ. Gt. D. O., 2 Oranch Q. Gt. 161), it was held that the owner of a race-field, who knowingly let it for the purpose of public races and for booths and stands for the accommodation of licentious and disorderly persons for the purpose of unlawful gaming, and of gross immorality and de- bauchery, to the corruption of good morals and man- ners, could not recover the rent in an action of cove- nant. In Rosenbaum w. Grunter (3 E. D. 8., 203), it was decided that a fraudulent representation, by the lessee of a house, as to the amount paid by him under his lease, will not avoid a contract made by him for hiring to a third person a part of the premises, at a specified rent, it being within the power of the latter to ascertain the value by a personal examination. The rule as applicable to vendor and vendee of real estate is other- wise ; and if the vendor misrepresent the rental of the property, it is ground for refusing to perform the con- tract (Phillips V. Oonklin, 2 T. & G. Sup. Gt. Bep. 619 ; 58 N. Y. 682). In Ellis V. Andrews (56 iV. Y. 83), the Court of Ap- peals decided that a false statement, as to the value of property, made by a vendor for the purpose of obtain- 43 LANDLORD AND TBNANT. ing a higher price than he knows the property is worth, will not sustain an action of fraud by the purchaser who contracted relying upon the statement, and that the purchaser in such a case must rely upon his own judgment as to value ; although an action on the case may be maintained by the purchaser of lands against the seller for fraudulently misrepresenting the bounda- ries of the lands (Clark v. Baird, 9 If. T. 183) ; and where one conveys to another his right in real estate, an action will lie for a fraudulent representation as to the territorial extent of snch right ( Whitney v. Allaire, 1 N. Y. 305). In the famous case of Laidlaw o. Organ (2 Wheaton, 178) Chief Justice Maeshall said : " The question in this case is, whether the intelligence of extraneous cir- cumstances which might influence the price of the commodity, and which was exclusively within the knowledge of the vendee, ought to have been commu- nicated by him to the vendor. The Court is of opinion that he was not bound to communicate it. It would be difficult to circumscribe the contrary doctrine within proper limits, where the means of intelligence are equally accessible to both parties. But at the same time each party must take care not to say or do any- thing tending to impose upon the other." The suppressio veri is not therefore necessarily a ground of fraud, although the suggestio falsi is, as a rule ; for the concealment or non-disclosure of facts, to amount to a fraud, must be of those facts and circum- stances which one party is under some legal or moral obligation to communicate to the other, and which the other has a right to know^ not merely mforo conscien- ticB, but juris et de jure (Van Arsdale «. Howard, 5 Ala. N. 8. 596 ; s. p. Barnett v. Stanton, 2 Ala. N. S. 181 ; Truebody v. Jacobson, 2 Cal. 269 ; Aorston v. Kidgway, 18 III. 23 ; Jenkins v. Simpson, 14 Me. 364 ; Young V. Bumpass, 1 Freem. \Miss.\ Ch. 241; Mc- Adams v. Cates, 24 Mo. 223 ; Trigg v. Read, 5 Humph. VALIDITY OF LEASES. 43 529 ; Ingram X). Morgan, 4 Id. 66 ; Dickinson v. Davis, 2 Leigh. 401) ; unless, perhaps, in a case where one party artfully conceals from another material facts within his knowledge, of which he knows the other party has neither knowledge nor the necessary means of informa- tion (Prentiss v. Russ, 16 Me. 30 ; Durell v. Haley, 1 Paige, 492). In Wallace v. Lent (1 Daly, 481), it appeared " that a landlord rented a dwelling-house to a tenant without disclosing the fact, of which he was aware, that there was a deleterious stench in the house, proceeding from some unknown cause, which rendered it unfit for hab- itation. The tenant, ignorant of the circumstances, went into possession with his family, and in a very short time all the inmates of the house experienced the injurious stench, producing vomiting, &c., and it was held that the concealment was a fraud on the part of the landlord, and that the tenant was justified in leav- ing." In Westlake v. Degraw (25 Wend. 672), the ques- tion presented was whether the tenant was justified in putting an end to the lease under which he held, on account of certain noxious smells, set up as a defense, and the Supreme Court (per Nelson, C. J.) said : "It must be assumed, that no fraud was practiced upon the tenant by the landlord, as that has been negatived by the verdict of the jury. It appears, also, that the alleged nuisance existed at and before the defendant made the contract and entered into the possession ; and that it arose from the carcasses of dead rats under the steps of the house. The discovery was made by the succeeding tenants ; and it seems to me that ordinary vigilance on the part of the defendant would have en- abled him to have done the same. He not only appears to have been remiss in this respect himself, but even refused to allow a mechanic, sent by the plaintiff, to take the necessary steps to detect and remove the cause of the nuisance. It was readily removable when dis- 44 LAWDLOBD AND TENANT. covered, and in its own nature was of but temporary duration. It is an inconvenience to which all buildings are more or less subject at times ; but wbicli, with, ordinary skill and attention, may be abated by the tenant. It would, I apprehend, be the introduction of a new principle into the law of landlord and tenant, and one liable to great abuse, to give countenance to this defense." Judgment for plaintiff affirmed. Remedy in case of fraud. The sweeping assertion frequently made, that fraud vitiates every contract, must be limited somewhat in its application, for the innocent party may waive the fraud and insist upon the contract, while the fraudulent party can not assert his fraud, and claim as his right any advantages resulting from it. The defrauded party has also a choice of remedies ; he may rescind the con- tract for the fraud, or may, as in case of warranty, re- tain the property and recover the damages sutfered in consequence of the misrepresentations (1 JV. F. 305). If he desires to rescind, he must offer so to do within a reasonable time after the discovery of the fraud (Rosen- baum V. Grunter, 3 E. D. S. 203 ; Wallace v. Lent, 1 Balp, 481 ; 46 Barb. 467 ; 2 Par. on Con. 4th ed. 277 ; Kerr on Frauds, 299), and in order to rescind the con- tract, he must restore the other party as nearly as pos- sible to the same condition th^t he would have been in, if the contract had not been made (Minturn v. Mann, 7 N. T. 220 ; Mason v. Bovet, 1 Den. 69 ; Nichols v. Pinner, 18 JST. Y. at p. 312 ; Nichols v. Michael, 23 Id. at p. 272; Sweetman v. Prince, 26 Id. at p. 227; Cobb V. Hatfield, 46 Id. 533), and in order to rescind the contract, it is supposed that the tenant ought to offer back the lease, with any writing necessary to re- invest the title in the lessor (Central Bank v. Pindar, 46 Barb. 467 ; Quincy e. Tilton, 7 Oreenl. at p. 279), and^ ought to surrender the keys which, in a symbolical VALIDITY OF LEASES. 45 sense, is regarded, as the possession itself (Little v. Martin, 3 Wend. 219 ; Hall ». Western Trans. Co., 34 JV. T. 284 ; see also 5 John. 335 ; 2 PicTc. 206 ; Boss on Vendors (1st Ed.), 11, 55; 11 Cush. 282; 55 Penn. 393). Election to affirm. Where a party discovers the misrepresentation of another before proceeding with a contract he must, if he can, elect whether he will waive the fraud and pro- ceed with the contract, or whether he will on account of the fraud throw it up, and the election when made is conclusive ; for example, in a case where A. engaged to carry away certain rubbish for B. at a specified sum, found upon commencing his work that B. had made fraudulent representations as to the quantity of rub- bish, but nevertheless went on with the work, and then sought to recover more than the sum specified by the contract, and it was held that by going on with the work he had waived the fraud, and could not recover except upon the special contract (Selway v. Fogg, 5 M. & W. 83), and the case of Saratoga R. E.. Co. v. Row (24 Wend. 74), is somewhat similar. In that case a contract was made for work to be done at a sti- pulated price, and it was discovered before the work was commenced, that a misrepresentation had been made in respect to its value, and the court held that on that account, th^ party engaging to do the work might repudiate the contract, but that if he did not do so, but went on and performed it, he could demand no more than the contract price. Eifect of lessee taking possession. In Whitney v. Allaire (1 N. Y. 305), it was held that wjiere one conveys or leases to another his right in real estate, an action will lie for a fraudulent repre- sentation as to the territorial extent of such right, and 46 LANDLORD AND TENANT. that the lessee, by taking possession at the commence- ment of the term, aud after having discovered the fraud, waives thereby only his right to rescind the contract, but not his right to recover the damages occasioned by the fraud. The rule seems to be that where a party has been defrauded in the purchase or sale of real property, he may rescind the contract, so as to restore the parties to the same situation they were in when the contract was made, or he may affirm it, so far as it has been executed, and claim a compensation for the fraud (White V. Seaver, 25 Barl). 235). If he has received a conveyance, he must reconvey, or offer to reconvey, or he can not rescind (Bradley ». Bosley, 1 Barb. Ch. Rep. 125 ; Moyer «. Shemaker, 5 Barb. 319), and the same is true as to personal property ( 4 Denio, 51-54: ; 2 Hill, 288-294 ; 5 Id. 389 ; 3 Sandf. 174 ; 14 Barb. 594). BIGHTS OF LANDLORD. 47 CHAPTER VI. EIGHTS OF LANDLORD. I. Time of payment of rent. n. Mode of payment. in. Tender of payment. IV. Application of payments. Time of payment of rent. The time when rent is to be paid, is to be deter- mined from the words of the reddendum if the lease be in writing, or from the oral evidence of the terms of hiring, if there be no writing, and if prior rent has been paid under the agreement, that circumstance together with the manner and time of payment, may by necessary implication aid in arriving at the cor- rect understanding of the parties as to the manner and time of payment, where the same were not other- wise intelligently expressed. In the city of New York, however, the statute in the absence of any different agreement between the parties provides that rent shall be payable at the usual quarter days for the payment of rent in said city (1 Bdm. R. 8. 695, § 1 ; Wolf v. Merritt, 21 Wend. 336) ; and a provision in a lease making the rent payable in advance, is valid and enforceable (Giles «. Comstock, 4 N. Y. 370 ; 1 Den. 113 ; 4 Oow. 576). II. Mode of payment. The landlord is entitled to his rent in lawful money jf the United States, but if the landlord accepts a check, 48 LANDLOKB AND TBWAKT. note, or bill for the rent, it will be a good payment in law, provided the check, note, or bill be paid on pre- sentation or maturity, but as a rule, however, a mere promise to pay is no payment until performed, and the taking of the tenant's check, note, or bill is not pay- ment until the obligation taken is paid (Peters «. New- kirk, 6 Cow.. 103 ; Bradford w. Fox, 38 N. Y. 289 ; Smith V. Miller, 43 Id. 171 ; Snyder v. Kunkleman, 3 Penn. 487 ; VanstSenburgh v. Hoffman, 15 Barb. 28 ; Cornell v. Lamb, 20 Johns. 407 ; Price v. Limehouse, 4 McCord, 544 ; Printems ». Helfried, 1 JSTott. & McG. 187 ; Bailey v. Wright, 3 McCord, 484), and rent is not extinguished by taking a note and chattel mort- gage to secure it (Lofsky v. Maujer, 3 Sandf. Ch. 69); and see Toby v. Barber, 5 Johns. 68 ; Muldoon t> . Whitlock, 1 Cow. 290). Indeed, nothing is considered as an actual payment which is not in truth such, unless there be an express agreement based on a good con- sideration that something short of a payment shall be taken in lieu of it (Olcott w. Eathbone, 5 Wend. 490) ; and it has been held that taking the debtor' s note will not even suspend the right of distress until it becomes due (Davis ?). Gyde, 4 Nev. & M. 462 ; Bailey v. Wright, 3 McCord, 484) ; but the supreme court of Maine have leceutly decided, that the taking of a promissory note for an antecedent debt imposes upon the creditor an obligation to wait for his pay till the note matures, with- out any special agreement to that effect (Thompson v. Gray, 63 Maine, 228, and see 9 Cow. ^194 ; 2 Barn. & Aid. 496 ; 2 Whart. 253) ; when the debtor gives his own note it is not paymeint, though receipted as such (Muldoon «. Whitlock, 1 Cow 290 ; 9 Johns. 310), but the note must be surrendered at or before the trial upon the original cause of action {Cow. Tr. § 464 ; 4 Barh. 369; 6 Id. 432; 8 Id. 408; 3 Cow. 147; 8 Id. 77 ; 8 Johns. 149 ; 15 Id. 247 ; 23 Wend. 345 ; 4 Watts, 452 ; 3 Cranch. 311 ; 2 Oilman, 701-713) ; .where the draft of a third person is received by a EIGHTS OF THE LANDLORD. 49 creditor as conditional payment of a debt due him, his right of action upon the debt is suspended until the draft is properly presented for payment, and payment refused ; by receiving such draft, the creditor accepts the duty of doing everything with respect thereto which is necessary to fix the liability of the parties ; and the onus is upon him to show that he has per- ' formed that duty when he seeks to recover upon the original cause of action (Phoenix Ins. Co. «. Allen, Redfield & Bigelow, Leading Cases upon Bills and Botes, p. 637, and 11 Mich. 501). In the absence of such neglect of duty upon the part of the creditor, the effect of receiving payment of a precedent debt in the notes of a third person afterwards dishonored, was con- sidered by the New York marine court, June term, 1875, in Wehrlin et al. v. Schmutz, et al., reported in the New York Daily Register, July 24, 1875, as follows : McAdam, J.— The determination of this action de- pends upon the effect to be given to the alleged pay- ment of the precedent debt of the defendant in the notes of a third party, afterwards dishonored. The rule deducible from the authorities seems to be, that taking a note from one of several joint debtors, or taking from the debtor the note of a third person for a pre-existing debt, is no payment, unless it be expressly agreed to be taken as payment, and unless the creditor agrees to assume the risk of the maker' s solvency (Tobey n. Barbee, 5 Johns. 68 ; Johnson ■». Weed, 9 Johnson, 310 ; Muldoon ». Whitlock, 1 Cow. 290 ; Van Eps v. Dil- laye, 6 Barb. 244 ; Vail v. Poster, 4 N. Y. 312 ; Noel v. Murray, 13 Id. 167 ; Benedict v. Field, 16 Id. 595 ; Bates V. Rosekrans, 37 Id. 409 ; Roberts v. Fisher, 43 Id. 159 ; Smith v. Appelgate, 1 Daly, 91). In determining the question of payment by note or bill, the distinction between the payment of a precedent debt and one created at the time the note or bill is given must be observed, for the rule applicable to the 50 LAHDLOED AND TBNAITT. one class of cases has no application to the other. For example, if the note is received on a precedent debt, the presumption is that it was not taken as payment, and the onus of establishing that it was agreed to be so taken is upon the debtor (Noel ». Murray, 13 N. Y, 167 ; Gibson v. Tohey, 46 Id. at p. 640) ; while, on the other hand, if the note is received at the time the debt is contracted, the presumption is that it was given in pay- ment (Noel V. Murray, Gibson v. Tohey, supra). The reason for the first presumption is that a person should not easily be presumed to abandon the rights which belong to him, and as a novation implies an aban- donment by the creditor of the first claim, to which the second is substituted, it ought to be expressly stated to be effective {PotMer on Obligations, vol. 1, pp. 385, 386), and the reason for the second seems to be "that taking a note for goods sold is a payment, because it is a part of the original contract ; but paper is no payment where there is a precedent debt, for when such is given in pay- ment, it is always intended to be taken under this con- dition, to be payment if the money be paid thereon " (Chief Justice Holt in Ward v. Evans, 2 Lord Baym. at p. 930). In the present case, the notes of the third party were given for a precedent debt, under circumstances which, on the authorities cited, do not amount in law to a payment. i Another objection urged by the defendants to the plaintiff's right of recovery, is that after the two notes in question were given, a balance of sixty- seven dollars and eighty- fite cents remained due from the defend- ants, and the plaintiffs received this amount, and re- ceipted the defendant's account in full. This circumstance does not establish the plea of payment. In Muldoon et al. v. Whitlock et al. (1 Cowen, 290), the plaintiffs sold stores for a ship to F. & S., the ship's husbands and part owners, on a credit of four months, EIGHTS OF THE LANDLOBD. 61 whicli stores were charged to the owners of the vessel by name. A few days after the sale, the plaintiffs rendered two bills to P. & S., charging them only, and about two months after the sale, took the sole note of F. & S., at an extended credit of eight months, giving a receipt for the note, as in full for the stores. This note not being paid, and F. & S. becoming insolvent, it was held that the other owners were not thereby dis- charged, but were liable in assumpsit for the original consideration. That being originally liable, the sub- sequent delivery of the bills charging the ship's hus- bands alone did not discharge the other owners. That they were not discharged by taking the note, which being for a precedent debt, was not a satisfaction until actually paid ; unless expressly agreed to be received as payment, and that the receipt of the note in full was not evidence of such an agreement, and a recovery against all the owners upon the original cause of action was sustained (see also 3 Bosw. 497 ; 37 N. Y. 312 ; and 48 Id. 204). In Roberts v. Fisher (43 N. Y. 159), the defendant being indebted to the plaintiff for goods sold, gave him the promissory note of a third person, which was re- ceived by him in full payment and discharge of the debt. The maker of the note was insolvent at the time of the transfer of the note, although this fact was un- known to the parties ; and it was held that it was a case of mutual mistake of fact, and that the plaintiff was en- titled to recover from the defendant his original debt. Judge Peqkham, in delivering the opinion of the court in the last case, remarked that "upon broad principles of justice it would seem that a man should not be allowed to pay a debt with worthless paper, though both persons supposed it to be good." Upon the same principle, the court of errors held that " payment in the bills of an insolvent bank is not a satisfaction of a debt, although at the time and place of payment the bills are in full credit, and the parties 52 LANDLOED AND TENANT. to the transaction are wholly ignorant of such insol- vency, if previous to such payment the bank has in fact become insolvent (Ontario Bank v. Lightbody, 13 Wend. 101, and see Thomas v. Todd, 6 Eill, 340). The application of these principles to the facts of the pres- ent case effectually dispose of it. The maker of the two notes given by the defendants to the plaintiffs was insolvent at the time the plaintiffs received them, a fact then unknown to the parties, but publicly announced shortly afterwards. Upon the authorities cited, it is evident that these notes did not operate in law as a payment of the plaintiffs' debt. The plaintiffs are; therefore, entitled to judgment for the amount claimed, with interest. III. Tender of payment. A mere offer to pay is not a tender. The money must be actually produced and paid down, unless the creditor, by some positive act or declaration, dis- penses with this being done (Strong v. Blake, 46 Barb. 227 ; Hornby v. Cramer, 12 How. Pr. 490). An offer to draw a check is not a tender, although declined (Dun- bar V. Jackson, 6 Wend. 32 ; Mclntire v. Clark, 7 Id. 330), and where the debtor had the money in his pocket, and told the creditor that he was ready for him, but the creditor did not know that the debtor had the money with him, this was held to be no tender (Bakeman v. Pooler, 15 Wend. 637), and the tender must in general be made directly to the creditor (Hornby V. Cramer, 12 How. Pr. 490 ; Smith v. Smith, 2 Hill, 351 ; 25 Wend. 405), and a tender to a clerk of a sub- agent of the creditor is insufficient, unless it is shown that such clerk had authority to receive the money (Hargous v. Lahens, 3 Sandf. 213), and the tender must be without any conditions, terms, or qualifications, EIGHTS OF THE LANDLORD. 53 and without any protest against liability for the debt (Wood 0. Hitchcock, 20 Wend. 47) ; where the party making the tender demands a receipt or satisfaction piece aa a condition, the tender is illegal (Roosevelt v. Bulls Head Bank, 45 Barh. 579) ; and tender of money before it is due is ineffectual (Mitchell ». Cook, 29 Barh. 243) ; and an absolute refusal to receive the money, or to do the act in consideration of which the money is to be paid, is a waiver of tender (Murray i}. Roosevelt, Anth. N. P. 138 ; Vaupell «. Woodward, 2 Sandf. Ch. 143 ; Stone v. Sprague, 20 Barh. 509 ; Data v. Fiedler, 1 E. D. S. 463 ; Sliugerland v. Morse, 8 Johns. 474 ; Everett v. Saltus, 15 Wend. 474; Warren B. Mains, 7 Johns. 476) ; and if tender is refused on a specified ground, the creditor can not afterwards raise any other objection which, had he stated it then, might have been obviated (Hull v. Peters, 7 Bari, 331 ; 10 Abb. Pr. iV. -S^. 484 ; 21 iV. Y. 547) ; and a tender hav- ing been refused because not made in time, objection can not afterwards be taken that the tender was not in money (Dufiy v. O' Donovan, 46 If. Y. 223) ; a tender does not extinguish a money debt, but merely stops the interest (Raymond v. Bearnard, 12 Johns. 274 ; Hunter V. Le Oonte, 6 Cow. 728) ; and a tenant can in no case legally demand a receipt as a condition of paying his rent (45 Barb. 579 ; 20 Wend. 47 ; 23 Id. 342 ; 21 iV". Y. 581). Flea of tender. A plea of tender before action should allege the tender and refusal, and that defendant has always Ibeen, and still is, ready to pay (8 Barb. 408; 5 Abb. 358; 23 Sarb. 490; 2 K D. Smith, 197; 2 Denio, 197), and to keep the tender good the amount tendered must be paid into court (2 E. B. Smith, 197 ; 25 How. 464) ; and notice of such payment must be given to the plaintiff's attorney (35 How. 464). The answer should aver that the money has been brought into court (7 Robt. 389 ; 21 N. Y. 843). A defense of tender after action commenced, must state the amount tendered, and should include interest and costs to the time of the tender (8 Row. 358) ; and the amount must be paid into court (45 Barb. 579 ; 3 Hill. 538; Gowen'i Tr. § 1148 to § 1160; 7 Bobt. 389; 36 How. Pr. 26; 5 Abb. Pr. N. 8. 18; 25 How. Pr. 464; 45 Barb. 554; 30 How. Pr. 226) ; a party who makes a tender is bound to keep the same money at all times ready for payment when demanded, and when 54 LANDLORD AKD TENANT. sued is bound to bring it into court (Roosevelt v. Bulls Head Bank, 45 Bari. 579). Effect of tender. Payment of money into court admits the cause or causes of action stated in the complaint, to the amount paid in, but beyond that the de- fendant may make his defense (Cow. Tr. § 1154; T Johns. 315; 2 Wend. 431), and the plaintiff is in any event entitled to the amount tendered or paid in (1 £. Swackhamer, 2 Milt, 4). In Moffatt v. Smith (4 N. Y. ]26), the lessor assigned the lease without the rever- sion, and the lessee paid rent to the assignee, and it was held that this created such a privity of contract between the tenant and the assignee, that the latter might sue in his own name for rent subsequently ac- cruing under the lease. As to rights of grantees gen- erally see Van Rensselaer «. Hays, 19 N. Y. 68 ; Dolph «. White, 12 Id. 296 : Main v. Gfreen, 32 Barb. 448 ; Van Rensselaer n. Smith, 27 Id. 104. EEMED1E8 OF THE LATSTDLOKD. 79 IV. Effect of judgment upon other remedies. A landlord, like any other creditor, is entitled to all the auxiliary and concurrent remedies of the law, appropriate to the full protection and enforcement of his rights, where the same are not in their character inconsistent with each other. Thus, at common law, the right of distress is not extinguished by an un- satisfied judgment for rent (Snyder v. Kunkleman, 3 Penn. 490 ; Chipman v. Martin, 13 Johns. 240 ; Ban- leon V. Smith, 2 Binn. 146 ; Bates v. Nellis, 5 Hill, 651 ; 3 Price, 572 ; 2 A. & E. 623 ; 4 Nev. S M. 462 ; Ewer «. Clifton, Bull. N. P. 182 ; Harris c Shipway, 1744, cited by Byles, 304, note 1). An unsatisfied judgment does not satisfy the debt, nor merge or ex- tinguish other remedies (Drake «. Mitchell, 3 East, 252 ; Chipman ». Martin, supra ; Clapp n. Meserole, 38 Barh. 661 ; Taileton t. AUhusen, 'l A. & E. 32), and in G-ridley o. Rowland (1 E. D. 8. 670), the plain- tiff brought a personal action against a contractor, who pleaded by way of defense, the pendency of other pro- ceedings against the owner to foreclose a lien filed for the same debt, and the court held that the foreclosure proceedings against the owner were no defense to the action against the contractor, and that a party who has a claim against several for the same debt, may bring actions against each at the same time, and that it is only after a satisfaction has been recovered in one, that the same is a defense to the further prosecution of another, and that a proceeding under the lien law of 1851, was a mere foreclosure of a security. Election between inconsistent remedies. Where there exists an election between inconsistent 80 LANDLOBD AND TENANT. remedies, the party is confined to the remedy which he first prefers and adopts (Rodermund v. Clark, 46 JV. Y. 354 ; S. P. Qossv. Mather, Id. 689 ; aflTg 2 Lans. 283), and if a vendor who is entitled to rescind the sale and re-take possession of goods delivered, acually elects to do so, instead of proceeding to collect the price, he disaffirms the sale, and can not afterwards sue for the price. The remedies are not concarrent, and the choice between them once being made, the right to follow the other is forever gone (Morris v. Eexford, 18 If. Y. 552 ; S. P. 1 Abb. Pr. If. S. 432) ; and if a seller of goods, who has been defrauded in the sale, proceeds to judgment against the buyer, upon the contract of sale, after he is apprised of the fraud, his election is determined ; and he can not afterwards follow the goods, or the proceeds thereof, in the hands of a third person (Bank of Beloit V. Beale, 34 If. T. 473), and the failure of the party to secure satisfaction by means of the remedy which he adopted, is no reason for permitting him to resort to the other (Gross ». Mather, 2 Lans. 283 ; afF'd in 46 If. Y. 689). BIGHTS OF THE TENANT. 81 CHAPTEE VIII. RIGHTS OP THE TENANT. I. Eight of possession and damages for withholding. II. Assigning lease and underletting premises. III. Right to remove fixtures. IV. Rights of under-tenant. Right of possession and damages for witTiTiolding. To have and. retain possession of the denjised premises during the term, and to peaceably and quietly enjoy the same without disturbance, is the principal right which a tenant possesses ; but on an ordinary demise of premises, without any special agreement to give possession, the landlord is under no obligation to put the tenant in actual possession ; and it has been held, that where the lease from the landlord gives the tenant the legal right of possession, it is no ground of defense to an action for rent upon a lease, that at the time of making the lease there was a tenant in pos- session of the premises who still remains in possession, and that the defendant in consequence has never had possession. It must be shown that the tenant remain- ing in possession has a right so to do, either from the landlord or under a title paramount (Gardner v. Keteltas, 3 Hill, 330; Mechanics & Traders Ins. Co. i>. Scott, 2 Hilt. 550). But a lease of real property for a term commencing at a future day, with an agreement to give possession, gives to the lessee, when the day arrives, the right of possession ; and an entry is not necessary to enable him to maintain ejectment, if the landlord, or one claiming under him, withholds pos- 11 82 LANDLORD AWD TENAWT. session. But the lessee is not bound to resort to ejectment, under [such an agreement, but may, at his option, bring his action against the landlord for damages for breach of the agreement (Trull v. Granger, 8 jy. T. 115), and it has been held, that a lessee may- abandon his contract, if the lessor refuse to give pos- session on the day fixed (Spencer v. Burton, 5 Blackf. 57) ; and where it appears from the terms of a lease of a store being erected by the lessor, and from the subsequent acts of the parties, that they understood the property rented was to be a finished store, fit for immediate occupancy for the purposes for which it was leased, a covenant in the lease, on the part of the lessor, will be implied, that the store shall be finished and fit for use as a store, by the time stipulated for the commencement of the term, and in such a case, to entitle the lessor to recover the rent, it is incumbent on him to show that he has performed on his part. If the lessees have taken possession, so that they became vested with the term, a breach of the agreement, on the part of the lessor, will constitute no defense to an action to recover the rent reserved. They can only recoup the damages actually sustained (La Farge v. Mansfield, 31 Barh. 345 ; The People v. Kelsey, 38 Id. 269). Damages for wrongfully withholding possession. In an action by lessee against lessor, to recover damages for failure and inability to give possession, the rule of damages is the difference between the yearly value of the premises and the rent reserved (Dean ». Keosler, 1 Kilt. 420 ; Trull «. Granger, 8 N. Y. 116), and for a breach of an agreement to give a lease, expenses incurred in preparing to remove to and occupy the pre- mises, together with the difference between the real value of the lease and the contract price may be recov- ered (Driggs ■». D wight, 17 Wend. 71 ; Giles v. 0' Toole, 4 Barh. 261; Lawrence ». Wardwell, Q Id. RIGHTS OF THE TENANT. 83 423) ; but the lessee can recover nothing for profits which he might have made if he had obtained posses- sion (Giles V. O' Toole, 4 Barb. 261), nor for the loss he suffered by being obliged to crowd his goods into a small space while looking for another store, nor the ex- pense or injury of packing them, such packing not being done with a view to removal into the defendant's store. Nor can he recover interest on the value of his stock during the period of finding a store (Lowenstein «. Chappell, 30 Barb. 241), and if the lease be of an opera house, to be finished by a certain time, the damages may include the tenant's expense of advertising the per- formance, but not the loss of anticipated profits (Acad- emy of Music V. Hackett, 2 Hilt. 217) ; and in an action by a lessee for damages for refusing to give possession of the premises, it is no defense that the defendant hired the premises, intending to keep a bawdy house therein, and the mere avowal by the lessee of an intent to employ the leased premises in an unlawful business does not constitute an offense, nor does it entitle the lessor to repudiate his contract (O'Brien v. Brieten- back, 1 Hilt. 304 ; but see the cases cited at page 36, ante). Damages to eyicted tenant. A tenant in possession, evicted before the expiration of his lease, may recover the diflference between the value of' his lease for the un- expired term, and the stipulated rent. If evicted at a season when the expense of removing is greater than it would have been at the end of the term, he may recover such extra expense, but he can not re- cover any increased rent he may be compelled to pay for other premises, without reference to the equality of their accommodation (Chatterton «. Fox, 5 Duer, 64; and see 1 Id. 343, and 34 Sarh. 178). 11. Assigning lease and underletting. A tenant, unless restrained by express agreement, may without the consent of his lessor assign the lease 84 LANBLOBD AND TENANT. itself, or he may grant underleases for any number of years less that the term for which he holds the premises. The effect of a covenant not to assign or underlet was considered at page 71 {ante), and the legal status of the under-tenant will be found stated in a subse- quent portion of this chapter (page 88, post). Upon an assignment by a lessee, and entry into pos- session by the assignee, though the latter becomes lia- ble to the landlord for the rent, the original lessee re- mains liable as theretofore upon the covenants in the lease ; payment by the assignee does not amount to a surrender by the lessee (Damb v. Hoffman, 3 £!. D. 8. 361 ; 8. p. Port v. Jackson, 17 Johns. 239, aff'd Id. 479). Under a lease with a covenant that the lessee shall not assign without the lessor's consent, the lessee's assigning part of the premises with consent is not a severance of the original lease, but the lessee still remains liable for every act of his assignee, amounting to a breach of the covenant contained in the lease (Jackson «. Brownson, 7 Johns. 227), and an assign- ment of a lease upon the lessors consent, where the lease requires such consent, does not discharge the lessee from liability on his covenant to pay rent (House «. Burr, 24 Barh. 525) ; and a general release of the lessee after an assignment does not discharge the assig- nee's liability for use and occupation (McKeon v. Whitney, 3 Den. 452). Who are assignees, I A lessee of whole unexpired term with covenant to pay rent to his immediate lessors, and a right of re-entry on their part, is deemed an under-tenant and not an assignee (Martin v. O'Conner, 43 Barb. 514j. To render the assignee of a lease liable for rent to the lessor, the whole term of the lease must have been assigned. An assignment reserving the last day of the term does not render the assignee liable to the lessor (Davis v. Morris, 36 N. T. 569, afi'g 35 Barb. 237). Third persons entering upon leased premises under an arrangement with the original tenant not fully disclosed, held, properly deemed assignees of the term, and not mere under-tenants; and therefore liable directly to the owner in an action for rent (Bedford v. Terhune, 30 N. T. 458, aflE'g 1 Dal^i, 371 ; 27 How. Pr. 433). EIGHTS OF THE TEKAKT. 85 And where an administrator enters and takes the rents and profits of the demised premises he is person- ally liable as assignee of the term for all rents falling due after his entry (In tlie matter of Galloway, 21 Wend. 32 ; Fisher v. Fisher, 1 Bradf. 337 ; Rubery v. Stevens, 4 Barn <£ Adol. 241 ; Buckley -y. Perk, 1 SalJc. 317 ; Hargraves, case, 5 Cooke JR. 31 ; Weniworth on Executors, 285). And an assignee for the benefit of creditors, if he enter into possession of the demised premises, is liable during occupancy (Morton v. Pinck- ney, 8 Bosw. 135 ; Jermain v. Patterson, 46 Barh. 9), but not after surrender (Young v. Peyser, 3 Bosw. 308) ; nor if he -refuse to accept the lease (Bagley v. Freeman, 1 Hilt. 196 ; Lewis v. Burr, 8 Bosw. 140 ; Journeay v. Brackley, 1 Hilt. 447.) LiaMlilj of assignee. An assignee of the term is always liable to the les- sor for rent reserved, in the same manner and to the same extent that the lessee was, and the assignor also remains liable upon all his covenants to the lessor (Dolph V. White, 12 N. T. 296 ; 3 B. D. Smith, 361 ; 17 Johns. 239 ; Id. 479), and is liable on all covenants that run with the land as covenants to repair and pay rent although not expressly named therein (Jacques v. Short, 20 Barb. 269), and when a covenant to pay rent becomes broken after an acceptance of an assignment, and during actual possession, the assignee is liable for • the whole rent then becoming due (Holsman v. De Gray, 6 Abb. Pr. 79). Discharge of assignee by furtlier assignment. An assignee is only bound by the covenants in the lease, so long as he retains possession, by himself or his tenants, and may relieve himself from liability for subsequent breaches by getting out of possession and assigning over (Armstrong v. Wheeler, 9 Cow. 88 ; Childs V. Clark, 3 Barb. Ch. 62 ; Astor v. L'Amoreux, 86 LAWDLOED AND TEWANT. 4 Sandf. 524 ; Carter w. Hammett, 18 Barb. 608), for the assignment destroys the privity of estate, which was the only ground upon which the assignee was liable {Taylor's L. & T. §§ 452, 680). The possession of the sub-tenant is the possession of the tenant and the assignee (Carter v. Hammett, 18 Barb. 608, and see 24 Id. 525 ; Harding t). Crethorn, 1 Esp. 57), and they must get him out (Taylofs L.&T.% 524). Sale of leasehold estate. A person agreeing to buy a specific lease, is (in the ab- sence of misrepresentation on the part of the seller), as a rale, chargeable with notice of all the covenants and re- strictions it contains (Pope v. Garland, 4 Y .&Q. 397; Spunner ». Walsh, 10 Ir. Eq. 400), for a man who wishes to protect himself against unusual or particular covenants, should before purchasing inquire into the covenants and stipulations of the original lease, so as to know precisely the terms on which the property is held (Pope ?). Garland, 4 J". public policy, a tenant is never allowed to dispxate his landlord's title after having accepted possession under him. This rale is elemen- tary. The estoppel extends equally to both landlord and tenant, so that where the tenant is estopped from deny- ing the landlord's title, the landlord can not allege that he had no title at the time of the demise. It is competent, however, for the tenant to show that the title of the landlord, under whom he entered, has terminated either by its original limitation, or by conveyance, or by judgment and operation of law ; and this the tenant may show, although he does not claim under that title, and though the title be outstand- ing in the trustee of the lessor (Hoag i). Hoag, 35 N. T. 469). And a tenant who acquires his landlord's title, by a purchase under a judgment subsequent to the demise, may sfet it up against him (JSTellis «. La- throp, 22 Wend. 121). And if the lessor's interest is sold, and the lessee attorns to the purchaser, who acquires the title, the lessee may set up the divesting 13 98 LANDLOED AKD TENAKT. of the title to defeat the lessor's action for rent accruing thereafter (Evertson v. Sawyer, 2 Wend. 507 ; and see also Lawrence v. Miller, 1 Sandf. 616; Jackson v. Eowland, 6 Wend. 666). II. Certain attornments -void. Attornment, in feudal or old English law, means a turning over, or transfer by a lord, of the services of his tenant to the grantee of his seignory. A transfer by the tenant of his services to the grantee, or new lord ; a ten- ant' s consent to a transfer of lands by his lord ; or his acknowledgment or acceptance of the grantee as his lord, in place of the former lord. A tenant is said to attorn, where he agrees to become the tenant of the person to whom the reversion has been granted. The attornment of the tenant is unnecessary, however, to the validity of a conveyance by his landlord, and in that respect attornments may be considered as abolished (4 Kent's Com. 490, 491). The term, however, continues to be applied to the acts of tenants, in somewhat of its ancient signification. The statute in regard to attornments provides that "the attornment of a tenant to a stranger shall be absolutely void, and shall not in any wise aflfect the possession of his landlord, unless it be made, " 1. With the consent of the landlord ; or, "3. Pursuant to, or in consequence of, a* judgment at law, or the order or decree of a court of equity ; or, "3. To a mortgagee after the mortgage has become forfeited" (1 Edm. R. 8. 695, § 3). The object of the statute is to prevent attornment to strangers or other persons against the will or without any grant from or consent of the landlord. Certain attornments are, however, recognized and allowed by the statute ; thus an attornment to a mort- gagee after default is valid (13 Johns. 587 ; 20 Id. 51 ; 3 RIGHTS AND DISABILITIES. 99 Wend. 208 ; 3 Ben. 2] 4 ; but see 2 Wend. 507) ; but an attornment to one having no color of title is void (Jackson v. Delancy, 13 Johns. 537; Jacksan v. Sears, 10 Id. 435), and taking a lease from an adverse claim- ant of title is a fraudulent attornment by the tenant and void (Jackson v. Harper, 5 We7id. 246) ; and persons entering into possession by the consent, assent or con- nivance of the tenant becomes tenant (Bensen v. Bolles, 8 Wend. 125 ; Jackson ». Miller, 6 Id. 228 ; Graves «. Porter, 11 Bari. 592 ; Jackson v. Davis, 5 Cow. 123). The tenant paying his rent to his landlord, can not be prejudiced by any change of title, made by him v?ithout notice. The statute has substituted for an attornment, i. e. the acknowledgment by the tenant of the new lord, the necessity of giving notice to the tenant before he can be sued by an assignee, for rent accruing after the assignment {Taylor'' s L. & T.,% 442). III. ,. Certain provisions affecting tenant's possession. ' The statute provides, that "every tenant to whom a declaration in ejectment, or any other process, pro- ceeding or notice of any proceeding, to recover the land occupied by him, or the possession thereof shall be served, shall forthwith give notice thereof to his land- lord, under the penalty of forfeiting the value of three years' rent of the premises so occupied by him, which may be sued for and recovered by the landlord or per- son of whom such tenant holds" (1 Bdm. R. 8. p. 699, § 27), and further provides that " whenever the relation of landlord and tenant shall have existed between any persons, the possession of the tenant shall be deemed the possession of the landlord, until the expiration of twenty years from the termination of the tenancy ; or, where there has been no written lease, until the expir- ation of twenty years from the time of the last payment 100 LANDLOED AND TEW ANT. of rent ; nothwithstanding that such tenant may have acquired another title, or may have claimed to hold ad- vesely to his landlord. But snch presumptions shall not be made after the periods herein limited" {Code, § 86), and the statute relating to highway assessments and deductions therefor, provides that, " § 30. Whenever the commissioners of highways shall assess the occupant, for any land not owned by such occupant, they shall distinguish in their assess- ment lists, the amount charged upon such land, from the personal tax, if any, of the occupant thereof. But when any such land shall be assessed in the name of the occupant, the owner thereof shall not be assessed during the same year to work on the highways on ac- count of the same land. " § 31. Whenever any tenant of any land for a less term than twenty-five years, shall be assessed to work on the highways, for such land, pursuant to the last preceding section, and shall actually perform such work, or commute therefor, he shall be entitled to a reduction from the rent due, or to become due from him, for such land, equal to the full amount of such assessment, estimating the same at the rate of sixty-two and a half cents per day ; unless otherwise provided for by covenant or agreement, between such tenant and his landlord!" (1 Edm. R. S. p. 467). IV. Leases to infants, married women, partners and cor- porations. Although a demise to an infant may be voidable, it has been settled by authority that an infant who fails to pay his rent, and perform the conditions of the demise, may be removed from the premises by ejectment on the ground of a wrongful possession (McOoon v. Smith, 3 Hill, 147). When a married woman leases lands, whether for money paid from her separate estate or EIGHTS AND DISABILITIES. 101 upon credit, to the extent of her interest therein, the lands become her separate estate, and she can let them or enter into any contract in reference to them the same as if she were a feme sole (Prevot v. Lawrence, 51 iV. T. 219), and to the extent and in the matters in which married women are by law permitted to engage, they owe the same duty to those with wliom they deal, and may be bound in the same manner as if unmarried (Bodine v. Killeen, 53 JV. T. 93 ; Frecking t. Holland, Id. 432) ; and where they clothe others with an appar- ent authority to act for and bind them, the apparent must be taken for the real authority (Bodine t). Killeen, su%>ra.) Partners. Where a lease for a term of years, made hj one of two partners to the firm, for the purposes of the business, is subject to the continuance of the business, and upon a dissolution by the death of either partner, the lease terminates (Johnson v. Hartshorne, 52 iV. Y. 173) ; and where a lease to a partnership gives a privi- lege to the lessors of continuing the lease for an addi- tional term upon giving notice of their intention to con- tinue prior to the termination of the original term, in case of the death of one of the partners, the survivor can as such give the required notice, and enforce a ful- fillment of the covenants of the lease for the extended term (Betts «. June, 51 N. Y. 274) ; and where, during the existence of a continuing partnership of undeter- mined duration, three or four co-partners, without the knowledge of the other, obtain a new lease in their own name of premises leased and used by the firm, the same becomes partnership property, and upon dissolution the other partner is entitled to his proportion of its value (Struthers v. Pearce, 51 JV. Y. 357) ; and if there be a specialty as a lease to the partners by name, the retirement, or dissolution, or settlement, will in no way exonerate the retiring partner or any one who is lessee ; 102 LANDLORD AND TENANT. nor will anything else which would not operate his dis- charge if there were no partnership between the lessees. In such a case, notice to the lessor of his retirement would not discharge bim, nor would receiving rent by the lessor, from the remaining partners {Parsons ^on Part. 417) ; and where the bargain between the partners is, that the new comer shall be a partner as of a preced- ing day, here it is held that he is not bound to the cred- itor, nor a party to the agreement for a debt contracted between that previous day and the actual making of the contract, although he is bound to the partners for his share of the debt, if they pay it (Saltoun v. Houston, 1 Bing. 433 ; but see Schindler v. Euell, 45 How. Pr. 33}. Corporations. A corporation authorized to dispose of its property may in general dispose of any interest in the same it may deem expedient, having the same power in this respect as an individual (Reynolds «. Stark County, 5 OMo., 205), land it may lease its lands (Featherston- haugli v. Lee M. P. Co., L. B. 1 :Eg[. 318), and the technical mode of executing a specialty of a corpora- tion is to conclude the instrument, which should be signed by some officer or agent in the name of the cor- poration, with, "In testimony whereof, the common seal of said corporation is hereunto affixed;" and then to affix the seal (Flint v. Clinton Co., 12 N. M. 433), and to bind a corporation by specialty, it is necessary that its corporate seal should be affixed to the instrument {Ang. & Ames on Corp., § 215). The corporate seal is the only organ by which a body politic can oblige itself by deed; and though Us agents affix their private seals to a contract binding upon it yet these not being seals as regards thie corporation, it is in such case bound only by simple contract {Id. § 295), and where a corporation has actually used and occupied land for the purpose of its incorporation EEMEDIES OF THE TENANT. 103 by the permission of the owner, it seems that it is liable to be sued in assumpsit for use and occupation, notwithstanding it has not entered into a contract under its common seal (Lowe ■». London R. R. Co., 14 Bng. L. B. Eq. 19), and it may be laid down as a rule that the right to engage premises necessary for the carrying on of its business, is a power inherent in every corporation, without which the objects of the corpora- tion could not be accomplished nor its business success- fully carried on, and that this power may be exercised by the managing officers or agents of the corporation, as corporations of necessity act only through officers and agents. Whenever a power is given, everything necessary to a complete execution of it is necessarily implied and goes with it. 104 LAITBLOEB AND TENANT. CHAPTER XL OP THE OBLIGATION TO KEPAIE. The landlord sometimes covenants that he will repair the premises. But, unless he bind himself by such express covenant, he is under no obligation to do so. The law imposes an obligation on the lessee to treat the premises demised in such manner that no in- jury be done to the inheritance, but that the estate may revert to the lessor undeteriorated by the wilful or negligent conduct of the lessee. He is, therefore, bound to keep the soil in a proper state of cultivation ; to preserve the timber ; and to support and repair the buildings. These duties fall upon him without any express covenant upon his part ; and a breach of them will, in general, render him liable to an action for waste {Corny n's L. & T.,2 ed., p. 188). The obligation of a landlord to repair demised premises rests solely upon express contract, and a covenant to repair will not be implied, nor will an express covenant be enlarged by construction (Witty «, Mathers, 52 N. T. 512). In Eagle «. Swayze (2 Daly, 140), it was held that a tenant from year to year, renting part of a dwelling- house, the residue of which is occupied by other ten- ants, is under no obligation to make repairs of so general, substantial, and lasting a nature, as the re- building of a chimney which has fallen down (see also Johnson v. Dixon, 1 Daly, 178). A tenant can not, without special agreement, make repairs at the expense of his landlord (Munford tj. Brown, 6 Oow. 4!7o ; McOarty V. Ely, 4 ^. D. S. 375) ; but the tenant, may, when his landlord is bound to repair, and repairs are needed, make the repairs himself, after due notice to the land- lord, and waiting a reasonable time, and may recover the expense thereof from the landlord ; or he may, at his OF THE OBLI&ATIOW TO BEPAIE. 105 own option, leave the premises unrepaired, and recover from the landlord the damage sustained by him (Myers V. Burns, 35 N. Y. 269 ; aflf'g 33 Barb. 401 ; Cook v. Soule, 56 N. Y. 420). In the case last cited the court held that where the lease is for a year, the fact that the lessee has paid the rent except for the last quarter does not deprive him of the right to counter-claim his dama- ges for the entire year, and if in excess of the rent, he is entitled to a verdict for the excess, and that tlie lessee's measure of damage is the difference in value of the use of the premises as they are and as the lessor agreed to put them ; a promise by a landlord to repair, made after the delivery and acceptance of the lease, re- quires a new consideration to render it binding (Walker ». Gilbert, 2 BoM. 214 ; Doupe w. Genin, 37 How. Pr. 5 ; aff'd in 45 N. Y 119 ; Flynn v. Hatton, 43 How. 333 ; and see 1 H. D. 8. 253 ; 2 Id. 248) ; and where a lease is in writing, parol evidence can not be given that the landlord at the time of executing it, promised to re- pair (Cleves w. Willoughby, 7 Hill, 83; All. Dig. vol. 2, p. 661) ; and a landlord is under no obli- gation to the tenant to protect his premises from adjoining excavations (Sherwood «. Leaman, 2 Boaw. 127; Howard v. Doolittle, 8 Duer. 4:64:-, White v. Mealio, 37 JV. Y SupW Ct. 72) ; and in the contract of letting there is no implied warranty that the premises are tenantable (Mayer v. Moller, 1 Hilt. 491 ; 7 Hill, 86; 2 M B. S. 248 ; 1 Daly, 481) ; for the maxim of caveat emptor applies, that if a building is injured by lire, the landlord can not be compelled to re-build or repair it for the benefit of his tenants, unless he has expressly covenanted to do so, applies as well to a case where a tenant has hired a part of the building, e.g., a basement-room, and the injury by the fire is confined to the roof. The landlord is not liable for injuries con- sequent upon his delay to repair the part destroyed (Doupe V. G-enin, 45 N. Y. 119). For liability for injuries to third persons, vide that title. 14 106 LANDLORD AND TllNAlSfT. Under coTenaut to repair. Under a covenant to "keep" in repair, if to keep in repair, it is necessary that the rooms should first be put in repair, the covenantor is bound to perform that duty (Myers v. Briggs, 35 iV. Y. at pp. 271, 272 ; Ward «. Kelsey, 38 Id. 80 ; Payne v. Haiue, 16 M. &W. 541). And where the agreement stated was, to leave the premises in the same state in which they were at the commencement of the tenancy, and the written agree- ment given in evidence, was to leave them in the state they then were, — the premises being then in the posses- sion of another tenant, and the defendant's tenancy was not to commence for a month afterwards, yet the court held it to be sufiicient (White v. Mcholson, 4 Man. & Or. 95). Where there was an agreement between the plaintiff and the defendant, the plaintiff to let, and the defendant to take a house for three years, from Decem- ber 25, 1839, at the yearly rent of thirty pounds, paya- ble quarterly, and the defendant (amongst other things), thereby, agreed to keep the premises in as good repair and condition as the same then were, and to leave them so on the determination of the tenancy, fair wear and tear excepted ; the tenant, however, quitted the premises in September 29, 1841 ; — in an ac- tion of assumpsit upon the agreement for two quarters rent due March 25, 1842, the defendant pleaded that the house by reason of the badness of the materials with which it was built, &c., and by and through the neglect and default of , the plaintiff, and not for want of any such repair as the defendant was bound to do un- der the agreement, became so runious, unsafe and un- fit for habitation, that he was obliged to quit it before the rent in question began to accrue ; this was traversed by the replication, which also alleged that the premises became in the state mentioned in the plea, for want of the repairs the defendant was bound to do by the agree- OV THE OBLIGATION TO EEPAIR. 107 ment, and by and through the default of the defendant. At the trial the defendant proved that by reason of the house being built in a marsh, and upon a bad founda- tion, the walls had sunk, and there were large gaps in them, so that they were obliged to be shored up, and the basement was so full of water, that pumping for several hours a day became necessary, and even then it was so wet, as to be utterly unfit for habitation ; the jury having given a verdict for the defendant, the court upon application granted a new trial ; they held that the plea and the proof of it, were no reasons why the tenant should not pay the rent during the term ; he might have examined the house before he took it ; and his not having done so, or not having done so effectu- ally, was his own fault ; and as to the landlord, he was under no agreement, express or implied, to make any repairs, nor had he expressly or impliedly warranted the house to stand during the term (Arden v. Pullen, 10 Mees. & W. 321). So, where a wharf was leased, and before entry of the tenant, a large portion of it was destroyed by nat- ural decay, of which the lessee gave notice to the land- lord, requesting him to repair ; but he neglected to do it, and the lessee then refused to enter or pay rent ; held, that he was still liable for the rent (Hill v. Wood- man, 2 Shep. (14 Maine) 38 ; Cleves v. Willoughby, 7 Bill, 83) ; and where there is no stipulation upon the subject, a person who agrees to take a house must take it as it stands, and can not compel! the lessor to put it into a condition fit for habitation (Ohappell v. Grreg- ory, 34 Beav. 250). The extent of the repairs, however, are to be meas- ured by the age and class of the buildings ; and a ten- ant who enters upon an old house is not bound to leave it in the same state as if it were a new one. The ex- pression "good repair" is to be received with like qualification (Hart v. Winsdor, 12 M. c& W. 77 ; Mautz V. Goring, 4 Bing. N. O. 451 ; 33 M O. L. R. 409 : 108 LANDLORD AND TENANT. Payne v. Haine, 16 M. & W. 541 ; Bardettw. Withers, 1 A. & E. 136). la an action for rent, the defendant may, under a covenant of the landlord to keep the premises in repair, set np, as a counterclaim, an amount expended by him in the necessary repair of the premises, and also damages sustained by the loss of the use of certain parts of the premises rendered untenantable for want of repair, and in such an action the defendant may recover for his expenses in repairs, even when they exceeded what it would have cost the landlord, had he employed his own mechanics. In the leasing of premises for a first class hotel, a covenant to keep the same in repair is broken by per- mitting the flues to remain in such condition that the rooms can not be used with a fire, owing to the issuing of smoke from the grate in the room, whenever a fire is lighted therein (Myers v. Bowers, 35 N. Y. 269). The breaking of a door-waj^ through the wall of a demised house into an adjoining house, and keeping it open for a long space of time, amounts to a breach of covenant to repair) Doe d. Vickery v. Jackson, 2 StarTc. 293 ; and see 2 F.&F. Ill, 115 ; 6 C. c& P. 195). A tenant to keep in repair the premises, and all erections, buildings, and improvements erected on the same during the term, and to yield up the same at the end of the term, can not remove a veranda erected by himself, which is aflflxed to the ground by means of posts (Penry v. Brown, 2 Btarlc. N. P". 0. 408), and a tenant covenanting to repair is liable to a penalty in- curred by want of them (Mayor v. Corliers, 2 Sandf. 301). Under a covenant to substantially repair, uphold, and maintain a house, the tenant is not bound to keep up the inside painting (Mark v. Noyes, 1 C. & P. 265), nor is a tenant under covenant to repair liable for the extra expense of laying a new floor on an improved plan (Soward v. Leggatt, 7 O. <& P. 613), and the term habitable repair means a state of repair reasonably fit OF THE OBLIGATION TO BEPAIR. 109 for the occupation of an inhabitant (Belcher v. Mcin- tosh, 8 0. & P. 720). Kiglit of action for breach. Under the tenant's covenant to keep the premises in repair, and lease the same in such condition, the land- lord need not wait till the expiration of the term, be- fore suing for suffering to get out of repair (Webster v. Nosser, 2 Daly, 186 ; Schiefflin v. Carpenter, 15 Wend. 400, and cases cited). Extent of landlord's liability. It has been held in the Common Pleas, that the measure of damages, in an action against a landlord for not repairing, is the amount it would cost to make such repairs, and for the reason that the tenant can not, by exposing himself, his family, or his goods to the inju- ries or damage which result from the landlord's negli- gence, present a meritorious claim, when he could rem- edy the evil by repairs for which he would be fully in- demnified (Walker V. Swayzee, dAbb. Pr. 138) ; when a building is unfit for the use contemplated, if the tenant has a remedy for such unfitness, he must seek it either by charging the landlord with the expense of remedy- ing the defects, or by refusing to use the premises, and thereby exonerate himself from liability under the con- tract of hiring. But a tenant has no right to use de- mised premises, which he knows to be unfit for occupa- tion, in such a way as to cause damage and loss, and then seek to recover from his landlord for the damages so occasioned by his own acts. This was held by the N. Y. Common Pleas some years since, in Mchol v. Dusenbury, where the tenant, knowing that the roof of a house he had hired was unfinished, and per- mitted the rain to come through, instead of repairing the roof, placed his goods in the store, which were there damaged by the rain — the court held that under these circumstances the tenant could not recover. The 110 LANtoLOED AND TENANT. rule is the same whether the damage is produced by water on goods or by exposure to cold, either in property or person (Academy of Music v. Hackett, 2 lliU. at p. 223, citing the above). A lessee know- ing that his property if left upon premises will be exposed to injuries from storms, or otherwise en- dangered by a failure of the lessor to repair, has no right to take the hazard ; and if he does, and his property is injured, he can not recover of his lessor therefor (Cook v. Soule, 56 iV. T. 420) ; and a simple cov- nant to repair in no way contemplates any destruction of life or casualties to the person or property of any one, which may accidentally result from an omission to fulfill the agreement in any respect (Flynn v.Hatton, 43 How. 833). If premises are in good repair when demised, but afterward became ruinous and dangerous, the land- lord is not responsible therefor either to the occupant or the public during the continuance of the lease, unless he has expressly agreed to repair or has renewed the lease after the need of repair has shown itself ; and this rule applies to a lessee out of possession who has sublet to another who is in possession (Clancy v. Byrne, 56 N. T. 129), and the lessor of buildings, in the absence of fraud or any agreement to that effect, is not liable to the les- see or others lawfully upon the premises, for their condition, or that they are tenantable,and may be safely and conveniently used for the purposes for which they are apparently intended (Jaffe v. Harteau, 56 N. Y. 398). (See chapter upon Liability for Injuries to Third Persons, post.) COVENANTS KUNNING WITH THE LAND. Ill CHAPTER XII. COVENANTS KTJNNING WITH THE LAND. A covenant is said to run with the land, when either the liability to perform it, or the right to take advan- tage of it, passes to the assignee of the land. A cove- nant is said to run with the reversion, when either the liability to perform it, or the right to take advantage of it, passes to the assignee of the reversion. Questions upon this branch of the law, generally arise between the lessor of lands or his assignee upon the one side, and the lessee thereof or his assignee upon the other. The leading case upon the subject (Spencer's) will be found discussed in SmiWs Leading Cases (vqI. 1, marg. p. 23), where all the authorities upon the sub- ject are collated ; and further reference will be made only to a few of the general principles which charac- terize the rule, in its application to particular cases. The rule applies to all contracts of lease or demise, except where the common law has been changed by statute. The assignee of the lessee is in privity of es- tate with the owner of the reversion, and is said to be liable by reason of that privity. He is not liable by the same rule which binds him to fulfill his own agree- ments, because he is not in privity of contract, for he was not a party to the making of the contract, and his liability attaches, therefore, upon another ground: e. g., his privity of estate. The lessee continues liable upon the express cove- nants in the lease by virtue of the privity of contract, notwithstanding any assignment he may make, and notwithstanding the assignee's liability; by reason of 113 LANDLORD AND TENANT. the privity of estate, the lessee's liability, in respect to covenants which run with the land, rests both upon the privity of contract and of estate ; of the first he can not divest himself by assignment. Covenant for rent, therefore, may always be maintained against the lessee or his representatives, although he may have as- signed his term, and although the lessor or his grantee may have accepted rent of the assignee (Walton v. Cronly, 14 Wend. 64 ; Auriol «. Mills, iTH.dS; Post V. Jackson, 17 Johns, 239, a.ff'd Id. 479 ; Damb v. Hoffman, 3 £J. D. S. 361 ; House v. Burr, 24 Barh. 525). Sugden, in his work on Vendors (note to marg. p. 582 : 8th Am. Ed.),explains the phrase "privity of estate and of contract " as follows : ' ' There are three manner of privities, viz.: 1. Privity in case of estate only ; 2. Priv- ity in respect of contract only ; 3. Privity in respect of estate and contract together. The first, viz.. Privity ot estate only, as between the grantee of the lessor's rever- sion and the lessee, or between the lessor and the as- signee of the lessee, for no contract was made between them. The second, viz.. Privity in respect of contract only, which is personal privity, and extends only to the person of the lessor and the person of the lessee, as be- tween the lessor and the lessee, after the latter has as- signed over, for the privity of contract remains, although the privity of estate is destroyed ; and yet this is be- tween the lessor and lessee only, for in the very case, viz., an assignment by the lessee, there is no privity of contract between the lessor and the assignee, but there is a privity of estate between them. The third, viz.. Privity in respect of contract and estate together, as between the lessor and the lessee himself." It is said, however, that there are only two kinds of privity, namely, privity of contract and privity of estate. That the third privity is constituted by the join- ing of both between the same parties. Privity of con- tract is not assignable, but remains between the lessor COVEKATS'TS BlTTTNIIfG- -WITH.THB LAIfD. Il5 and fhe lessee, after the privity of estate is transferred, to exist between otiier parties. In stating that the priv- ity of contract remains, it is meant only that the lessee would remain liable upon his personal covenant after be had assigned the estate. There is no doubt but that the rule of law which makes covenants run with the land as a burden, applies to all leases of lands, except^ where the statute has pro- vided against such application. So far there seems to be a uniform concurrence of all the authorities. It should, liowever, be borne in mind that the covenant in such case binds only the assignee, and does not reach parsons in possession as under-tenants, or those who have acquired an interest in any way except by assign- ment. The under-le^jsee or under-tenant holds under another contract, and is not, therefore, in privity of es- tate under the first lease. It has been a doctrine settled ever since the decision of Halford v. Hatch (1 Douglass 183,) that a landlord can not maintain an action of cov- enant for rent against an under-tenant. Upon the same prin;;iple it was held in Qaackenboss. a. Clarl\G(ia Wend., 555), that the defendant was not liable upon a lease for years because no assignment had been made to him, although he was in possession and had purchased tiic rights of the lessee, had received from him the lease, and had declared himself owner of the premises. The court remarked, that " as the liabil- ity of the assignee rests upon his estate, it is clear that when it is shown that no estate is vestedin the defend- ant, it follows that he is not liable as assignee." The following covenants maybe said to run with the land, viz.: the covenant against nuisances, to pay rent, to pay taxes and asesEments, to repair, and in short any covenant which extends to a thing in esse, parcel of tlie demise and thing to be done by force of the covenant is annexed to and appurtenant to the thing demised, and goes with the land, and binds the assignee, although not named ; but when the covenant extends to a thing which 15 114 LAHDLOHD AlfD TBHANT. is not in being at the time the demise is made, it can not be appurtenant or annexed to the thing wljich hatb no being. In Cole v. Hnghes (i54 iV. Y. 444), the Court of Appeals held that the benefit of a covenant will pass with the land to which it is incident, but that the bur- den or liability is confined to the original covenantor, tinlessa privity of estate between him and the covenan- tee exists, or is created at the time the covenant is made, and that where an owner of land builds a party wall under an agreement with the adjoining owner that when the latter shall use it, he will pay the expense of his portion of the wall, that the right to compensation is personal to the builder, and does not pass by a grant of his land, and that the agreement does not run with the land of the adjoining owner so as to bind his subse- quent grantees, and that this is so, although the adjoin- ing owner, by the terms of his agreement, assumes to bind his grantees, and although one purchases of him with notice of the agreement. The Commission of Ap- peals in Brown v. McKee (57 iV. T. £84), hold that the criterion for determining whether a covenant runs with the land is the intention of the parlies, pro- vided tlie covenant be of such a nature that it can, tinder any circumstances, bind the land in respect to grantees, and that where covenants are of a nature that they can run with the land, they bind, not only the orig- inal parties, but. the subsequent owners of the respective premises, and that as affecting assignees, there is no dis- tinction between the benefit and the burden of a cove- nant ; and that both will pass alike as an incident to an estate in lands, and both will run with an incorporeal, as well ?is with a corporeal hereditament. StEBENDEE. 115 CHAPTER XIII. SURBENDEE. A surrender is defined to be a yielding up of an es- tate for life or years to him wLo hatti the immediate re- version or remainder, wherein tlie particular estate may merge or drown by mutual agreement between fhem {OomyrCs L. & T., 2d ed., 336) ; a surrender is either in fact, by express words, clearly manifesting the inten- tion of the lessee to yield up liis interest, or by act and operation of law, when the parties without any express surrender do some act which implies that they have both agreed to consider the surrender as made (7^,), By statute it is enacted that "No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be cre- ated, granted, assigned, surrendered or declared, un- less by act or operation of law, or by deed or convey- ance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto anthprized by writing" {2Edm. B. S., 139, § 6). This statute has been held to relate only to jthe es- tate intended to be surrendered, and not to the terms of the instrument by which it is created, and that an unexpired term of one year in a lease originally for three years may be surrendered by parol (Smith v. Devlin, 23 JV. Y. 363). The surrender of a lease, though with an agreement that the lessee should remain liable for the rent, and that the landlord might take all lawful measures for its collection, terminates the relation of landlord and lie LAtJDLOED AND TENANT. tenant (Bain v. Clark, 10 Johns. 424; Shepard v. Mer- rill, 2 Johns. Cli. 27(1) ; the surrender of tlie remainder of tile term does not discharge liie lessee from tlie paj'- ment of the rent already due (Sperry v. Miller, 8 iV. Y. 3C6; Curtis V. Miller, 17 Bari.^'ll), though payable in advance (L3arned v. Byder, 61 Barh. 552 ; S. C, 5 Lans. 539). Neither can a landlord, where rent is ex- pressly reserved, payable at stated periods, recover a proportionable pait of the rent for the occupation of his premises for any time short of such periods. There- fore, where A. demised to B the first and second floors of a house for a year, at a rent payable quarterly ; and during a current quarter some dispute arising between "the parties, B told A that she would quit immediately ; and A answered, she might go when she phased, and B quitted, and A accepted possession of the apart- ments, it was held, that A could neither recover the rent, which, by virtue of the original contiact, would have become due at the expiration of the current quar- ter, nor rent^7'6i rata for the actual occupation of the premises for any period sliort of the quarter (Grimman V, L-gge, 8 B. & a. 324 ; Whitehead c. Clifford, 5 Taunt. '518) ; and where under the usual provision that, if the premises became vacant, the landlord might relet and charge the tenant with the deficiency, and the tenant gave notice of his inability to continue to pay rent, and the landlord thereupon consented to a reletting, it was held not a surrender, and that the original lessee was still liable for the deficiency (Ogden n. Rowe, 3 E. D. S. 312) ; and where the lessee covenants (hat if the lessor shall re-enter during the term for condition broken, and shall be unable to relet the premises for a sum equal to the amount of the rent reserved, that he will pay the lessor the deficiency, and the lessor re-enters and relets the iiremises for the residue of tiie term, the covenant is valid and binding upon the tenant, but the landlord can only recover of the lessee the difference between the amount of the rent reserved bythe original lease and the amouut of all the rent realized during the term from the original lessee and tne tenant to whom the premises v/ere relet ; and when tlie lessor, after a re entry and a reletting of the premises, nnder such con- dition, brings an action upon such covenant before the rent reserved from the tenant to wnoni be relet is due, he can only recover the deficiency wnich exists, after allowing the amount of the rent towaras the rent re- served from the original lessee. JNor ia such lessor entitled to any allowance, as against lae original lessee, for expenditures made upon tue premises after the re-entry, although thereby he was enaoied to and did obtain more rent for the residue ot ttie term, from the tenant to whom he relet the premises (Hackett v. Richards, 13 If. Y. 138 ; Hall v. Uonld, Id. 127). Where a tenant before the expirauon ol his term in- forms his landlord that the premises are not fit to live in, and that lie will surrender them ana have nothing farther to do with them, and pays ud the rent to that time, and the landlord tells him that he will let the premises on his account, and hold him responsible for the rent, held, no evidence of a suvrenaer. although the landlord afterwards let the premises to a new tenant, and received rent of him (Bloomer v. Merrill, 29 How. 259 ; 1 i)aZ?/ 485). Proof of an oral declaration by a lancilord, that on payment of rent ro a particular day he would release the tenant from lurtner liability ac- companied by proof of payment of such rent, is not suf- ficient evidence of the surrender of premises held under a written lease (Goelet v. Ross, 15 Abb. Fr 251). Where a tenant informed his lanuiora of his inten- tion to remove from the demised r>remises on a certain day, and the latter thereupon saia ue was sorry, for then he must get some other person to nire the prem- ises ; and the landlord also gave the tenant permission to leave some of his property on the premises after such day ; held, that giving such permission is evidence from which an acceptance of a surrender of the premises lis LANDLOED AND TEJTAltt. could be presumed, and if so presumed no rent could accrue thereafter (Stanley v. Koeliler, 1 Hilt. 354). A lessor who has consented to a change of tenancy and of occupation, and received rent from the new tenant as an original and not as a sub-tenant, can not afterwards charge the original tenant for rent accruing during the occupation of the new tenant (Smith v. Niven, 2 Barb. 180). After a lessee had underlet the whole of the de- mised premises, by two written sub-leases, the landlord called on the under-tenants, produced the sub-leases, demandt'dof them the rent reserved, forbade tlieir pay- ing any more rent to the original lessee, said lie was the rightful landlord, and had taken tlie place off tiie les- see's hands, and afterwards collected all the rent which v/as ever collectfcd'of the sub-tenants, and held Lliat there v/^as a surrender of the original lease by operation of law (Bailey v. Delaplaine, 1 Sandf. 5) ; and the mere acceptance by the landlord of the key of tlie demised premises, from a tenant who quits possession during the term, is not an acceptance of the surrender, where the landlord states that lie I'eceives the key but not the premises (Townsend v. Albers, 3 lU. D. 8. 560). Where the landlord and tenant from year to year had agreed that another tenant should be substituted, which sub- stitution was accordingly made, Holrotd, J., held that tliis agreement operated as a surrender in law, and that consequently no surrender in writing was neces- sary (Stone V. Whiting, 2 StarJc. 235) ; but a tenancy from year to year created by parol, is not determinable by a parol license from the landlord to the tenant to quit in the middle of a quarter, followed by the ten- ant's quitting the premises accordingly, the statute requires that such a surrender should be by deed or note in writing, or by operation of law (Mollett v. Brayne, 2 Camp. 103) ; but where the lessee underlet, and the les- sor accepted the under-lessee as tenant, which accep- tance was afterwards assented to by the original lessee, the Court of King's Bench held that this amounted to a virtual surremier of the lessee's interest by act and operation of law (Thomas v. Cook, 2 B. & Aid. 119). In Murray v. SJjave (2 Duer, 183), the tenant requested to' be allowed to give np her lease, and the landlord ac- cepted the key and thereupon entered into a new agree- ment with another person, this was held a virtual acceptance of the landlord of the tenant's offered sur- render,and discharged her from her liability on the lease. In Kandell v. Rich (11 Mass. 494), it was held that a lease under seal was determined by the delivery of the key to the lessor, accompanied by his receipt of it, and putting another tenant in possession. In Talbot v. Whipple (14 J.?Ze7i,177),BiGELOW, C. J., said, "The rule of law as now settled by the recently adjudicated cases is, that any acts which are equivalent to an agreement on the part of the tenant to abandon, and on the part of the landlord to resume possession of the demised premise^ amount to a surrender by operation of law." If a land- lord relets the premises, without notice to the tenant that it is on his account, it dispenses with a formal sur- renderon the part of the tenant (Watts v. Atcheson, 3 Bing. 462 ; Peter v. Kendal, G B. & C. 703) ; and after an original landlord has recognized under-tenants as his tenants and as the persons responsible to him for the rent, he can not hold the assignors of such sub- ten- ants (Carter v. Hammett, 18 Barb. 608). B Agent's poTTcr to accept snrienaer. An agent employed to let pramises and collect the rents has uo authority to consent to the subslitutiou of anew tenant, and the discharge of the original lessee ; that not being within the ordinar.y scope of such an agent's authority (Wilson v. L3Ster, 64 Barb. 431). i Accepting new lease. The statute provides that "if any lease be surren- dered in order to be renewed, and a new lease be made 120 LANDIiOBb ATjlV TTEITAKT. by the chief JandJorcT. such new lease shall be good and valid to all intents and. purposes, witlionta surrender of all or any of the under-kaaes derived out of such orig- inal lease so aurrenciered ; and the chief landlord, his lessee, and the holders of such under-leases, shall en- joy all their rights and interests, in the same manner and to tlie same extent, as if tlie original lease had been still continued ; and the chief landlord shall have the same remedy by entry upon the demised premises for the rents and duties aecurea by such new lease, so far as tlie same do not exceed the rents and duties reserved in the original lease so surrenaered (I JEJdm. R. 8. 6911, § 2) ; and an acceptance dv the tenant of a new lease of the same premises, during the period of the first lease, will be deemed to be a virtual surrender of the former lease. It admits the caDaclty of the lessor to make such a lease, which he would not have without a surrender of the first lease, and the iDresumption of law is, that such lease has been surrendered ; for no man would take from an other a lease olDremises, of which he has already the legal control, and agree to pay him rent for it (Cole- man V. Maberly. S T. B. Monr. 220 ; Jackson v. Gard^ ner, 8 Johns. 394 : Koe v. Archbishop of York, 6 East, 86, 90, 101 ; Abeii v. Williams, 3 Daly, 17). EVICTION. 121 CHAPTER XIV. EVICTION. To be maintained in the peaceable and quiet enjoy- ment of the property demised to him, is the right of every tenant, but the obligation on the part of the landlord to protect his tenant in the possession and quiet enjoyment of the premises demised extends only to evictions and disturbances caused by himself, or by some one with title paramount, and the covenant of quiet enjoyment expressed or implied in a lease, only goes, therefore, to the extent of engaging that the land- lord has a good title, and can give a free unincum- bered lease of the premises demised, and the acts of strangers, not claiming under any title, can not in any sense be regarded as a breach of snch covenant on the part of the lessor (Weeks v. Bowerman, 1 Daly, 100 ; Johnson «. Oppenheim, 34 JV. T. Superior Court It. 416, 428, affirmed in 55 N. T. p. 280 ; 3 Duer. 464 ; 3 mil, 330; Taylor's L. & T. § 305); and to work a suspension of the obligations of the tenant, under the lease, while his rights under it remain in' full force, there must be an exclusion of the occupant from some portion of the premises demised, or a substantial and effectual deprivation of the beneficial enjoyment of the property in whole or in part (Edgerton v. Page, 20 N. Y. 281, 284 ; Lounsberry v. Snyder, 31 Id. 514). The following authorities illustrate the application of these general principles to stated cases. In Cohen v. Dupont (1 Sandf. 280 ; S. P. Djett v. Pendleton, 8 Cow. 727), it was held that it was not necessary that there should be a physical eviction or expulsion of the tenant by the landlord, to operate as a suspension of the tenant's liability to pay rent, and 122 LANDLORD AND TENAKT. that it is sufficient that there was an interference with or disturbance of the beneficial enjoyment of the de- mised premises, intentionally committed by the land- lord, and injurious in its character. In Cohen «. Dupont {supra) it appeared that the defendant's principal, Dr. Chase, occupying the second floor of the house, had reserved to himself in the lease, the privilege of exercising his vocation as a dentist. His business necessarily would lead to many visits to his apartments, and to tlj^ more in proportion to his prosperity. It seems that the calls made upon him, were in fact numerous ; and either because they were disturbed by the constant ringing of tlie door-bell, or from a mis- chievous or malicious motive, some of the plaintiff's family resorted to the expediency of muffling the bell. This was done frequently, and was continued, after the tenant remonstrated with the plaintiff against it, and after the latter, by exercise of his authority, should have stopped it effectually. The consequence of this conduct was, that persons coming to visit the tenant as a dentist, would pull at the bell, and wait from fifteen to twenty minutes and half an hour, before effecting an entrance, and sometimes were compelled to leave with- out succeeding in getting into the house, and if persis- ted in, the inevitable effect of such conduct would be seriously to impair, if not to destroy, the tenant's pro- fessional business. In addition to this, and calculated to affect the tenant in the same way, there were a variety of minor offenses committed by the plaintiff's family. They littered the stair-carpet with nut- shells, dirt, and other filth, with the sweepings from the story above, and with water spilled upon it, and placed snow balls in the window-sill, &c., to drip upon the carpet. On one occasion, a -placard was put on the stairway to call attention, by his name, to the filthy condition of the tenant's stairs ; such condition being in spite of great efforts on his part to keep it clean. EVICTION. 123 Impertinent and insulting language was addressed by the plaintiff's fanaily to persons visiting the tenant on business ; and loud singing and like noises were made on the stairway, calculated to disturb such persons. Such being the evidence, the Jury held that it proved an eviction of the tenant, and the court held that the conclusion was correct. In Dyett v, Pendleton (8 Cow. 727), it was held to be a good defense against a claim for rent, that the lessor was in the habit of bringing lewd women under the same roof with the house leased, though in an apart- ment not let, by which noise and disturbance was made, so that the lessee left the house with his family. In Rogers v. Ostrom (35 Barb. 523), it was held that tearing down a partition which separated the entrance to the tenant's room from a grog shop, so as to compel him to pass through the latter, in order to reach his own room, amounts to an eviction. In Smith v. Marrable (1 Carr. c& Marshm., 479), which was an action of assumpsit for tlje use and occu- pation of a furnished house, the defendant took pos- session, but quit at the end of four days because the beds, mattresses, and bedsteads were infested by bugs. A week's rent was tendered by him, but the action was prosecuted to recover for the residue of the term, which was four weeks. Lord Abiistger, 0. B., before whom the cause was tried, charged the jury that ''every per- son who undertakes to let a ready furnished house or apartment is bound to take care that the premises are free from nuisances ;" and he left it to thofjury to decide whether this house was in that condition. The jury found for the defendant, and on a motion for a new trial the court agreed that the charge was right. In Salisbury" v. Marshal (1 Carr. & Payne, 65), the prem- ises became ruinous before the expiration of the ten- ant's term, and he abandoned them. At the commence- ment the landlord said he would put tliem in good re- pair, and something had been done for that purpose. 124 LANDLOED AND TENANT. In an action for use and occupation, Chief Justice Tin- pal laid some stress on the peculiar words of the lease, and told the jury that they must determine "whether the premises were put into such a reasonable and de- cent state of repair, as that a decent family might be supposed to occupy them during that time ;'' " whether such repair had been made at the time when the de- fendant was to go in, as that they could be reasonably expected to continue during the tenancy, and give. the tenant the decent enjoyment of the premises.'' The jury found for the defendant. In Gilhooley-a. Washington (3 Sandf. 330, affirmed in Court of Appeals, 4 N. T. 217), it was held that if a landlord lets a part of a house to one tenant, and then a part of the same house to another, and ttie one ten- ant makes his part a disorderly house and a nuisance, so as to render the other portion no longer habitable, the lease to the latter is not thereby determined, nor is he excused from the payment of rent. The doctrine of eviction by a nuisance can not be applied where the landlord lets apart of his tenement in good faith, and is not instrumental in producing the nuisance. Nor is it peculiarly the landlord's duty to initiate proceedings against the disorderly tenant for a misdemeanor. (See Townsend v. Grilsey, 7 Abh. N. 8. 59 ; and see also title. " Fraud in the Leasing of Premises," ante, p. 34),' In Randell v. Alburtis (1 Hilt. 285) it was held, that the refusal by a landlord occupying premises in con- junction with his tenant, to permit an under-tenant to occupy the premises demised, constituted an eviction. In Christopher v. Austin (11 N. T. 216), it was held that an eviction from part of the demised premises, op- erates as a suspension of the whole rent. In Ogilvie v. Hull (5 Hill,52) it appeared that the land- lord, a year and more before the expiration of the lease, wilfully undertook to let the premises, and posted a bill on the building, but desisted before the commencement EVICTION. 125 of the last year, and it was held that this was not a constructive eviction. In Campbell v. Shields (11 How. Pr. 565), it was held that the landlord altering the wall of the house so as to make the rooms somewhat narrower, in compliance with a claim of an adjoining owner that the true boun- dary required it, the tenant remaining in possession was not an eviction. In Cowie ». Groodwin (9 Carr. & Payne, 378), it was shown that the wall of the house gave way, whereby the kitchen was filled with filth and rendered useless. The tenant quit in consequence of this state of the prem- ises, and an action for use and occupation was brought against him. Lord Denman asked the jury " whether these premises were unfit for proper and comfortable oc- cupation, and if the defendant bonaflde quitted the apartments as soon as he could procure others." The jury answered both questions in the affirmative, and the plaintiff elected to be non-suited. In Vatel v. Herner (1 Hilt. 149), it was held that an interference by the landlord with the person of the ten- ant, although on the demised premises, does not con- stitute an eviction ; and that the use of a privy by a landlord in a passage-way leading to the demised prem- ises, and which was there at the time of the hiring, al- though so used as to be offensive to the tenant, does not of itself constitute an eviction ; the tenant not being ac- tually deprived of any part of his premises. In Ogden ?;. Sanderson (3 E. B. S. 166), it was held that where the tenant is present at a negotiation to re- let the premises to a third person, and does not object, but proposes a surrender on his own part, a possession by such third person should not be considered an evic- tion. In Yanderpoel v. Smith (1 Daly, 311) it was held that the landlord continuing possession of a small part of demised premises for a very brief period after the ex- piration of the time fixed by the lease for his giving 126 LANDLORD AND TENANT. possession of it, without any intent to keep the tenant out of possession is not an eviction. In Lounsberry v. Snyder (31 iV. Y. 514), it was held that where the landlord piled fire- wood on a part of the demised lands, which did not interfere with the sub- stantial enjoyment of the premises, did not amount to an eviction but a trespass, and that to suspend the obligations of the tenant, under the lease,, while his rights under it remain, there must be an exclusion from some part of the premises, or a substantial and effectual deprivation of the beneficial enjoyment of the property, in whole or in part. In Edgerton v. Page (20 N. T. 281 ; S. P. Academy of Music V. Hackett, 2 Biit. 217), it was held that a tenant who has continued to occupy the whole of the demised premises during the whole period for which rent is claimed, is not released from payment of such rent by the landlord's acts of neglect diminishing the beneficial enjoyment of the premises during the period for which the rent is sought to be 'recovered. "While the tenant remains in possession of the entire premises his obligation to pay rent continues ; though it is otherwise if he is compelled to abandon possession be- fore the rent falls due. If while a tenant is in possesion of premises, the landlord enters and uses any part of them, he thereby deprives himself of his claim to rent (Griffltli v. Hodges, 1 0. & P. 419, 420) ; so also if after a tenant has left a house unoccupied, the landlord enters and is in profit- able occupation of the house, he can not recover rent from the tenant after such occupation ; but this result will not be produced by merely putting a person into the house to take care of it and prevent depredations (Bird V. Defonvielle, -2 C. & K. 415). The landlord of apartments deserted by the tenant may recover rent, although he has put up a bill in the window for the purpose of letting them (Eedpath v. Eoberts, 3 £Jsp. 225), or has lighted fires in the rooms and made some EVICTIOK. 127 use of sach fires (Grifiith v. Hodges, supra) ; and the landlord who relets deserted premises should give notice to the former tenant that he lets the premises solely on such tenant's account (Walls v. Atcheson, 3 Bing. 462), and a tenant who has been evicted from part of the demised premises does not, by the mere fact of demanding of his landlord a sum by way of rent for premises from which he has been evicted, waive his right of action for damages for the eviction (Drucker ». Simon, 4 Daly, 53). In Johnson v. Oppenheim (34 N. T. Superior Court B. 416; aff'd 55 N. Y. 280; 3. P. White v. Mealis, 37 N. Y. Superior Court B. 72; 3 Buer. 464 ; 2 Bosw. 127), it was held the acts of strangers erecting a building on an adjoining lot do not amount to an eviction, and that the landlord was not answerable for such acts ; and a landlord owning a lot adjoining prem- ises demised may build on such lot, notwithstanding the building cuts light and air from the premises de- mised. Such an act on the part of the landlord is not an eviction (Palmer v. Wetraore, 2 Sandf. 316 ; 9 N. Y. Leg. Obs. 173 ; 10 Barb. 537), and the undermining the tenant's wall, by an adjoinining owner, is no ex- cuse for the non payment of rent (Kramer v. Cook, 7 Gray, 550 ; 37 If. Y. SupW Ct. 73 ; 3 Buer. 464 ; 2 Bosw. 127). Effect of eviction. An eviction from part of the demised premises by the wrongful act of the landlord operates as a suspension of the whole rent (Christopher «. Austin, 11 N. T. 316), but if the eviction be by title paramount, the rent is to be apportioned (Blair v. Claxton, 18 N. Y. 539 ; Lansing v. Van Alstyne, 3 Wend. 561, 563). Eminent domain. The act of appropriating property under the right of eminent domain, is not an eviction which will bar a suit for rent (Folts v. Hautley, 7 Wend. 310 ; see Gillilan v. Spratt, 3 Daly, 440). 128 LANDLORD AND TENAKT. What the eviction affects. The eviction does not affect arrears of rent, but that accruing afterwards (McKeon_«. Whitney, 3 Den. 453; Giles v. Comstock, 4 N. T. 370), and the rule is the same although the rent is payable in advance, and the eviction occurs before the expiriation of the period in respect to which the rent is claimed {Id. Whitney®. Meyers, 1 Buer. 366J, and the eviction onl^ suspends the rent during the con- tinuance of the eviction (Ogden ». Sanderson, 3 E. B. S. 166). UNTENANTABLE PREMISES. 129 OHAPTEE XV. THE STATUTE RELATING TO UNTENANTABLE PREMISES. LAWS 1860, CHAPTER 345. An Act in relation to the Sights and Liabilities of Owners and Lessors, and of Lessees and Occupants of Buildings. Passed April 13, 1860. The Peo^jle of the State of New York, represented in Senate Assembly, do enact as follows: Section 1. The lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed, or be so in- jured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant, and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied. Sec. 3.* This act shall take effect immediately. Construction of said act. The act does not apply where the injury complained of existed at the time of the making of the lease (Bloomer v. Merrill, 1 Daly, 485 ; 29 Eow. Pr. 259) ; and where a tenant took possession of demised prem ises and removed within twenty-fonr hours thereafter, on account of blasting, on the adjoining lot, and it not appearing whether the house was unfit for occupation before or after the tenant took possession, it was held that the tenant was not exonerated by the act of 1860 from paying rent (Murray v. Waller, 42 How. Pr. 64) ; and to be absolved from paying rent, under this act, the tenant must surrender possession of the premises, and he will be held liable for the whole rent if he retain possession of any part (Johnson v. Oppenheimer, 34 JSr. Y. Superior Oourt, 416, affd in 55 If. Y. 280). In Fash v. Kavanagh (24 How. 347), it appeared that the defendant occupied rooms in the plaintiff's * So in the original. 17 130 lANDLOED AND TENANT. building, under a hiring by the month, the rent being paid in advance. The action was brought for the month's rent, payable August first, and' the tenant's de- fence was twofold : 1. That he removed from the prem- ises in the month of July, and before the rent claimed became due. 2. That before he left, the contents of the privy attached to the house overflowed his apart- ments, rendering them untenantable, and unfit for occu- pancy ; and having been on this account obliged to aban- don them, he was not thereafter bound or liable to pay rent, and in delivering the opinion of the court, Hilton J. , said : " I think the proof at the trial entitled the ten- ant to judgment on both grounds. The defendant testi- fied positively that he left on the 23d of July, and then oflfered the keys to the piainti&''s agent, who declined to receive them. That at the time, the filth from the privy had flowed over his apartments, rendering them untenantable and unfit to occupy." The learned judge after deciding that the tenancy was only for the month, and that it had been terminated before the rent sued for accrued, proceeded to the second ground of de- fense, and said that "the reason assigned by the tenant for leaving was undoubtedly sufficient to justify an abandonment under the provisions of the act of 1860 " {supra), and referring to that act he continued: " The injury contemplated must obviously be of a piiysical nature, such as if done by the landlord would amount to an eviction of the tenant from the whole or part of the demised premises. It must be to the building occupied, and not caused by the privity or procure- ment of tlie tenant, or by his neglect or want of proper care. If it be of the nature the present case discloses, I have no doubt it would fall within the class of injuries which the law was passed to meet. As an occupant of premises in a tenement house, the defendant was not bound to either see to the erection of a proper sink or privy upon premises, or to cause it to be emptied, to prevent an overflow. This was a matter which the TlNTEKANTABLE PREMISES. 131 landlord who, by maintaining a building of that class— one of those so-called modern improvements which the necessities of the present day have required to be erected in the compact portion of oiir city, where rents are high and the poor abound— was required to look after and prevent, or else stand to the consequences. I do not mean to be understood as holding that a landlord is required, after he has rented a house, to attend to the emptying of the sinks and cesspools attached to it ; on the contrary, that duty ordinarily devolves upon the tenant, who is bound to see that the premises are not injured by any inattention to his duties in this respect ; but I do mean to say, that modern improvements require appropriate rules, and, as in a tenement house, no occupant of a single room, renting direct from the landlord for a short and may be uncertain term, generally from month to month, can be required to perform this duty, it follows of necessity that it must fall upon the land- lord to attend to it. On the other hand, if, as the plaintiff' s agent testified, the filth came from the ad- joining premises, and as it is not contended it thus came through any fault, procurement or neglect of the defendant, it was equally an injury to the building within the provisions of the law referred to. It will probably be said that if this view be correct, a landlord may be left without remedy against the acts of those"^ who covertly furnish his tenants with excuses for aban- doning demised premises. I can only answer, that the statute is certainly extraordinary in its character, and may give rise to great abuses being practiced under it by unwilling tenants upon land-owners ; but it is our duty only to construe its provisions, and not speculate upon the injustice it may produce, leaving it to future legislatures to remedy any of the evils that may spring from it." In Suydam v. Jackson (54 N. 1'., 450) it was held "that the act of 1860 before referred to, has reference to 132 LANDLORD AND TENANT. a destruction or injury from some sudden and unex- pected action of the elements, or other cause, and not to the gradual deterioration and decay produced by the ordinary action of the elements, and that it does not af- fect the common-law rule requiring the tenant to make ordinary repairs." This is the most important decision under this act, and is controling as to the construction of it. (See Title "Eviction, " ante, p. 121.) OF EXCAVATIONS. 133 CHAPTER XYI. OF EXCAVATIONS. Excavations, particularly upon city lots, frequently tend to endanger adjoining buildings, and therefore give rise to important questions of duty and responsibility, which sometimes require prompt decision upon the part of those interested, in order that the rights of property and possession, in the buildings endangered should receive the necessary protection and support from the persons owing that duty. These questions, therefore, more frequently arise between the owner or occupant of the buildings endangered by the excavation, on the one side, and the party making the excavation upon the other ; and sometimes come up between the tenant of the endangered building and his landlord, and in order to present the respective rights, duties, and liabilities of these several interests intelligently, it will be neces- sary to consider first the general right to excavate, and next the rights of the adjoining owner, and of his ten- ants in possession of the building endangered by the excavation, growing out of the inconveniences arising therefrom. First. As to the general right to excavate, the maxim, sic utere tuo, ut alienum, nov IcBdas, is not of universal application ; for as a general rule, a man who exercises proper care and skill, may do what he will with his own property, provided the act done does not amount in law to a nuisance (Radcliff's Executors t?. The Mayor, &c., of Brooklyn, 4 N. T., 196), and an own- er may excavate his land to any extent he deems neces- sary for building purposes, or for any legitimate use to which he intends to put the property, being liable only for the want of proper care and skill in doing the work. 134 LANDLORD AND TENANT. Of course the landlord can not excavate upon any part of the demised premises, during the term, without the tenant's consent, for such an excavation would amount to an unlawful deprivation by the landlord of part of the thing demised, and would operate as a constructive eviction of the tenant, and as a suspension of the rent, while the eviction continued. Excavations as affecting adjoining: owners. A distinction is made in many of the cases between the right of an owner of unimproved property to its natural support from adjoining land, and the right of an owner who has, by the erection of buildings, put au artificial weight upon his land so as to require for it greater support than it would have required in its natural state ; and while the first right is sustained by numerous authorities, the latter right is universally , denied. This distinction is stated by Rolle, in his abridgment. He first gives the Judgment of the court in Wilde «. Minsterley, to the effect that if A erect a house on the confines of his land next adjoining the land of B, and B afterwards digs his land so near the foundation of A' s house (but on no part of his land), that thereby the foundation, and the house itself, fall into the pit, yet no action lies by A against B, because it was A's own fault that he built his house so near to B's land ; for he, by his own act, can not hinder B from making the best use of his own land that he can. Rolle then adds: "But it seems that a man who has land next adjoining my land can not dig his laud so near mine that thereby my land shall go into the pit; and, there- fore, if an action had been brought for that, it would lie." This same distinction was noticed and approved in Thurston «. Hancock (12 Mass., 220 ; see also Farrand «. Marshall, 21 Barb. 409). In Lasala v. Holbrook OP EXCAVATIONS. 135 (4 Paige, 1 69), the Chancellor decides that I can not, by erecting a building near the extremity of my own land, deprive the adjoining owner of the right of dig- ging In his own soil for a legitimate purpose, even though my house be thereby ruined, but he says, " I have a natural right to the use of my land, in the situ- ation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots ; and the owners of those lots will not be permitted to destroy my land by removing this natural support or barrier;" but the Court of Appeals in Radcliff's Executors w. The Mayor &c., of Brooklyn (4 N. T. at p. 203), speaking of this distinction say, that although the reasoning of the Chancellor is not without some force, so long as the land on both sides remains in its natural state, yet it was considered unsound — especially in reference to property in cities and large towns — the court observing that if the doctrine were carried out to its legitimate cons(?cLuences, it would often deprive men of the whole beneficial use of their property ; that an unimproved lot in the city, would be worth little or nothing to the owner, unless he were allowed to dig in it for the pur- pose of building ; and that if he may not dig because it will remove the natural support of his neighbor's soil, he has but a nominal right to his property, which can only be made good by negotiation and compact with his neighbor: that a city could never be built under such a doctrine ; and Beojstson, C. J., in the same case says, " I think the law has superseded the necessity for negotiation, by giving every man such a title to his own land that he may use it for all the purposes to which such lands are usually applied, without being answerable for consequences ; provided he exercise proper care and skill to prevent any unnecessary injury to the adjoining land-owner." But a man may do many things under a lawful authority, or in his own land, which may result in an injury to the property of others, without being answerable for the consequences. In- 136 LAIfDLORD AND TENANT. deed an act done under lawful authority', if done in a proper manner, can never subject the party to an ac- tion, whatever consequences may follow. Nor will a man be answerable for the consequences of enjoying his own property in the way such property is usually enjoyed, unless an injuiy has resulted to another from the want of proper care or skill upon his part ; and a man may in the enjoyment of his own property, withoat being liable for consequential damages build upon his own land, though it stops the lights of his neighbor (Parker v. Foot, 19 Wend. 309), and even though he build for the very purpose of stopping the lights (Mahan v. Brown, 13 Id. 261) ; and a man has aright to build a fence upon his ground for the purpose of dark- ening the windows of his neighbor (Pickard v. Collins, 23 Barb. 444). He may pull down his own house, though the adjoining house fall for the want of the sup- port which it before had ; and he may do it without shoring up the adjoining house — that being the business of the owner (Peyton v. The Mayor, &c. 9 B. & O. 725). He may pull down his own wall, though the vaults of his neighbor be thereby destroyed (Chad wick v. Trower, 6 Bing. N. G. 1). He may build a house, and make cellars upon his soil, whereby a house in the adjoining soil falls down {Com. Dig. action on the case for Nuisance, c). He may dig in his own land, though the house which his neiglibor has previoasly erected at the extremity of his land be thereby undermined and and fall into the pit (2 Hollers Abr. Trespass, I. pi. 1 ; Wyatt ?). Harrison, 3 B. & Ad. 871). In Panton v. Holland (17 Johns. 92), the defendant excavated for the purpose of laying the foundation walls on his lot adjoining the plaintiffs house on the contiguous lot, whereby the walls of the plaintiffs house were cracked, and the house was otherwise in- jured ; and it was held that no action would lie. In Lasala v. Holbrook (4 Paige, 169), the plaintiffs were the owners of a church, built within six feet of 'the OF EXCAVATIONS. 137 line of their lot, and the defendant, for the purpose of building in Ms adjoining lot, was sinking the foundation for his building sixteen feet below the natural surface of the ground, and ten feet below the foundation of the church, whereby the foundation of the church was greatly endangered ; and yet an injunction to restrain the excavation, which had been granted by a master, was dissolved by the chancellor, on the ground that the defendant was exercising a lawful right. In Thurston v. Hancock (12 Jf ass. 220), the plain - tiflE had built a valuable house on Beacon hill, in the city of Boston, one side of the house being within two feet of the side of his land, and had taken the pre- caution to sink his foundation fifteen feet below the ancient surface of the ground. Seven years afterwards the defendant commenced digging and carrying away the earth from his adjoining land, and dug to the depth of from thirty to forty-five feet below the natural sur- face of the ground ; by reason of which the foundation of the plaintiff' s house was rendered insecure, and he was obliged to take the house down. And yet it was held that no action lay for the injury to the house, be- cause the defendants having the entire dominion, not only of the soil, but of the space above and below the surface, could not be restrained in the exercise of their right, unless by covenant, or by custom ; that the house had not the qualities of an ancient building, so that the plaintiff could prescribe for the privilege of which he had been deprived ; and that a man who builds a house adjoining his neighbor's land ought to foresee the probable use by his neighbor of the adjoin- ing land. In Dodd V. Holme (1 Ad. v. Ellis, 493), the defen- nant was held liable on the ground that the injury complained of was occasioned by his negligence. In Pennsylvania, it was held that where the owner of two adjoining lots builds thereupon, he is bound to use proper materials and reasonable skill. If he does 18 138 LANDLORD AND TENANT. not, and the wall falls, upon his neighbor's excavating his own lot, using reasonable care, no damages are re- coverable (Rickart o. Scott, 7 Waits, 460 ; and see Oat V. Middleton, 2 Miles, 247 ; Norris v. Adams, Id. 337 ; White V. Snyder, Id^ 395). An owner has the right to take down his building and excavate the soil, or to do the latter act alone. Although by these acts the other building is injured or endangered, this furnishes no ground of action pro- vided reasonable notice was given, and proper care used in the operation, which is a question for the jury. It is otherwise, however, where an adjoining owner claims under a grant or an ancientor prescriptive right pertain- ing to the building or the foundation. This title limits and controls that of his neighbor ; so, where the wall of the house taken down has long supported the beams of the other house, this may give a right to have the beams inserted in the new wall (Peyton v. St. Thomas, 9 Barn. <& Cr. 725 ; Massey v. Goyder, 4 Carr. & P. 161 ; Wyatt v. Harrison, 3 Barn. & Ad. 871 ; Jones v. Bird, 5 Barn. & Aid. 837 ; Rickart v. Scott, 7 Watts, 460 ; Dodd v. Holme, 3 Nev. & M. 739 ; 1 Ad. & Ml. 493 ; Trower v. Chadwick, 3 Bing. JST. C, 334 ; Part- ridge V. Scott, 3 Mees. & W. 220 ; Bradbee v. Govern- ors, &c., 2 Dowl. p. R. 164 ; Davis v. London, &c., 2 Nich. (&c., 308). A declaration alleged that the plain- tiffs were possessed of a vault, and of certain wine therein ; that the defendant was about to pull down and remove certain other vaults and walls, next adjoining the plaintiff's vault ; and therefore was bound, in the event of his not shoring- up or protecting said vault, to notify the plaintiff of his intentions, that the plaintiff might thereby protect his own property ; and also to pull down and remove the vaults and walls with such care and skill that the plaintiff' should not be injured thereby, and it was held that the defendant was not bound to shore-up the plaintiff's vault, to notify him of his intentions, nor, in the absence of any knowledge OF ExcAvAWojsrs. l39 on his part as to the existence and situation of the plaintiff's vault, to use such care and skill in the ope- ration, as would prevent injury to the plaintiff (Chad- wick V. Trower, 8 Scott, 1 ; 6 Bing. N. O. 1). A. owned a building, the footing of one of the walls of which supported one of the walls of an adjoining house, belonging to B. A being about to pull down and remove the foundations of his house, notified B of his intention, and used reasonable and ordinary care in the work, but took no means to preserve B's building, although the nature of the soil required him to lay the new foundation several feet deeper than the old ; and it was held that A was not liable for an injury thereby caused to B's house (Massey v. Goyder, 4 Carr. & P. 161). In an action on the case the declaration alleged that A was lawfully possessed of a dwelling-house, adjoining a dwelling-house of B, and that B dug into the soil and foundation of the latter so negligently, and so near A's house, that the wall of this house gave way. Upon demurrer to that part of the declaration which alleged the digging so near, &c., the defendant had judgment. The question was stated to be, whether, if one builds to the extremity of his own land, the adjoining owner may dig the ground there so as to remove some of the soil which supported the building. It was suggested, that if the building were an ancient one, or if it did not increase the weight upon the soil of the party erecting it, an action might lie. But one is not to be debarred from digging his own soil, because his neighbor's will then become incapable of supporting an artificial weight (Wyath ■». Harrison, 3 Barn. & Ad. 871). In Brown ». Windsor (1 Oromp. & Jer. 20), an excep- tion to the rule arising out of acquiescence on the part of the plaintiff was considered. These facts appeared: In 1803, the house of A, the plaintiff, was built against the pine end wall of the house of B, the defendant, by 140 LANDLORD AND TENANT. permission. In 1829, B made an excavation in a care- less and unskillful manner, in his own land, near this wall, thereby weakening it and injuring A's house, anJ it was held, that both the express permission and the long acquiescence gave A a right of action ; and that the declaration alleging ownership of a house, belonging to and supporting which were certain foundations, was well supported, as it intended only an easement in such foundations. In several of the cities, party walls, buildings, and excavations are regulated to a certain extent by statute. The New York statute, applicable to lands in the cities of New York and Brooklyn, provides : "§34. That whenever excavations hereafter com- menced, for building or other purposes, on any lot or piece of land in the city and county of New York, and the city of Brooklyn, shall be intended to be carried to the depth of more than ten feet below the curb, and there shall be any party or other wall, wholly or partly on adjoining land and standing upon or near the boundary lines of such lot, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall at all times from the commence- ment until the completion of such excavations at his own expense, preserve such wall from injury, and so support the same by a proper foundation that it shall remain as stable as before such excavations were commenced (1855, ch. 6, and see 2 B. S. 5th {Banks) ed. p. 1002). This statute, it will be observed, changes the com- mon-law rule, as to those two cities (New York and Brooklyn), in cases where the party excavating intends to carry the excavation to the depth of more than ten feet below the curb, and in such cases the persons causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, are required at all times from the com- mencement until the completion of such excavations, at OF EXCAVATIONS. l4l their own expense, to preserve suet wall from injury and to so support the same by a proper foundation that it will remain as stable as before such excavation was commenced. The duty under this statute attaches to the party making the excavation only in cases where it is intended to carry the excavation to a greater depth than ten feet below the curb, and in such sases only upon being afforded by the owner of the adjoining land the necessary license, to enter upon it, for the purpose of such protection, and this license must be explicit, and sufficient to protect the party excavating, and it should be given by all persons who would be injur- iously affected by such acts (Sherwood v. Seaman, 2 Boaw. 127), and in all other cases the common-law rule remains in force. The effect of adjoiuiug excavations upon the relation between the landlord and tenant of the house inconvenienced by them. If a tenant in possession of a building suffer damage to his possessory rights by adjoining exca- vations, he may if it be a case in which the party mak- ing the excavation is liable in damages according to law, recover by action whatever damages his particular estate or property received by the wrongful act of the party excavating. As between the tenant thus injured and his landlord, however, the rule of law is that a landlord, in the ab- sence of an express covenant, is under no obligation to repair, or to do any act to protect his tenant from the consequences of the lawful acts of the owner of adjoin- ing premises, in excavating them to such depth as would endanger the stability of the demised premises (Sher- wood V. Seaman, 2 Bosw. 127; Howard o. Doolittle, 3 Duer. 464 ; White v. Mealio, 37 N. Y. Superior Qt. 72) ; and mere knowledge of the landlord, that his ten- ant is willing that he should give tlie license provided for by statute, does not create a duty to give it, nor 142 lanUloed And IbnaNI. subject the landlord to an action, because he did not give it (Sherwood v. Seaman, supra). A lessee, who covenants to restore the premises at the end of the term, "in as good order and condition, &c. (reasonable use and wearing thereof, fire and other unavoidable casualties excepted), as the same now are or may be put into by the lessor," and to pay rent dur- ing the term, is not excused from paying rent, by the undermining of the partition wall by the owner of the land adjoining, while building upon his own premises, after notice to the lessor of his intention to build, and the lessor's omission to support the wall, even if by the custom of the place, the landlord is bound to support and secure his foundation and walls in such cases (Kramer v. Cook, 7 Oray {Mass.) 550). A lease that provides that the landlord may at rea- sonable hours in the day time enter the premises to ex- amine or to make such repairs . and alterations therein as shall be necessary for the presevation thereof, or of the building, gives a clear right and authority (in case the excavation of the adjoining property threatens in- jury or destruction to the building or premises leased), to enter the premises and shore-up and strengthen the same, by running large pieces of timber known as "needles" through the basement to support the floor of the store occupied by the tenants, and in such case the landlord is not liable in damages to the tenant, for an interruption to business, &c., unless it appears that the work was done in an unskillful and negligent manner (White v. Mealio, 37 N. T. Superior Ct. 72). And where a landlord owning a lot adjoining the de- mised premises, built a house on such lot so as to cut off the tenant' s light and air, the obstruction was held not to amount to an eviction (Palmer v. Wetmore, 2 Sandf. 316 ; Myers o. Gemmel, 10 Barb. 537). Other acts of adjoining owners. Where a person is authorized to do an act upon an- OF EXCAVATIONS. 143 other' s premises the natural effect of which is to endan- ger the lives and property of those giving the authority, the person so authorized to do the act is bound to provide and maintain all suitable and proper safeguards against injurious results therefrom. The law presumes that the authority given is coupled with that condi- tion. The owner of land is, therefore, limited in the use of it, by the rights of others to the lawful possession of theirs, and in making use of his own he is liable for direct injuries to their possession, without regard to the extent or motives of the aggression. Thus the owner who in making a lawful excavation on his own land, casts earth and stones upon that of his neighbor by blasting is answerable for the damage, though no neg- ligence or want of skill be proved (Hay v. Cohoes Co., 2 JV. Y. 159, 163, afl'g 3 Barb. 42 ; Gourdier z. Cor- mack, 2 B. D. S. 200 ; Ulrich v. McCabe, 1 Hilt. 251) ; and in such case the tenant may have an action for his injury to his possession, as well as the reversioner, under the statute, for injury to the reversion (Gourdier V. Cormack, supra; Ulrich v. McCabe, Id. ; Hardrop V. Gallagher, 2 E. D. 8. 523). ExcaTation adjoining highway. Where excavations are made so near to a highway, that a person passing along by slipping may be precip- itated into it, the person making the excavation will be liable for all the injuries sustained thereby, provided the person injured was himself guilty of no contribu- tory negligence. A person can not rush blindly upon danger, and then charge the responsibility for his inju- ries upon another. In an action for injuries sustained by falling into a sewer in course of construction in a public street, it was held, that although the plaintiff previously knew that the sewer was being constructed, yet in the absence of any guard-light, or other special 144 LAWDLOED AWD TENANT. notice sufficient to call her attention to the hazard she ran, she was not guilty of contributory negligence in attempt- ing to cross the street ; that in such an action it is a question of fact for the jury to determine, on conflict- ing evidence, whether at the time of the accident the excavation was without sufficient guard or light, and that it was also a question for the jury in such a case, under proper instruction by the court, whether the plaintiff was guilty of contributory negligence (Bate- man V. Ruth, 3 Daly, 378). PARTY WALLS. 145 CHAPTER XVII. PARTY WALLS. In our populous cities, the value of land and proper economy in its use, have given rise to that species of easement known as party walls. Their frequent use suggest many interesting questions affecting the rights and liabilities of those owning adjoining lands, separ- ated by party walls. These walls are generally used between two estates for their common benefit, in sup- porting adjoining buildings. They may rest entirely upon the land of one or upon that of two adjoining owners, in equal or in any other agreed proportions. They are created by grant, agreement, or by prescrip- tion. In general, however, party walls will be found "to be built on the common property of the two, and to be the common property of both ; ' ' and in the absence of any further proof than that which is afforded by evidence of a common user, such, will be presumed to be the case. By the common law, party walls exist only by virtue of statutory provisions, grant, or pre- scription. If one lot owner erects a building upon the extremity of his land, the walls of which are entirely within his own domain, an adjoining owner can not use the wall to support his timbers without rendering himself liable as a trespasser. But if he fastens his timbers in the wall by the consent of the owner, and maintains them there uninterruptedly for twenty years, or the usual statutory period, the wall becomes charged with the servitude of support as a party wall, and to that extent the owner loses his absolute and entire control over the wall. The most usual and ordinary method of creating party walls is where the owner of adjoining lots erects 19 146 LANDLOED AND TEKANT. a block or a row of buildings thereon, the walls of each lot mutually supporting the other, and conveys the lots separately, making the wall the dividing line between the two. The mere fact, however, that a wall has been built partly upon to adjoining lots and is used by both, does not necessarily make it a party wall (Roberts v. White, 2 Jiob. 425) ; nor does the fact that an ad.join- ing owner has inserted the timbers of his building into the walls of the other owner, without permission, give him any right to the support of the wall, even though done without objection, unless there has been an express and unequivocal ratification of the act, or it has been continued for the statutory period (McOon- nel V. Kibbee, 33 111. 175). The question whether an executed verbal agreement between adjoining owners in regard to a party wall, was enforceable or not, came up in the New York Marine Court at the June term, 1875, upon a motion for a new trial, in the case of Polye v. Sheehy, et al. (reported in the New York Daily Begister, of July 12, 1875), the opinion in which case contains the various authorities upon the subject, and it is on that account considered of suffi- cient interest for publication. McAdam, J. — This action is brought to recover one- half of the expense of a party wall, erected one-half upon the plaintiff's land and one-half on land which the plaintiff' claims belongs to the defendants. The re- covery is claimed under a parol agreement, made about July, 1870, whereby the defendants agreed to pay the plaintiff" three hundred and fifty dollars, upon the completion of the work. The jury, upon the con- clusion of the trial, found the contract to be as alleged, and also found that it had been performed in all things by the plaintiff", and awarded him a verdict for the agrefed price, with interest. The defendants now move for a new trial, upon the ground that the agreement is one which creates an interest in land, and that it is on that account void, not being in writing (3 R. S., 5th ed. p. PAETt WALLS. 14"? 220, §§ 6, 8). This objection is inapplicable to the pres- ent case. The agreement does not create an interest in lands within the meaning of the statute. It is substantially an agreement to pay for improvements upon land, dis- tinct from title or possession, or in other words, to pay for work and labor bestowed upon the land, and such promises, although by parol, do not come within the statute (Lower v. Winters, 7 Qow. 263 ; Frear v. Har- denbergh, 5 Johns. 272 ; Benedict v. Beebee, 11 Id. 145 ; see also 37 N. T. 106). The Superior Court, general term, in Maxwell v. East River Bank (3 Bosw. 146 ; per Bos worth, J.), held: "We regard it as settled law, that when the owners of adjoining lots agree, though verbally, that each will erect a building or store on his own lot, and that the dividing wall shall be a party wall, and shall be used to support the beams and roof of each building, and they build according to such agreement, and with a view to execute it, neither can remove or do any- thing to impair the stability or sufficiency of such wall, so long at least, as the buildings continue in a condi- tion to subserve in every substantial respect the uses for which they were erected." In McLarney v. Pettigrew (B E. D. Smith., Ill), an action commenced to recover the alleged consideration for a parol license, granted by the plaintiff, to insert into the wall of his house the beams of a building in course of erection by the defendant, the Common Pleas, general term, held: "There is nothing in the contract giving the defendant any interest in the land. When- ever the wall shall be removed the plaintiff' s title to the land will remain unimpaired, and the defendant will have no claim to rebuild the wall on the plaintiff's lot or to use any other wall the plaintiff might build. It is a mere license to insert the beams in the present wall, without any interest in the land on which the 148 LANDLORD AND TENANT. wall stands. A license of this kind is not within the statute." In Talmadge v. Kensselaer & S. E,. R. Co. (13 Barb. ,493), the Supreme Court held that an agreement by one party, on a sufficient consideration, to build and keep up a division fence between him and the other party is not an agreement creating an interest in the lands, and does not fall within any of the cases where the contract was required to be in writing. The rule that an action will not lie upon a parol contract creating an interest in land has, like many general rules, its exceptions, de- pending upon the peculiar circumstances of each par- ticular case ; and, where such contracts have been fully executed upon the one side, recoveries have in some in- stances been allowed against the other, notwithstanding the statute. (For example, see Thomas v. Dickenson, 12 N. Y. 364 ; Bowen v. Bell, 30 Johns. 338 ; Murray «. Smith, 1 Duer, 412 ; Hess v. Fox, 10 Wend. 436). In Rundge v. Baker (67 iV. Y. 209), the Commission of Appeals held that where, under a parol agreement between two adjoining proprietors to jointly build a party wall, one-half on the premises of each, and the parties have gone on and built a portion of the wall, and the one who has prepared his materials and planned his buildings in view of and relying upon the performance of the contract, upon the refusal of the other to proceed, may complete the wall himself, and recover of the other one-half of the expense, and that the statute is no impediment to such recovery. The contract sued upon in the present case, although not in writing, was under the circumstances binding up- on the parties, and for this reason the motion for a new trial must be denied. The general principles of law, in regard to party walls, are best illustrated by a reference to the authori- ties, in which these principles have been applied to the peculiar circumstances of particular cases. Thus when the owners of adjoining lots, by agreement, construct a Paety walls. 149 wall, partly on each lot, for the common support of their buildings, the wall so constructed, if used as such for twenty years, is a party wall in the legal sense of the term, and the owner of each house has an easement for its support in that portion of the wall which stands on the adjoining lot. So, when the owner of two ad- joining lots erects a building on each with a wall partly > on each lot, for their common support, a conveyance by him of either lot, conveys with the building an ease- ment for its support on that part of the wall which stands on the other lot (Webster v. Stevens, 5 Duer, 553 ; S. P. Eno v. Del Yecchio, 4 Id. 53). This is true not only of the foundation wall (Webster v. Stevens, 5 Duer, 553 ; Eno v. Del Vecchio, supra), but of the entire wall of the building abutting upon the adjoining premises, so far as it is made use of by, and furnishes support for, the building of the adjoining owner, even though the wall is not made the division line. A con- veyance of part of a block, or row of houses, in the usual form with all appurtenances passes an easement for the support of the part of the building so conveyed (Eno V. Del Vecchio, supra.; G-len v. Davis, 35 Md. 2o8; 6 Am. Hep. 389) ; and the easement would pass even though the word "appurtenances" was wholly omitted from the conveyance. The easement is open and apparent, and passes as an incident to, and a part of the estate the same as any other easement. In the United States v. Appleton (1 Sumn. TJ. S. 492), it appeared that in 1808 a block of buildings was erected in Boston, consisting of a central building and two wings, wit]i a piazza extending along, in front of, and for the entire length of the central building, with doors in the sides of the wings, which opened on, and swung over the piazza, the upper part of which doors had glass in them, and were used as windows. In 1811, the two wings were conveyed to different persons, no mention being' made in the conveyance of the doors opening upon the piazza. In 1816 the central building l50 lANDLOED ANi) TtiNAlir*. was sold and conveyed to the United States. The Grov- ernment claimed the right to erect a building to cover their entire lot, which would close up the doors of the wings ; but the court held that the use of these doors and windows passed as appurtenances, and that, too, without any reference to the length of time they had been used. There is no duty or obligation on the owners of adjoining building lots in a city, to unite in building a party wall on the dividing line (Sherred v. Cisco, 4 Sandf. 480). If the owner of a city lot, on building it, place half of the wall upon the adjoining lot ; the owner of the latter is not liable to contribute towards the expense of the wall, upon his subsequently using, in his own erection, the part which stands upon his own land {Id.). So where party walls are erected by one of two adjoining lot owners, the wall resting upon the land of both, there is no obligation at common law on the part of the other owner to contiibute toward the expense of the construction of the wall, where he subsequently uses it as a support for a build- ing erected by him. His doctrine rests upon the prin- ciple that the land owner is to^be his own judge as to what disposition he will make of, or what erection he will make upon his land, and that he is not to be bene- fited without his own request or sanction (Moore v. Cable, 1 Johns. CTi. 385 ; Gillett «. Maynard, 5 Johns. 58 ; Dewey v. Osborn, 4 Cow. 329 ; Erwin v. Olmstead, 7 Id. 229 ; Sherred v. Cisco, 4 Sandf. 480) ; where two adjoining owners enter into an agreement by which one of them erects a party wall resting upon the land of each, and erects a building thereon, under a promise from the other owner that whenever he uses the wall by the erection of a building thereon, he will pay one- half of the expenses thereon, he will pay one-half of the expense of the construction, this is not a covenant running with the land, and will not be binding iipon, nor can it be enforced against the grantee of the adjoin- ing lot in favor [of the grantee of the builder ojF the PAETT WALLS. 151 wall, even though lie uses the wall as a support for a building erected by hira after his purchase of the pre- mises. The benefit of a covenant passes with the land to which it is incident, but the liability imposed by the covenant is confined to the original covenantor, unless a privity of interest between him and the covenantee exists oris created at the time when the covenant is made, such a covenant is personal to the builder, and does not pass by grant (Hurd v. Curtis,19 PicTc. 459 ; Black v. Isham,16 Am. Law Reg. [Ind.] 8 ; Keppel v. Bailey, 7 Myl. & K. 517 ; Todd «. Stokes, lOPenn. Si. 155 ; Davids v. Harris, 9 Id. 503 ; Gilbert v. Drew, 10 Id. 219 ; Hart v. Kurcher, 5 ;S'. c& i2. 1 ; and see the cases cited at page 114, anie, but see Brown v. Pentz, 1 Abb. Ot. of App. Decis. 227, and 57 N. T. 684). A grant to A. and his heirs, and his right to erect and maintain a party wall on the top of the grantors wall ; Jield, even, if not in fee, to give the right so long as the sustaining wall stood, and answered the purpose (Brondage v. Warner, 2 Hill, 145). Party wall not an incumbrauce. A party wall creating a community of ^interest be- tween adjoining proprietors is in no sense to be deemed a legal incumbrance upon the property, and a party purchasing a hotel and premises at public auction, without being informed that part of the walls of the hotel adjoining other buildings are party walls, can not, for that cause, refuse to complete the purchase. As between adjoining proprietors maintaining party walls, their mutual easement in walls is a benefit and not a burden to each of them. It is a valuable appurtenant which passes with the title of the property (Hendricks t. Stark, 37 ISf. Y. 106). ProTlsioiis of the building law upon the subject of party walls. The statute relating to buildings in the city of New York, passed April 20, 1871 (chap. 625, as amended, 152 LANDLORD AND TENANT. ' May 22, 1874, chap. 547), contains among others the fol- lowing provisions in reference to buildings in said city. Section 3, among other things provides that, "Whenever there shall be any excavation, either of earth or rock, hereafter, commenced upon any lot or piece of land in the city of New York, and there shall be any party or other wall wholly or partly on adjoining land and standing upon or near the boundary line of said lot, if the person or persons whose duty it shall be, under exist- ing laws, to preserve and protect said wall from injury shall neglect or fail so to do, after having had a notice of twenty-four hours from the department of buildings so to do, the superintendent of buildings may enter upon the premises, and employ such labor and take such steps as in his judgment may be necessary to make the same safe and secure, or to prevent the same from becoming^unsafe or dangerous, at the expense of the person or persons owning said wall or building of which it a may be a part, and any person or persons doing the said work, or any part ^thereof, under and by direction of the said superintendent, may bring and maintain an action against the owner or owners, or any one of them, of the said wall or building of which it may be a part, for any work done or materials furnished in and about the said premises, in the same manner as if he had been employed to do the said work by the said owner or owners of the said premises." Section 5 provides that : "In all dwelling-houses that may hereafter be erected not more than fifty-five feet in height, the walls shall not be less than twelve inches thick, and if above fifty-five feet in height, and not more than eighty feet in height, the outside walls shall not be less than sixteen inches to the top of second story floor beams ; provided the same is twenty feet above the curb level, and if not. then to under side of the third story beams, and also provided that ])ortion of the wall that is twelve inches thick, shall not exceed forty feet above the said sixteen inch wall ; and in PAETT "WALLS. 153 every dwelling-house hereafter erected more than eighty feet in height, four inches shall be added to the thickness of the wall for every fifteen feet or part thereof that is added to the height of the building. All party walls in dwellings over fifty-five feet in height shall not be less than sixteen inches in thick- ness." Section 6 provides that: "In all buildings other than dwellings hereafter erected, the bearing walls shall not be less than twelve inches thick to the height of forty feet above the curb level ; if above forty feet in height, and not more than fifty -five feet in height, the bearing walls shall not be less than sixteen inches thick ; if above fifty -five feet, and not more than seventy feet in height, the bearing walls shall not be less than twenty inches thick, to the height of twenty feet above the curb level, or to the next tier of floor beams above, and not less than sixteen inches from thence to the height of fifty-five feet above the curb level or the next tier of floor beams, and not less than twelve inches thick from thence to the top ; and if above seventy feet and not more than eighty-five feet in height, the bear- ing walls shall not be less that twenty -four inches thick to the height of twelve feet above the curb level or the second story floor beams, and from thence to the height of sixty feet above the curb level, the said walls shall not be less than twenty inches thick, and from thence to the top not less than sixteen inches thick ; and if above the height of eighty -five feet, the bearing walls shall be increased four inches in thickness for every fifteen feet, or part thereof, that shall be added to the height of said wall above the eighty-five feet. In all buildings over twenty-five feet in width, and not having either brick partition walls or girders supported by columns running from front to rear, the walls shall be increased an additional four inches in thickness, to the same relative thickness in height as required under this section for every additional ten feet in width of said 30 154 LANDLOED AND TENANT. building, or any portion thereof. It is understood that the amount of materials specitied. may be used either in piers or buttresses, provided the outside walls between the same shall in no pase be less that twelve inches in thickness to the height 'of forty feet, and if over that height, then sixteen inches thick ; but in no case shall a party wall between the piers or buttresses of a build- ing be less than sixteen inches in thickness. In all buildings hereafter erected, situated on the street corner, the bearing wall thereof (that is, the wall on the street upon which the beams rest), shall be four inches thicker in all cases than is otherwise provided for in this act. All walls other than bearing walls may be four inches less in thickness than required, in the clauses and. pro- visions of this section above set forth, provided no wall is less than twelve inches in thickness." There are various other general provisions concerning buildings in the city of New Yorlc, and their mode of construction, and the char- acter of the materials to be used therein, and these statutes will be found in the laws of 1871, cli. 635, amended in 1874, by ch. 547, of the laws of that year, and reference "is thereunto made for such of said general provisions as are not hereinabove contained. Increasing the thickness of party and other walls. The statute contains the following provisions upon the subject : " § 35. It shall be lawful to increase the thickness of any partition wall or other wall between two adjoining buildings in the city of New York, erected, before the passage of the act of 14th April, eighteen hundred, and fifty-six, in relatiofi to buildings in said city, provided that such additions be properly and securely tied into the original wall by iron fastenings or slabs of stone, so as to make a firm wall of not less than sixteen inches in thickness ; and such wall when so altered shall be deemed and taken to be a sixteen-inch wall in like manner as if originally built of that thickness, anything ]PAET-5f WALtS. loS in the before-mentioned act to the contrary notwith- standing" (1857, ch. 225, § 1). The act above referred to is chap. 188, of Laws, 1856, entitled, "An act to provide against unsafe buildings in the city of New York." "§ 36. If any owner or part owner of any wall here- tofore erected between two adjoining buildings in the city of New York, shall refuse to give his written con- sent to the reconstruction thereof, by the entire substi- tution of a new wall of the thickness now required by law in buildings more than fifty feet in height, it shall be lawful to increase the thickness of such wall by ad- ditions thereto, to be firmly secured by sufficient and proper iron anchors, or slabs of stone, making together a wall of at least sixteen inches in thickness ; and such wall so strengthened and increased shall be deemed and taken to be a sixteen-inch wall, in like manner as if the same had been originally built of that thickness" (1857, ch. 225, § 2). Chap. 6, of the Laws of 1855, entitled, "An act respecting excava- tions in the cities of New York and Brooklyn," will be found at page 140, ante; and the above sections, 35 and 36, will be found in chap. 235 of the Laws of 1857, under the title of "An act in relation to party walls in the city of New York." See also 3 B. 8. 5th (Banks) ed.^page 1003. Diminishing thickness of party wall. The owner of land having a party wall is not per- mitted to pare oS" a portion of the wall upon his prem- ises with a view to the erection of a new wall entirely upon his own land, nor in any manner deal with the wall so as to diminish its sufficiency or strength (Phil- lips V. Bordman, 4 Allen, 147). Increasing height and depth of party wall. The height of the wall may be increased, and any changes made therein that the taste or convenience of either owner may dictate, so long as the same can be done without detriment to the strength of the wall^ or 166 LANDLOBD AND TENANT. to the property of the adjacent owner ; but the party- making the addition does it at his peril ; he stands as an insurer to the other of the safety of the work, and against injurious results therefrom ; and if injury does result he is liable for all the consequences (Brooks ». Curtis 50 N. T. 639 ; Eno «. Del Vecchio, 4 Duer, fiS ; Moody V. McClelland, 39 Ala. 45 ; Bertram v. Curtis, 31 Iowa, 46 ; McGrittigan v. Evans, 8 Pfiila. 264). Either owner may do what he can with the wall to serve his individual necessities ; as to lower it, sink it, or raise it (Eno «. Del Vecchio, 4 Duer, 53 ; and see Brooks V. Curtis, 50 N. T. 639), if he can do so with- out injury to the other. And an agreement for a party wall does not prohibit either owner from extending the building beyond it in front and in rear (Wolfe «. Frost, 4 Sandf. Gh. 72). Under a covenant, in an executory contract for the sale of a lot of land, by the vendor, to erect upon an adjoining lot, along the boundary line, a wall, and to grant to the purchaser the right to use such wall, in the erection of a house, specifying the particular manner in which it was to he used, it was held, that the pur- chaser did not acquire thereby a right to use such wall in any other way than that specified ; and that he was not entitled to prolong the limited course of his front wall across the boundary line of such two lots, so as to enter into the front wall of the vendor's building at the point or line where those walls meeting, adjoined the party wall (Fettretch v. Leamy, 9 Bosw. 510). Kepairiug party walls. Where two adjoining owners have erected a party wall at their joint expense, and have applied it to their joint benefit, each is botind to contribute ratably toward the expense of its necessary repair. But if the wall had become ruinous and fallen into decay, or is destroyed by fire or other cause, no liability attaches on the part PARTY WALLS. l67 of either owner to contribute toward the construction of a new wall, if he has no present use therefor, even though he subsequently make use of the wall by build- ing thereon (Sherred v. Cisco, 4 Sandf. 480 ; Glen v. Davis, 35 Md. 208 ; 6 Am. Bep. 389). But where the buildings upon the two lots are still standing, if the walls get out of repair, each owner is bound to contrib- ute to its repair, but this liability does not exist except where there is a real necessity for repairs, and never when the expense is incurred merely to suit the con- venience, or to serve the capricious ends of one of the owners, or when the adjoining owner has no further use for the wall ; nor when the wall has become so ru- inous as to serve no useful end ; but when repairs in the wall are rendered necessary, either party has a right to make them, upon reasonable notice to the other, using such care and skill in the prosecution of the work as circumstances may require. Taking down party wall. If the wall is intact and capable of yielding sup- port to one owner, it can not be taken down by the other, even though his building has been destroyed by fire, and every part thereof except this wall rendered utterly useless. The wall itself must have become un- safe or useless, or it can not be interfered with to the injury of the other (Brondage «. Warner, 2 Hill, 145 ; Eodgers v. Sinsheimer, 50 iV. ¥. 646 ; Evans v. Jayne, 23 Penn. St. 34 ; Partridge v. Gilbert, 15 If. T. 601) ; but if the walls fall into a state of decay so that it be- comes necessary to take them down and rebuild them, either party has the right to do so, upon reasonable notice to the other, using such care and skill in the prosecution of the work as the circumstancs may re- quire (Partridge «. Gilbert, supra; Dowling v. Hen- nings, 20 Md. 179 ; Richards v. Rose, 9 Bxc/tq. 218 ; Oranshaw v. Sumner, 56 Mo. 517). 158 tAlTBLOllD AKD TENANT. In an action on the case by A, the owner of a leased house, against B, the owner of the adjoining house, for an injury for the pulling down of B's house, it ap- peared that the two houses were very old and decayed, and the party wall between them weak and defective. For some time pieces of timber, called struts, had been carried across H lane, on the east side of which B's house stood, to the opposite house on the west side of the lane. A' s house adjoined B's eastward; and the struts, in sustaining B' s, also supported A's. When B' s house was taken down, the struts were necessarily removed, and no others substituted, nor were any up- right shores placed in A's house to sustain the floors and roof, either of which measures would have answered the desired end. A's house consequently parted from the house adjoining it on the east, became unsafe to inhabit, partly fell or was taken down and rebuilt. B gave no notice that he was going to pull down the house, but both parties knew the defective state of the houses. There had been previous discussions between "them, especially with regard to the party wall, and the statutory notice of rebuilding it had been given, but within the time fixed B's house was taken down. The taking down was done by day, and A's tenant must have known of it. Held, in the absence of evidence of any right to have his house supported by the defend- ants, he was bound in law to protect himself by the use of shores within, and that he could not compldin that the defendant had neglected to do it (Peyton ». The Mayor, 9 Barn. & Ores. 725). In Potter v. White (6 Bosw. 644), it was held that one of the owners of a party wall, used as such with- out written agreement for twenty years, can not re- move it without the consent of the other, so long at it remains sound and suitable for the purposes of its erection. In Eno V. Del Vecchio (6 Duer, 17), it was held that an improper interference with a party wall by one PAETY WALLS. 159 owner, which injures the other building, is a trespass ; and either the tenant or the reversioner may maintain an action therefor, against the owner who employs a contractor to do the work by which the injury is done, as well as against the contractor ; and that it is not necessary to prove any negligence. In Partridge v. Gilbert (15 N. Y. 601, alfg 3 Duer, 185), it was held that when one building becomes so delapidated as to be unsafe and unfit for occupation, and. the removal of the front and rear walls, with the floors and beams, would occasion the destruction of the entire wall, the owner of such building may, on reasonable notice to the adjoining tenant, lawfully take down the whole wall ; and if he occupy no unnecessary time in completing the work, and use proper care and skill in its execution, he will not be responsible to the adjoining tenant for damages resulting from exposure to weather, from loss of business, or inability to let the upper lofts. In Keteltas v. Penfold (4 E. D. 8. 132), it was held, that under a contract that a "division wall" should be taken down, and "in the place thereof" a party wall put up "on the division line," "to rest equally on the ground of each" party ; that the new wall was to be erected on the division line occupied by the for- mer wall, and that A's devisees, sued upon his cove- nant, could not defend on the ground that the line was not the true boundary. Rebuilding party wall. In Partridge v. Gilbert (15 JV. T. 601), it was held that the easement in a party wall ceases when the walls falls into such a ruinous condition as to serve no useful purpose except by being replaced by a new one, and that neither owner has the right at common law, against the remonstrance of the other, to rebuild the wall and claim contribution therefor (see also Sherred v. Cisco, 4 Sandf. 480). The easement ends with the destruc- 160 LAKDLOED AND TENANT. tion of that in which it existed, and in the absence of a binding covenant between the parties or running with the land, neither party can be compelled to re- build it, or to contribute toward the expense thereof, if it is rebuilt by the other (Glen v. Davis, 35 Md. 308 ; 6 Am. Bep. 389 ; Pentz v. Brown, 5 JV. Y. Leg. Obs. 19 ; Webster v. Stevens, 5 Duer, 558 ; Daniel v. North, 11 Bast, 372 ; Partridge v. Gilbert, 15 N. T. 601). When a party wall between two houses has been rebuilt, all the servitudes belonging to the former one revive and continue in respect to the new wall or new house. OTHER EASEMENTS. 161 CHAPTER XYIII. OTHEE EASEMENTS. I. Definition of Easement. II. Rights of Way. III. Rights under covenant as to character of adjoining buildings. Definition of Easement. An easement may be defined to be a privilege that one neighbor hath of another by grant, charter or pre- scription. It contemplates two distinct tenements — the dominant, to which the right belongs, and the servient, upon which the obligation rests ; although it is not nec- essary that the dominant and servient estates should be contiguous. II. Rights of way. One of the most common class of easements or ser- vitudes known to the law is that of ways, or the right of one man to pass over the land of another in some par- ticular line. "A way of necessity" over the land of another is always of strict necessity, and this necessity must not be created by the party claiming the right of way. It never exists where a man can get to his property through his own land. That the way through his own land is too steep or too narrow, does not alter the case. It is only where there is no way through his own land that the ai 162 LANDLORD AND TENANT. right of way over land of another can exist. That a person claiming a way of necessity has already one way is a good plea, and bars the plaintiff. A way of nec- essity, ex vi termini, imports a right of passage through the lands of another, as being indispensable. Nor can one claim a way of necessity because of its su- perior convenience over another way which he has ; or as stated by another class of cases, a right of way ex- ists only where the person claiming it has no other means of passing from his estate into the public street or road. Of rights of way, there are two kinds, public and private. Public rights of way are rights of passage which every individual is entitled to enjoy, for the purpose of passing from one locality to another ; while private rights of way are rights which belong to a par- ticular individual only, or to a body of individuals, either for the purpose of passage generally, or for the purpose oi. passing from a particular tenement of which they are possessed. III. Rights under covenant as to character of adjoining 'buildings. It is well established, that under a covenant in a deed, providing against certain constructions, which may be noxious or offensive to neighboring inhab- itants, those who have suffered from a breach of the covenant, though not parties to the deed, will be afforded relief in equity. As the covenant is intended for their benefit, it will be deemed to have given an easement in the land, and a court of equity will inter- pose to give them relief, by injunction against its in- fraction (Gribert v. Peteler, 38 JS. J. 165). A covenant in a deed of land, not to erect a building on a common or public square owned by the grantor in front of the OTHEli EASEMENi^S. 168 premises conveyed, is a covenant running with the land, and passes to a subsequent grantee of the prem- ises without any special assignment of the covenant (Trustees, &c. v Cowen, 4 Paige, 510), and where the owner of a block of ground in the city of New York divided it into lots, and sold the lots from time to time, to different individuals, and the conveyances of the lots contained mutual covenants between the grantor and grantees, respectively, against the erection of any livery stable, slaughter-house, glue factory, &c., upon any part of the lots conveyed, or any other manufac- tory, trade, or business, which might be any wise offensive to the neighboring inhabitants, it was held, that the covenants in the deeds of the different lots were for the mutual benefit and protection of the pur- chasers of lots in the block. And although a previous purchaser from the owner of the block could not sue at law, upon the covenant in the deed to a subsequent purchaser, the Court of Chancery might protect him by injunction against the carrying out of any noxious business or trade upon tlie lot of such subsequent purchaser (Barrow ». Richard, 8 Paige. 351). The owners of the lots on the north side of St. Mark's Place, in the city of New York, agreed by parol that the houses to be erected thereon should be set back eight feet from the line of the street, so as to have a court- yard of that depth and of the width of the lot in front of each house. The agreement was carried into effect by the erection of a row of dwelling-houses on a line with each other and having each a courtyard in front, and it was held, that the agreement thus executed became binding on the parties and their grantees, so as to ren- der it the duty of a court of equity to restrain its viola- tion. And that each house thus erected became a servient tenement with respect to the others, to the ex- tent of the space in front, and to that extent each acquired an easement, that unless by the consent of all the owners could not be disturbed, and that an injunc- 164 LANDLOBD AND TENANT. tion restraining the defendants, who by mesne convey- ances had become the owners of the lots, from building on the space so agreed to be left open, was properly granted (Talmadge v. East River Bank, 2 Duer, 614 ; S. C. on app. 36 iV. T. 105 ; S. C. sub. tit. Maxwell v. East Eiver Bank, 3 Bosw. 124 ; and see Perkins v. Coddington, 4 Mobt. 647) ; and a covenant against nuis- ances contained in a deed under which a person claims title constitutes an incumbrance within the meaning of that term, as settled by the authorities (Roberts «. Levy, 3 Abb. N. S. 311 ; Gibert v. Peteler, 38 JV. Y. 165 ; In re Whitlock, 10 Abb. 316 ; Trustees of Water- town -0. Cowell, 4 Paige, 510 ; 4 Robt. 647 ; 5 Oowen, 143 ; 21 Wend. 120 ; 8 Paige, 351 ; 12 How. Pr. 551 ; 26 N. Y. 105 ; 23 Barb. 153). LIABILITY TO THIED PEKSONS. 165 CHAPTER XIX. LIABILITY TO THIRD PERSONS. I. Of tenant, n. Of landlord. Of tenant. The tenant, as occupier, is 2?rma/ac?'e liable to the public for injuries to third persons, caused by want of repairs, whatever private agreement there may be be- tween him and the landlord ; but if he can show that the landlord is to repair, the landlord is liable for neg- glect to repair (The Mayor «. Corlies, 2 Sandf. p. 303). In Cheetham b. Hampson (4 T. B. 318), an action on the case was brought for not repairing fences, whereby the plaintiff was injured, and it was held that the action could only be maintained against the occupier, and not against the owner of the fee, who was not in posses- sion ; and the same rule was laid down in 3 Ld. Ray. 804. The following case shows the extent to which the principle that the tenant or occupier is alone liable, has been carried : "Where a complaint for damages in consequence of injuries received by the plaintiff in falling down, by the giving way of a back stoop and stairs, on a certain building owned by the defendant ; alleged, that the defendant, as owner, was bound to keep the premises, and especially the said stoop and stairs, in good condition and repair, and had neglected and refused to do so ; and in consequence of such neg- lect and refusal, the plaintiff had sustained the inju- 166 lANDLOED AND TENANT. ries complained of. Held, bad oa demurrer, because it appeared from the complaint that the premises were occupied, not by the defendant, but by third persons, and consequently it was upon the tenants, and not upon the defendant, as owner and landlord, that the duty of keeping them in repair presumptively rested, and that the averment that the defendant was bound to repair, without stating any facts from which the obligation re- sulted, was plainly insufficient, it being a conclusion of law" (Corey V. Mann, 14 How. 163). It has been said that a landlord who lets a house in a dangerous state is not liable to the tenants, cus- tomers, or guests for accidents happening during the term (per Eakle, C. J., in Kobins v. Jones, 15 G. B. N. 8. at p. 240) ; but it has since been held, that a landlord who lets or relets premises in such a state as to constitute a nuisance, is responsible for such nui- sance, notwithstanding the tenancy ; and that the con- tinuance of a tenancy from year to year is equivalent to a reletting (Gaudy v. Jubber, 5 B. &S.78; 33 L. J. Q. B. 151 ; but see 6 B. (& S. 485 ; 4 0. B. 783 ; 16 L. J. 0. P. 278) ; and owners of real property who let it with the defects complained of, are liable for injuries sustained by third persons by reason thereof, notwith- standing the possession was in their tenants at the time of the injury (Moody v. The Mayor, 43 Barb. 282 ; S. C. 84 How. Pr. 288) ; and if an owner so constructs and adapts a building, that in its ordinary use it would be injurious and offensive to plaintiff, and cast unwhole- some odors into his house, he is liable for the nuisance thus caused. But if it proved a nuisance by reason of a special, unusual circumstance, he is not liable (Pick- ard w. Collins, 23 Barh. 444) ; where a tenant having a long lease of premises, so uses them as to create a nui- sance, the landlord, having no power or right of inter- ference, incurs no responsibility (Judgment of Comp- TON, J., in Gandy ». Jubber, ^ B.& 8., p. 78; 88 L. J. Q. B. p. 154). LIABILITY TO THIRD PBRSOH"S. 167 An owner of the freehold is liable for injuries re- sulting from the condition of the freehold itself, caused by his own negligence, whether in his actual occupa- tion or not ; and if he have let to another, with cove- nant to repair, he has been held liable to any third person for injuries resulting from his neglect to repair. If he build the upper part of his house so negligently that it fall, he is liable for his negligence to whomso- ever may suffer thereby ; and if he let a part of a building to one, and by reason of his construction of other portions of the same building, the tenant sustain an injury, the owner is liable (Eakin i). Brown, 1 £J. D. S. 43). Either the landlord or the tenant, or both, are liable to indictment by the public for maintaining a ruinous house in a public place, or a house in a con- dition that endangers the safety of the public. But if the defects are due to the original faulty construction of the house, the landlord is alone liable. So, too, for injuries arising to adjoining owners therefrom (Todd V. Flight, 9 0. B. [iV. -S\] 377 ; Rex «. Pedly, 1 Ad. & Bl. 822 ; Bellows «. Sackett, 15 Barh. 96). Vhere the houses are in good repair when the tenant goes into possession, and become ruinous while in the tenant's possession, the tenant alone is liable for the consequen- ces, public or private (Payne w. Rodgers, 2 H. & Bl. 349 ; Leslie xi. Pound, 4 Taunt. 648 ; Bobbins v. Jones, 33 2,. J. C. P.l; Bishop v. Trustees, 1 Ell. & Ell. 697 ; Chauntler v. Robinson, 4 Exch. 163). In cases of negligence consisting of a mere omis- sion of duty, where no affirmative fault, misfeasance or affirmative wrong was committed by the defendant, or is imputed to him, it is essential to sustain a re- covery, to establish that the defendant owed some clear, specific legal duty to the party injured which was violated, and as between landlord and tenant, the law is well settled, that when there is no fraud or false representations, and in the absence of an express warranty or covenant to repair, there is no 168 LANDLORD AND TEWAKT. implied covenant that the demised premises are suit- able or fit for occupation, or for the particular use which the tenant intends to make of them, or that they are in a safe condition for use. The principle of caveat emptor applies to all contracts for the letting of prop- perty, real, personal, or mixed, as much as to contracts of sale, with one or two recognized exceptions; and when there is no covenant on the part of the lessor to repair the buildings upon the demised premises, he is not liable to respond in damages to a servant of the tenant, for injuries sustained by reason of a want of repairs, and when a lessor is under no obligation to repair the premises, and their condition is equally as well known to the tenant as to him, there is no basis for an action against him for negligence, by the tenant or any servant of his, or person standing in his place, arising from the fact that the premises were out of repair (O'Brien v. Capwell, 59 Barb. 497). In respect to the necessity of averring that the defend- ant owed some specific legal duty to the party injured which has been violated, before any liability attaches to the defendant, the case of Grillis v. The Pennsylvania Railroad Company (8 Am. Law. Beg. JV. S. 729), fur- nishes a striking illustration. The plaintiif in that ac- tion alleged that the defendants, being a corporation for conveying freight and passengers, and having the sole control of the passenger depots, platforms, &c., along the road for the mutual accommodation of them- selves and the public, bnilt a platform at the Johns- town Station, bridging a chasm over the bed of an abandoned canal, on whioti large numbers of people were in the habit of congregating, ' ' as matter of general custom ;" and that it was the duty of the defendant to construct the pla.tform so as to make it safe and keep it in good repair ; that it had come to the knowledge of the defendants that the timbers of the platform were rotten, and " insufficient to support a large multitude of people," but that they, notwithstanding, insufficiently LIABILITY TO THIRD PEESQi^fS. 169 repaired it ; that on the 14th of September, 1866, " on the occasion of the visit of Andrew Johnson, President, &c., and suite, to Johnstown." The defendants fur- nished a special train, and made a special time sched- ule for their accommodation, by which the train was required to stop a longer time than usual for passen- ger trains at Johnstown, &c., the company notifying the people at Johnstown and vicinity of the time of arrival and departure of the train at Johnstown, the stoppage being made by the direction of the defendants, to give the people an opportunity of receiving Mr. Johnson and hearing him; that it had been publicly made known that wherever Mr. Johnson and his company had stopped large numbers of people congregated, and thereupon it became the duty of the defendants "to have the plat- form aforesaid made sufficiently strong to bear and up- hold as many people as might congregate thereon on the occasion aforesaid ; " that the defendants knowing the insecure condition of the platform, did not use due diligence to have it made secure, but permitted and in- vited "a large multitude of people to congregate" thereon without notifying them or the plaintiff of its in- secure condition ; that the platform broke and precipi- tated the multitude with the plaintiff into the. 333). In an action against a defendant, who was landlord, owner, and one of the occupants of a tenement house for damages, for inju- ries received by one of the tenant' s visitors, it appeared that there was a stairway leading from the first floor to the cellar, through which the occupants of the house descended to the various portions of the cellar assigned to them, such stairway being immediately behind the stairway leading to the upper part of the building, and the open space at its entrance being provided with a trap-door, which, when shut, covered it, jutting out about two inches into the hallway, and rendering the aperture safe ; but there were no other safeguards about its entrance, and a visitor to one of the occupants, in attempting to go upstairs, placed one foot on the as- cending stairway, and the other in the space forming the entrance to the descending stairway, the same being open by reason of the trap-door not being shut, and thereby fell and sustained injuries ; and it was held that (1) the defendant being both landlord and owner, and also an occupant, was not liable, it not appearing either that there was any defect or negligence in the construction of the stairway and its covering, or that when properly uBed it did not suffice to protect persons using the hallway, and was not all that reasonable care and prudence could suggest ; or that defendant 172 ' LANDLORD AND TENANT. left the trap-door open, or caused or allowed it to be left open ; and that (2) such landlord and owner is not bound to protect his tenants and their visitors from the consequences of their careless acts in the course of occu- pancy ; and that (3) the tenants are each liable for their respective negligence, and that in such case there is no presumption against any particular occupant (Kaiser v. Hirth, 36 W. Y. Superior Court, 345). When a party is engaged in erecting a house upon his own ground, he is not, nor are his workmen, bound to put up temporary partitions about stairways nor floors across beams, nor use other means for the protection of intruders who voluntarily enter the unfinished house and venture to walk across the beams or around its well- holes, and where the owner of lots upon the rear of which were buildings occupied by his tenants, opens a way which they use for their ingress and egress through an adjoining lot, while he is improving the front of the lots by putting up buildings ; their visitors have no such license, as visitors, that they can aver a right to pass through the unfinished buildings. In such case, when the buildings in front are enclosed and even alley-ways, which the tenants in the rear begin to use, are arranged along the walls ; an obstruction of such alley-way does not give either the tenants or their visitors a right to pass through th«3 house, and accord- ingly, where the father of two of the tenants, wishing to visit his daughters in the night season, and finding the alleys along the new houses obstructed, attempted to grope his way thoragh the basement hall and fell down into the cellar, it was held, that he had acted at his peril, and could maintain for the injury received no action founded upon the negligence of the mechanics employed in the erection (Eoulston v. Clark, 8 E. D. S. mi). Openings on sidewalk. Owners having coal-holes and such like openings LIABILITY TO THIRD PERSONS. 173 upon the sidewalk in front of their premises, are liable to persons injured thereby, whether such owners be in possession or not, upon the ground that they are nuis- ances upon the public highway (see Anderson v. Dickie, 1 BoM. 241 ; Congreve v. Smith, 18 iV. T. 79 ; Same v. Mogan, Id. 84 ; Davenport v. Rackraan, 37 Id. 568 ; Mullen V. St. John, 57 Id. 567). As to landlord's lia- bility for injuries received from open hatchway, see Totten V. Phipps, 52 i\^. Y. 354 ; Southcote v. Stanley, 1 Hurl. & Norm. 247 ; Grodley «. Hagerty, 20 Penn. St. 387 ; STierman & Bedf. on Neg. 508-9 ; Karl v. Millard, 3 Bosw. 591 ; Freer «. Cameron, 4 Rich. (S. 0.) L. Bep. 228 ; Carman d. Eastern Co. R. R. Co. 4 Hurl. & Norm. 781 ; Pickard n. Smith, 10 Qom. Bench (JST. S.) 470 ; and see ante, page 110, as to further liability. Liability of third person to landlord. A landlord may maintain case against a third per- son for so disturbing his tenant's possession, with wrongful and malicious intent to injure the landlord, that the tenant was obliged to abandon possession, whereby the landlord lost his rent which he would otherwise have received, and the premises sustained injury and delapidation, by reason of remaining unoc- cupied during the remainder of the year (Aldridge v. Stuyvesant, 1 Hall, 210). 174 lANDtOED AND TENAlirT. CHAPTEE XX. THE VAEIOUS STATTJTOET PEOVISIONS EELATIWa TO SUMMAET PROCEEDINGS TO EECOVEE THE POS- SESSION OP LAND IN CEETAIN CASES. These provisions will be found in 3 Edmonds^ B. S., p. 533. ' Where amendments have been made they have been specially referred to. The original sections as they appear in the statute have been re- tained. R S., Aeticle Fiest, Title X. of Chap. 8, Part 3. Of forcible entries and detainers. Sec. 1. Entries on land to be paaceable, &c. 2. Complaint of forcible entry, &c. 3. To be in vp^riting ; affidavit therewith; precept for jury. 4. Notice of precept, &c., to be served on defendant. 5. Jury to be sworn; to inquire, &c., and return inquisition. 6. Traverse of inquisition, when to stay proceedings. 7. When and on what terms landlord may traverse inquisition. 8. Jury to be summoned to try traverse. 9. Jury to be sworn ; proceedings before them, &c. 10. When jury may be discharged, and new one summoned. 11. Matters to be shown on trial by respective parties. 13. Judgment, if defendant be found guilty. 13. Process for restitution and collection of costs. 14. To issue if there be no traverse within twenty-four hours. 15. Sheriffs, &c., to execute process. 16. Notice to jurors ; fine for not attending ; how collected, &c. 17. Subpoena for witnesses ; penalty for their neglect, &c. 1 8. Certain officers to have jurisdiction. 19. Certiorari to remove proceedings. 30. Bond to be given before allowance of certiorari. 31. Bond, how returned; proceedings of supreme court. 33. When restitution to be awarded and bond prosecuted. 33, Criminal courts may award restitution in certain cases. Entries ou land to be peaceable. § 1. No entry shall be made into any lands or other possessions, but in cases where entry is given by law ; and in such case, only in a peaceable manner, not with strong hand, nor with multitude of people. FOEOIBLE ENTKIES AND DETAINEES. 175 For the law and practice in proceedings of forcible entry and detainer, see Chapter XXII. Complaint of forcible entry, &c. § 2. Where any such forcible entry shall be made, or where the entry shall be made in a peaceable man- ner, and the possession shall be held by force, the per- son so forcibly put out, or so forcibly holden out of possession, and the guardian of any such person being a minor, may be restored to such possession, by making a complaint to a judge of the county courts of the same county, and by such proceedings as are hereinafter di- rected (see § 18, at page 180, post). To be in writing j affidavit therewith j precept for juiy. § 3. Such complaint shall be in writing, and shall be accompanied by an affidavit of such forcible entry or forcible holding out, and that the complainant has an estate of freehold or for term of years in the prem- ises, then subsisting, or some other right to the posses- sion thereof, stating the same ; and the judge shall thereupon issue a precept to the sheriff or any consta- ble of the county, commanding him to cause twenty- four inhabitants of the same county, duly qualified to serve as jurors, to come before such judge, at some time not less than two days thereafter, to inquire of such for- cible entry, or such forcible holding. Notice of precept, &c., to be served on defendant. § 4. Such judge shall immediately cause a notice, in writing, of the issuing of such precept, and of the time and place of the return thereof, to be served upon the party against whom such complaint is made, by deliv- ering the same to such person ; or if he can not be found, by delivering such notice to some person of proper age on the premises ; or if there be no such per- son, by affixing the same on the front door of the house, 176 LANDLORD AND TENANT. if there be one ; or if there be none, on some other pub- lic and suitable place on the premises. Jury to be sworn 5 to examine, &c., and return inquisition. § 5. At the day and place appointed for the return of the said precept, the judge shall administer an oath to the persons returned summoned, who shall appear, not being less than thirteen and not more than twenty- three, well and truly to inquire into the matters com- plained of, and a true inquisition thereof to make. And the jury so sworn, shall proceed to make inquiry into the forcible entry or the forcible holding complained of, and may examine witnesses on oath to be adminis- tered by such judge ; and shall make and sign their inquisition before the said judge, and deliver the same to him. Traverse of inquisition ; when to stay proceedings. § 6. If by such inquisition, it shall be found that forcible entry, as aforesaid, was made, or that the en- try being peaceable, the possession was forcibly kept, as aforesaid, the party complained against may traverse such inquisition, in writing, denying such forcible en- try or forcible holding out, or alleging that he or his an- cestors or those whose estate he has in such lands, have been in quiet possession thereof for the space of three whole years next before such inquisition found, and that his interest therein is not ended or determined ; and if the said traverser shall pay to such judge the fees of summoning a jury to try such traverse, and the jurors' and judge's fees on such trial, such traverse shall stay all further proceedings on such complaint and inquisition, until the same be tried. Wlien and on what terms landlord may traverse inquisition. § 7. If any person shall make affidavit before such judge, that the party complained against is the tenant FORCIBLE ENTEIES AND DETAINEES. 177 of such person, under a valid and then subsisting de- mise, he shall be permitted on payment of the fees specified in the last section, to traverse the said inquisi- tion as landlord, in the same manner as is allowed to the party complained of, either with such party or without him. Jiiryito be summoned to try trarerse. § 8. Upon such traverse being made, either by the party complained against, or by his landlord, the judge shall issue a precept to the sheriff or any constable of the county, commanding him to sammon twelve quali- fied jurors to come before such judge, at the place therein to be specified, at a time not less than four, nor more than eight days thereafter, to try the same traverse. Jury to be sworn j proceedings before them, &c. § 9. The jurors shall be summoned, returned, and impannelled, in the same manner as provided by law, in civil actions before justices of the peace, and shall be sworn by such judge, well and truly to hear, try and determine the said traverse ; they shall be kept together by such judge, and shall hear and examine any com- petent witnesses who may be offered, on oath, to be ad- ministered by such judge ; and after hearing the alle- gations and proofs of the parties, the jury shall be kept together until they agree on a verdict, by an officer, who shall be sworn, as is usual on trials in courts of record. When jury may be discharg'ed and new one summoned. § 10. If the jnry can not agree, after being kept to- gether for such time as such judge shall deem reason- able, he may discharge them, and issue a precept for a new jury ; and the same proceedings shall be had in respect to such new jury. 23 178 LANDLORD AND TENANT. Matters to be shown on trial by respectire parties. § 11. On the trial of such traverse, the complainant shall only be required to show, in addition to the forci- ble entry or detainer complained of, that he was peace- ably in actual possession at the time of a forcible entry, or was in the constructive possession of the premises at the time of a forcible holding out ; and the traverser may show, in his defense, that he or his ancestor, or those whose interest in such premises he claims, have been in quiet possession thereof for the space of three whole years together, next before the said inquisition found, and that his interest therein is not then ended or determined ; and such showing shall be a bar to the prosecution. Judgment if defendant be found gnilty . § 12. The verdict of such jurj shall be received and recorded by the said judge, and if the defendant is thereby found guilty, the said judge shall thereupon award restitution of the premises so forcibly entered or forcibly held out, and shall assess the costs and ex- penses of the proceedings. Process for restitution and collection of costs. § 13. He shall thereupon issue his precept, reciting the proceedings before him, and commanding the sher- iflf of the county, or any constable thereof, to cause the complainant to be restored and put into full possession of the said premises, according as he was seized or pos- sessed thereof before such entry ; and shall also, in the same precept, or in separate execution, direct the costs and expenses so assessed, to be levied and collected of the defendant, in the same manner as costs are or may be collected on judgments before justices of the peace, in personal actions. FORCIBLE ENTEIES AND DETAIKEES. 179 To issne if there be no traverse within twenty-four hours. § 14. If no such, traverse shall be made, as authorized in the preceding sections of this title, in the manner therein specified, within twenty-four hours after the in- quisition found, the judge shall, in like manner, award restitution of the premises, and assess the costs and ex- penses of the proceedings ; and shall issue his precept, in the same manner, to cause restitution, and for the collection of the costs. SherijGTs, &c., to execute process. § 15. Sheriffs and constables, to whom any process issued by a judge, as herein authorized, shall be di- rected and delivered, shall execute the same, and if' need be, shall command and take the power of the county for that purpose. Notice to jurors ; fine for not attending, how collected, &c. § 16. Twenty -four hours' personal notice to any juror to attend upon any precept issued as aforesaid, shall be deemed sufficient service, and any person so summoned, who shall neglect to attend and serve as such juror, without reasonable excuse, to be allowed by the judge issuing such precept, shall be subject to the same fine, to be prosecuted for, collected and applied to the same use, as provided by law in respect to jurors injustices' courts. Spbpoenas for witnesses ; penalty for their neglect, &c. § 17. The judge before whom such complaint shall be made, may, at the request of either party, issue his subpoena requiring any person to appear and testify before him, or before the jury of inquiry, or before the petit jury, touching the matters hereinbefore directed, to. 180 LAKDLOED AND TENANT. be heard by them. And any person served with such subpoena, who, without reasonable cause, shall neglect to appear, or appearing, shall refuse to answer upon oath, touching the matters aforesaid, shall be subject to the proceedings and penalties prescribed by law in similar cases in justices' courts. Certain officers to hare jurisdiction. § 18. Every justice of the Supreme Court, and every mayor, recorder and alderman of any city, any special justice, any justice of the Marine Court, and any justice of the Justices' Court of the city of New York, shall have the like powers and authority, respect- ing forcible entries or forcible detainers, in their re- spective cities or counties, as are above given-to judges of the county courts. Certiorari to remoTe proceedings. § 19. No proceeding for the restitution of any pre- mises forcibly entered or forcibly detained, had accord- ing to the foregoing provisions, shall be removed by any certiorari, unless the same be allowed by a justice of the Supreme Court. Bond to be given before allowance of certiorari. § 20. No such writ of certiorari shall be allowed by such officer, unless the defendant prosecuting such writ, with two sufficient sureties to be approved by such officer, or in case of the absence of such defendant, three Bufficient sureties, to be approved as aforesaid, shall become bound to the complainant, in such penal sum as such officer shall direct, not less than one hundred dollars, conditioned that such patty will appear at the return of the said certiorari, answer to the inquisition found, abide such order and judgment as the Supreme Court shall make in the premises, and pay all costs that FORCIBLE ENTRIES AND DETAINERS. 181 shall be awarded against such defendant. Such bond shall be delivered to the j udge to whoni such certiorari shall be directed, and until the same be so delivered, such certiorari shall be of no efiEect. Bond, how returned ; proceeding of Supreme Conrt. § 21. The judge shall annex and file such bond, with his return to such writ, and the Supreme Court shall proceed therein, and cause the defendant to trav- erse the inquisition, if no traverse has been had, and shall direct a trial. When restitution to be awarded and bond prosecuted. § 22. If the defendant shall omit to traverse such inquisition, within such time as the court, by rule, shall direct, restitution shall be awarded by the court, with costs. And if, upon the trial of such traverse, the de- fendant be found guilty, the Supreme Court shall also award restitution, with costs ; and in either case, the court may authorize the complainant to prosecute the bond given, on the allowance of the writ of certiorari. Criminal Courts may award restitution in certain cases. § 23. Upon the conviction of a defendant upon any indictment for forcible entry or forcible detainer, found in any court of General Sessions of the Peace, or in any court of Oyer and Terminer, such court may award restitution, in the same manner as a judge upon a ver- dict being rendered before him, as herein provided. 182 LAITDLOED AND TENANT. CHAPTER XXI. THE VARIOUS STATUTORY PROVISIONS RELATING TO SUMMARY PROCEEDINGS TO RECOVER THE POSSES- SION OF LAND IN CERTAIN CASES — Continued. R. S., Article Second, Title X. of Chap. 8, Part 3. Siimmary proceedings to recover the possession of land in other cases. [These proceedings •will be found in 2 Bdm. S. S. p. 537. The orig- inal sections as they appear in the statute have been retained, and where amendments have been made they liave been specially noted.] Sec. 34. When justice to view deserted premises and give notice to tenant. 35. When landlord to be put in possession ; effect thereof. 36. Appeal by tenant, how and when made ; return by justice. 37. Power of county court ; to award restitution and costs, &c. 38. Cases in which certain tenants may be removed. 39. Affidavit of facts to be made. 30. Summons to tenant when to be issued ; its contents. 31. Proof required in certain cases before granting summons. 33. Summons, how to be served. 33. If no cause shown, warrant of possession to issue. 34. Tenant, &c., may by affidavit deny facts alleged. 35. Proceedings to form jury to try facts controverted. 36. Jury, how drawn and sworn. 37 & 38. How kept; when discharged, and new one formed. 39 & 40. When warrant of possession to issue ; how executed. 41. When adjournment may be had ; for what time. 43. Witnesses, how compelled to attend and testify. 43. Agreement, &c., between parties annulled by warrant. 44. How warrant in case of rent may be stayed. 45. How stayed where tenant has taken benefit of act. 46. Also when premises have been sold under execution. 47. Proceedings may be removed by certiorari; but not stayed. 48. When Supreme Court to award restitution and costs. 49. Costs, by whom paid ; damages, when to be recovered. 50. Rights of landlords and tenants not to be affected. 51. Judgment in proceedings before a justice ; costs. 53. The proceedings may be removed to county court by appeal. 53. Appeal not to be allowed unless security be given. 54. Bights of lessees and mortagees to redeem. BUMMAET PEOCEEDINGS. 183 When justice to tIcw deserted premises. § 24. If any tenant being in arrear for rent, shall desert the demised premises, and leave the same unoc- cupied and uncultivated, without any goods thereon subject to distress to satisfy the arrears of rent, any jus- tice of the peace of the county 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 a conspicuous part of the premises, requiring the tenant to appear and pay the rent due, at some time in the said notice speciiied, not less than five, nor more than twenty days after the date thereof. When landlord to be put in possession; effect thereof. § 25. At the time specified in such notice, the jus- tice shall again view the premises ; if the tenant appear and deny that any rent is due to the landlord, all pro- ceedings 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 dis- tress 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. Appeal by tenant, how and when made. Return by Justice. § 26. 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 serving notice in writing thereof upon such justice, and by giving secu- * " County CO art " substituted for " Court of Common Pleas." See titles "Keview by appeal," post, and " Certiorari," post. 184 LANDLOED AND TENANT. rity to be approved by such justice, to pay to the land- lord all 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 gi^e notice to the landlord of such appeal. Power of County Court to award restitution, costs, &c. § 27. The county court * shall examine the proceed- ings, and hear the proofs and allegations of the parties, in a summary way ; and may order restitution to be made to such tenant, with costs to be paid by the land- lord ; or in case of affirming such proceedings may award costs against the tenant. Cases in which certain tenants may be remoyed. § 28. , 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, lands or tenements ; and the assigns, un- der-tenants, or legal representatives of such tenant or lessee may be removed from such premises, by any judge of the county courts of the county, or by any jus- tice 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 Justices' Courts of the city of New York, in the manner hereinafter prescribed, in the following cases : 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 per- mission of the landlord. 2. Where such person shall hold over without such permission as aforesaid, after any default in the pay- ment of rent, pursuant to the agreement under which * " County court" substituted for "Court of Common Pleas." summA-EY proceedings. 185 such premises are held, and a demand of such rent shall have been made, or three days' notice, in writing, requiring 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 manner prescribed for the service of the summons in the thirty-second section of this title. 3. Where the tenant or lessee of a term of three years, or less, shall have taken the benefit of any in- solvent act, or been discharged under any act for the re- lief of his person from imprisonment during such term. 4. Where any person shall hold over and continue in possession of any real estate which shall have been sold pursuant to the foreclosure of a mortgage thereon, or by virtue of an execution against such person, after a title under such sale shall have been prefected {as amended hy Laws 1874, chapter 208). 5. When any person shall hold over and continue in possession of any real estate occupied or held by him under an agreement with the owner to occupy and culti- vate the same upon shares or for a share of the crops, after the expiration of the time fixed in the agree- ment for such occupancy, without the permission of the other party to said agreement, his heirs, or assigns {as amended hy Laws 1874, chapter 471). For the Law and Practice on Summary Proceedings, see chap. 23. Jurisdiction of tlie district court justices. Prior to April 20, 1863, the jurisdiction of the justices of the dis- trict courts, in a territorial point of view extended over the whole city and was not limited to the district in which the parties resided or the premises were situated (Roach v. Cosine, 9 Wend. 327 ; Carlisle V. McCall, 1 Milt. 899). The proceeding was regarded as a proceeding before the magistrate out of court, and the act of 1857 (chap. 344 § 77), recognized the distinctive powers of these magistrates as officers out of court, by referring to these powers as peculiar to the justice, whereas the other judicial powers pertained generally to his court. The act of 1863 (chap. 189 p. 338), effected a great change in this re- spect. That act provides that " all proceedings had and process issued under the provisions of article two, title ten, chapter eight, part third of the Revised Statutes, in the city of New York, by any justice of the district courts thereof, shall be had and issued and be made 24 186 LANDLORD AND TENANT. returnable before a justice of the district court in the districts in which the premises of which possession is sought to be recovered are situated, and all such process shall be made returnable by the clerk of said district court, at the court thereof, and the affidavit upon which the process is issued shall be sworn or affirmed to before, and filed with the said clerk or his deputy. The provisions of this act were changed by an amendment to section 66 of the Code, passed in 1870 (chap. 741, §4), which amendment reads as follows: "The district courts of the city of New York shall have such jurisdiction as is provided by special stat- utes; and proceedings under article two, of title ten, of chapter eight, of part three, of the Revised Statutes, may be had before any justice of such courts, 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 affidavits." This last amendment is constitutional (58. iV. T. 333). Keeper of Poor-Honse, May be removed under summary proceedings (1863, ch. 398). Lessees under tax sales. This remedy extended to lessees of corporation of Brooklyn (1850, p. 285, § 40). Affidavit of facts to be made. § 29. 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, au- thorized 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. Sammons to tenant, when to be issued ; its contents. § 30. On receiving such affidavit, such officer shall issue his summons, describing the premises of which possession is claimed, and recLuiring any person in pos- session 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 where a person continues in StTMMAET PEOOEEDINaS. 187 possession of the demised premises, after the expiration of his term, without the permission of his landlord, the magistrate, 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 {as amended 1868, chap. 828). Proof required in certain cases before granting summons. § 31. Previous to issuing such summons in the case of a tenancy at will or at suflferenoe, the magistrate shall be satisfied, by afiidavit, that such tenancy has been terminated by giving notice in the manner pre- scribed 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 manner be satisfied that a de- mand of the possession of such premises has been made. Summons, how to be serred. § 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 resi- dence, 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 can not be found upon the demised premises, by leaving a copy thereof at the demised premises, with some person of mature age resi- ding thereon ; or, if there be no such person residing thereon, with some person of mature age connected 188 LAJvrCLOED AND TENAlTT. with the demised premises, by emploj^ment in any busi- ness 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 affix- ing such copy upon a conspicuous 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 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 re- turnable. The proof of the service of the summons shall state particularly the exact time, place and man- ner of service, including the name of the person on whom the service was made, if it can be ascertained. § 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 Eevised Statutes, to deliver such copy to the tenant to whom the same is directed, or, if such tenant can not be found, to his agent for the demised premises, without any avoidable delay ; and a copy of this section shall be written or printed upoa 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 deliv- ered, shall take the same to the magistrate by whom the summons is issued, at the time and place named therein, and inform him that the tenant can not be found. Every person who shall wilfully violate any of the pro- visions of this section shall bQ deemed guilty of a mis- demeanor, and upon conviction, shall be punished by imprisonment for not less than thirty days, nor more than one year {as amended hy Laws 1868, cTiap. 828). If no canse shown warrant of possession to issue. § 33. If at the time appointed in the said summons, no sufficient cause be shown to the contrary, and due * So in the original act. SUMMAEY PEOCEEDINGS. 189 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- ises, and to put the said applicant to such magistrate into the full possession thereof. Tenant, &c., may by affldarit deny the facts alleged. § 34. 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 controverted, shall be tried by the mag- istrate or by a jury, provided either party to such pro- ceeding shall at the time designated in such summons for showing cause, demand a jury, and at the time of such demand, pay to such magistrate the necessary costs and expenses of obtaining such jury {as amended 1857, chap. 684). Proceedings to form jury to try facts controverted. § 35. In order to form such jury, the magistrate with whom such affidavit shall be filed, shall nominate twelve reputable persons, q[ualified to serve as jurors in courts of record ; and shall issue his precept, directed to the sheriff, or one of the constables of the county, or any constable or marshal of the city or town, command- ing him to summon the persons 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, for the purpose of trying the said mat- ters in difference. 190 LANDLORD AND TENANT. Jury, how drawn and sworn. § 36. 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 be- tween the parties. Whenever a sufficient number of jurors duly drawn and summoned, do not appear, or can not be obtained to form a jury, 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 suflBcient, and return their names to the magistrate. 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 magistrate ; and for every neglect or refusal so to attend, shall be subject to fine by said magistrate in the same manner as is now pro- vided by law in the case of jurors in courts of record {as amended by Laws 1862, chapter 368). Jury, how kept. § 37. After hearing the allegations and proofs of the parties, the said jury shall be kept together until they agree on their verdict, by the sheriff or one of his dep- uties, or a constable, or by some proper person ap- pointed by the magistrate for that purpose, who shall be sworn to keep such jury as is usual in like cases of courts of record. Jury, when discharged and new one formed. § 38. If such jury can not 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 afore- said. STJMMAKY PROOEEDINGS. 191 When warrant of possession to issue. § 39. If the decision of the magistrate or the verdict of the jury, shall be in favor of the lessor or landlord, or the other person claiming the possession of the premises, the magistrate shall issue his warrant to the sheriff, or to any constable of the county, in which the premises are situated, commanding snch officer to put such landlord, lessor or other person, into possession, as hereinbefore directed {as amended by Laws 1857, chapter 684, § 3). Warrant, liow executed. § 40. The officer to whom such warrant for deliver- ing possession shall be directed and delivered, in either of the cases aforesaid, is hereby required to execute the same according to the tenor thereof. When adjournment may be had. For what time. § 41. Any magistrate before whom such application may be pending, may, upon the request of either party, adjourn the hearing of such application, for the pur- pose of enabling such party to procure his witnesses whenever it shall appear to be necessary ; but such ad- journment shall in no case exceed ten days. Witnesses, how compelled to attend and testify. § 43. Any magistrate before whom such application may be pending, may, at the request of either party, issue his subpoena, requiring any person to appear and testify before such magistrate, or before the jury, touching the matters herein directed 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. 192 LANDLORD AND TENANT. Agreement, &c., annulled by warrant. § 43. 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 ex- ists, and the relation of landlord and tenant between the parties, shall be deemed to be cancelled and an- nulled. How warrant in case of rent to be stayed. § 44. The issuing of such warrant of removal shall be stayed in tlie 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 person 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 war- rant of removal may at any time thereafter be issued. How stayed where the tenant has taken benefit of act. § 45. When the application to a magistrate is found- ed on the fact, that the tenant or lessee has taken the benefit of any insolvent act, or been discharged under any act for the relief of his person from imprisonment, the proceedings shall be stayed, if at any time before is- suing the warrant for removal, the tenant, or lessee, or his assignee shall pay the costs of such proceedings as have been had, and give such security to the person entitled to the rent, for the payment thereof, as it shall become due, as shall be satisfactory to the magis- trate. STJMMAET PE0CEEDI1TG8. 193 Also where the premises hare been sold under execution. § 46. When such application is founded upon an alleged sale, by execution, of the premises occupied by the defendant in such execution, the proceedings shall be stayed, if at any time before issuing the warrant of removal, the occupant shall, 1. Pay the costs of such proceedings : 2. File with the officer before whom the application is pending, an affidavit that he claims the possession of such premises by virtue of some title or right acquired after such premises were sold, or as guardian or trustee for any other : and, 3. Execute a bond to the applicant for such war- rant, in such penalty and with such sureties as the magistrate shall approve, conditioned to pay the costs which may be recovered against him in any ejectment that may be brought by such applicant within six months, for the recovery of the possession of such premises ; and to pay the value of the use and occupa- tion of such premises, from the date of such bond to the time such applicant shall obtain possession of the same by virtue of a recovery in such action of ejectment ; and also conditioned not to commit any waste or injury to such premises, during his occupation thereof. Proceedings may be removed by certiorari, but not stayed. § 47. The Supreme Court may award a certiorari for the purpose of examining any adjudication made, on any application hereby authorized ; but the pro- ceedings 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 cer- tiorari, shall be final, unless an appeal shall be al- lowed by the said court, at a general term, before the end o£ the term next after that at which the judgment was rendered. The appeal, upon any judgment ren- 25 194 LAIffDLOED AND TENANT. dered upon any such certiorari, may be brought on for argument aa a preferred cause, at any term of the Court of Appeals, by either party, upon fourteen days' notice. Nothing contained in this act shall prevent an ap- peal to the Court of Appeals, from any judgment here- tofore rendered by the Supreme Court upon a certiorari awarded pursuant to section forty-seven, title ten, chapter eight, part three of the Revised Statutes, pro- vided 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 {as amended by Laws 1868, chapter 828). When Supreme Court to award restitution, &c.; costs. § 48. Whenever any such proceedings brought be- fore the Supreme Court by certiorari, shall be reversed, or qnashed, 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. Costs, by wliom paid. Damages, by whom to be recoyered. § 49. 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 recov- ery 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. Bights of landlords and tenants not to be affected. § 60. Nothing contained in this title shall be con- SUMMAEY PEOCEEDlNGS. 195 strued to impair tlie rights of any landlord or lessor, or of any tenant, in any case not herein provided for. Judgments and proceedings before a justice ; costs. § 51. In case of proceedings before a justice of the peace under this article, the justice shall enter the find- ings of the jury, or in case no jury is called under the foregoing provisions, his final decision upon said ap- plication for such warrant, in his docket, and render judgment therefor, and include in such judgment, costs of such proceeding 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 man- ner, and in the warrant for delivery of possessions, or by execution issued by him, the justice shall direct the collection of such costs. As to the remedy by appeal from proceedings before justice of the peace, see chapter 36, post. Proceedings may be remored to county court by appeal. § 52. The proceedings before such justice may 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 aflBrmance or reversal of such judgment and be final. But in addition to the se- curity for such judgment as required by law in case of such appeal, in order to stay the issuing of such war- rant or execution, 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 subse- quent to the said application to such, justice. Appeal not to be allowed unless security be giren. § 63. No appeal shall under this act be allowed, unless such security for said judgment shall be given 196 LANDIOED AND TENANT. and approved by the judge, at the time of allowing such appeal, and served on the justice with the affidavit for appeal. Bights of lessees and mortgagees to redeem. § 54. In case of proceedings under the second subdi- vision of section twenty-eight, title ten, chapter eight of the third part of the Revised Statutes, if the unex- pired term of the lease under which the premises are held, exceeds five years at the time of issuing the war- rant 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 represetatives or attorney, or to the offi- cer 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 without any new lease thereof ac- cording to the terms of the original demise ; and any mortagee 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 performed by the first lessee, shall not be affected by such recovery ; and such judgment creditor may file a suggestion of such payment upon the record, and may issue execu- tion for the amount of the original judgment and of such payment (1842, chap. 240, § 1, 3 ^. S. 5th [Banks'] ed. 840). §§ 55 to 64 were added to this statute by what is commonly called the Bawdy-house act (1868, chap. 764). These provisions will be found in full in chapter 34, post. FOECIBLE ENTRIES AND DETAINEES. 197 CHAPTEE XXII. THE LAW AND PEACTICE ON PEOOEEDINGS FOE POECI- BLE ENTEIES AND DETAINEES. At common law, if a man had a riglit of entry in Mm, he was permitted to enter by force and arms, and to detain his possession by force, where his entry was lawful. This created great inconvenince by arming the tenants of the lords, and encouraging them in mischief and rebellious contentions. It also gave opportunity to powerful men, under the pretence of feigned titles, for- cibly to e.iect their weaker neighbors. The legislature finding it necessary to interfere, enacted statutes from time to time, regulating these conflicting interests, by punishing those guilty of forcible entries and detainers, and furnishing a remedy for restitution to those whose possessions were invaded and detained {Bac. Ahr., title "Forcible Entry and Detainer"). These old acts were almost literally copied into, our statute (1 R. L. 96) ; their provisons being intricate and unsuitable for the purpose intended, the present statute of this state, which went into efifect January 1, 1830, was passed. This statute provides that no entry shall be made into any lands or other possessions, but in the cases where entry is given by law ; and in such case, only in a peaceable manner, not with strong arm, nor with a multitude of people, and a forcible entry or de- tainer is committed by violently taking or keeping pos- session of lands and tenements with a strong arm or a multitude of people, with unusual weapons, personal violence or acts tending thereto, or such threats or menaces of life or limb, or such gestures or other cir- cumstances as may give reason to apprehend personal injury or danger in standing in defense of one's posses- 198 LANDLORD AND TENANT. sion, sometliiiig more than a mere trespass upon the property is necessary (The People v. Smith, 24: Barb. 16 ; People V. Field, 52 Id. 198 ; Wood o. Phillips, 43 N. Y. 152 ; Porter v. The People, 7 How. 441) ; and the same circumstance of violence or terror which will constitute a forcible entry, will amount to a forcible de- tainer, and threats may be sufficient to constitute either (The People v. Rickert, 8 Oow. 226), but the mere breaking of the lock of an outhouse is insufficient (Willard v. Warren, 17 We7id. 257). Under this statute, if a landlord enter with force to distrain for rent ; or if, upon the expiration of tie ten- ant's interest, the landlord enter upon him and dis- posses him with a strong hand ; the landlord will, in either case, subject himself to answer criminally for forcible entry {Compn' s L. & T.., 2d ed. p. 585), and civilly to an action for damages (Flaherty v. Andrews, 2 E. B. S. 529 ; Shannon ». Burr, 1 Kilt. 39) ; at com- mom law an indictment will lie for a forcible entry and detainer, on the ground of a violation of the public peace ; and upon conviction upon any such indictment, the court may award restitution in the same manner as a judge, upon a verdict being rendered before him {^ide § 23 of the statute, at p. 181, ante^ and 8 Cow. 226) ; and by statute, an action of trespass is authorized, be- sides the remedy by summary proceedings (2 Edm. p. 349, §4). The statute of forcible entry and detainer was originally strictly a criminal proceeding, and though it has been subsequently enlarged so as to embrace to a certain extent a civil remedy, the form of proceeding and the rules of law which govern it remain to a great decree unchanged (Wood «. Phillips, 43 N. Y. 152). Officers liaTiiig jnrisdiction of said proceedings. The officers authorized by the statute to entertain these proceedings, are the judges o£ the county courts of the same county in which the entry or detainer is FOECIBLE ENTEIE8 AND DETAINEES. 199 made (§ 2 of statute, vide p. 175). Also the jiistices of the Supreme Court, the mayor, recorder, or aldermen of any city, within the limits of their cities, the judges of the court of Common Pleas, the city judge, and any justice of the district court of the city of New York, are clothed with like powers as the county judges (§ 18 of statute, vide p. 180 ; Const, of 184,6, art. 14, § 8 ; Laws 1848, chap. 153, §§ 3, 4 ; Id. chap. 276, § 1 ; 1850, chap. 205; 1852, chap. 334 ; 6 Abi. 144). Likewise the justices of the Superior Court of the city of Buffalo, within that city (1857, chap. 361, §§ 6, 25) ; and the city judges of Brooklyn within the county of Kings (1849, chap. 125, § 26 ; 1870, chap. 470, § 13). The Marine Court Justices were deprived of this jurisdiction by Laws 1870, chap. 582, § 5. Quere. Does the act of 1857, chap. 344, § 77, defining the powers of the District Court justices and repealing inconsistent acts (§ 81) take this jurisdiction away from them. Proceedings, how institnted, and by whom. The proceedings must be instituted by the person forcibly put out, or forcibly held out of possession, or the guardian of any such person being a minor, and must be prosecuted in the name of the party whose legal right of possession has been invaded (The People V. Fulton, 11 ]V. Y. 94). A mere intruder can not maintain the proceeding, but every person lawfully in possession, and having some right to the possession, and forcibly excluded therefrom, is entitled to the ben- eat of the statute (The People v. Eeed, 11 Wend. 157 ; § 3 of the statute, vide p. 175, ante) ; but one tenant ia common can not maintain a proceeding of this kind against his co-tenant (King o. Phillips, 1 Lans. 421). The proceeding is instituted by a complaint in writing, accompanied by an affidavit of the forcible entry or forcible holding out, and must set oat the particular estate and right of possession of the complainant. If 200 LANBLOKD AND TENANT. the complaint is verified by affidavit, no other affidavit is necessary, and the complaint will be regarded both as a complaint and an affidavit (Porter «. The People, 7 How. 441 ; People v. Fulton, UN. Y. 96). The mere allegation of the complainant's right of possession, without stating the right is a mere legal conclusion, and the plaintiff, upon motion, should be dismissed for the defect (The People v. Field, 53 Bari. 198) ; but unless the objection is taken before the officer entertaining the complaint previous to the taking of the inquisition, it can not be raised afterwards (The People v. Reed, 11 Wend. 157 ; People v. Field, 58 Barb, 270 ; 24 Id. 16 ; 20 Wend. 207). Complaint for forcible entry and detainer. Before Hon. Justice of the Court. The People ex rel. John Doe, Complainant, e. Richard Doe, Defendant. To Hon. Justice of the Court of The complaint of John Doe of in said county shows: That Richard Roe of in said county, on the day of 187 , did, unlawfully make a forcible entry (describing fully the facts), into the lands and premises of this complainant, to wit: All, &c. (describe premises particularly), and that the said R. R. did then and there vio- lently, forcibly, and unlawfully, and with strong hand, eject and ex- pel this complainant from his said lands and premises (or hold this complainant out of possession of his said lands and premises). And the said complainant further shows : That he had at the time aforesaid, an estate of freehold (or for a term of years in the premises, stating fully the nature and extent of the right of possession), and that the said Richard Roe still unlawfully and forcibly holds and detains the said lands and premises from the said John Doe, against the form of the statute in such case made and provided. Dated this day of 187 . JOHN DOE. (If the complaint is verified by affidavit, no other affidavit is nec- essary; if not so verified, annex to the complaint an affidavit in the following form.) rORCIBLE E]SrTEIES AND DETAIBTERS. 201 Title of Peocbbding. City and County of New York, ss.' : * John Doe of said city being duly sworn says : That he is the oomplainaiit above named. That Richard Roe of the city and county of New York, on the day of 187 , did unlawfully make a forcible entry (describe fully the facts), into the lands and premises of this complainant, to wit: (here describe premises), and that the said Richard Roe, did then and there violently, forcibly, and unlaw- fully, and with strong hand, eject and expel this complainant from liis said lands and premises (or did hold this complainant out of his said lands and premises), and that at the time aforesaid this complainant had an estate of freehold (or other right of possession or occupancy, setting forth its nature and extent), and that the said Richard Roe still unlawfully and forcibly holds and detains the lands and premises of deponent contrary to and against the form of the statute in such case made and provided. TOHN DOE Sworn to before me this ) day of 18V . \ This complaint and affidavit are filed with the offi- cer before whom the proceedings are instituted, who thereupon issues his precept for a jury as required by section 3 of the act {vide page 175, ante), and immedi- ately causes a notice in writing of the time and place of the return of said precept according to section 4 of the act (Id.) to be served upon the party against whom the complaint is made in the manner specified in said section. The following is the form of precept for the jury, and the form succeeding that is the notice of precept, and is the only notice served upon the defen- dant upon the commencement of the proceedings : Precept for jury. Title of Procebdino. The People of the State of New York, to the sheriff or any constable of the City and County of New York, Greeting : You are hereby commanded to cause to come before me, at my office at the court house, city hall, in the City of New York, on the day of 187 , at 11 o'clock in the forenoon of that day, twenty-four inhabitants of the said county, duly qualified by law to serve as jurors, to inquire upon their oaths for the said people of a certain forcible entry made by Richard Roe, as it is said, into the lands and premises of John Doe, in the city and county of New York (or certain forcible liolding out of possession of John Doe by one Richard Roe of the lands and premises of the said John Doe ; situated in New York city and county aforesaid), against the form of the statute in such case made and provided. Given under my hand, this day of 187.5. Justice. 36 202 LAISTDLOED AND TENANT. • Notice to the defendant. ■ ^ Title of Peoceeding. To Bichard Roe of the city and couaty of New York : On the complaint of John Doe of said city and county, accom- panied by an affidavit, duly verifying the same, made to the under- signed justice of , that you did on the day of 187 , unlawfully make a forcible entry (or did make entry in a forcible manner) into the lands and premises of the said John Doe, situate in aforesaid to wit : (Here describe premises) and that you did violently, forcibly, unlawfully and with strong hand eject and ex- pel the said John Doe from his said lands and premises (or hold the said John Doe out of possession of his said lands and premises) and that you do still unlawfully and forcibly hold and detain the said lands and premises from the said John Doe and that at the time afore- said the said John Doe had an estate of freehold (or other estate) in the said lands and premises then and still subsisting in the same. You will, therefore, take notice that I have this day issued my pre- cept, directed to the sheriff (or any constable) of said county, command- ing him to cause to come before me, at my office at the court house, in the city and county of New York, on the day of 187 , at 11 o'clock in the forenoon, twenty-four inhabitants of the said county, duly qualified by law to serve as jurors to inquire upon their oaths, of the forcible entry (or forcible holding out) aforesaid. Justice. After the service of this notice upon the defendant, a duplicate or copy must be returned to the justice with the following affidavit of service thereon : City and County of New York, ss. : J. H. McC, of said city being duly sworn, says: That on the day of 187 , he served upon Richard Roe, of said city and county, a notice of which the annexed is a copy, by de- livering the same to him personally {or, by delivering the sanie to E. F. the wife of the said Richard Roe) on the premises de- scribed in said notice ; and that such service could not be made upon the said Richard Roe, for the reason that after diligent in- quiry he could not be found (or, by affixing the same to the front door of the house on the premises described in said notice, there being no person of proper age on the premises, and that such service could not be made upon the said Richard Roe, for the reason that after diligent inquiry he could not be found). J. H. MoO. Sworn to before me, this | day of , 187 . f As to this form, see § 4 at p. 175, ante. The sheriff or constable executing the precept must make his return thereto, showing that he has caused twenty -four inhabitants of the county, naming them,qual- ified to serve as jurors to appear before the justice enter- rORCIBLE ENTRIES AWD DETAINERS. 203 taining thq proceedings; these jurors are thereupon called and the justice is required to administer an oath to such of the persons returned summoned, as shall appear, not being less than thirteen nor more than twenty-three, well and truly to inquire into the matters complained of, and a true inquisition to make (section 5 of the act, vide p. 176, ante). Sheriff's or constable's return to precept. Before Hon. Justice of the court. J The People ex rel. John Doe, Complainant, V. RrCHAED EOB, Defendant. Pursuant to the precept issued to me herein I do hereby return, that I have caused to appear at the time and place mentioned in said precept, twenty-four inhabitants of the said county, duly qualified to serve as jurors, to wit, the following named persons. (Here insert names and residences.) • To inquire upon their oaths of the forcible entry or detainer made and continued by Eichard Roe as it is said upon the lands and prem- ises of John Doe in said precept referred to. New York, , 187 . Form of oath to jury. You, and each of you, do swear that you will well and truly in- quire into the forcible entry (or forcible holding out) complained of by John Doe against Richard Roe and a true inqui^tion thereof to make, so help you God. The jury so sworn must not exceed twenty-three in number (2 Cai. 98) ; they are to make inquiry into the forcible entry or the forcible holding complained of, and may examine the witnesses produced, and are to make and sign their inquisition before the justice, and are to deliver the same to him (section 5 of the act, vide p. 176, ante). The form of this inquisition is given below. The jury of inquiry are not to examine questions of title, or of the right of possession on the part of either contest- ant, and are coniined to the simple inquiry as to 204 xAndlobd and tenant. whether there has been a forcible entry or detainer within the meaning of the Statute (Carter v. Newbold, 7 How. 166 ; The People v. Wilson, 13 Id. 446). Oath to Tvitnesses. You do swear that the evideace you shall give touching the for- cible entry (or forcible holding out) complained of by John Doe against Richard Roe, and now to be here inquired into, shall be the truth, the whole truth, and nothing but the truth: so help you God ! 1 Inquisition. An inquisition taten before one of the judges of the Court of Common Pleas, in and for the city and county of New York, at the Court House in the city and county of New York, on the day of 187 , by the oaths of (here insert the names of the jurors who concur in the inquisition). The undersigned inhabitants of the city and county of New York aforesaid, qualified to serve as jurors, having been summoned to inquire of the forcible entry (or forcible holding) hereinafter mentioned, and having appeared at the time and place aforesaid, before the said county judge, who then and there administered to the undersigned an oath well and truly to inquire into the forcible entry (or forcible holding out) complained of by John Doe against Richard Roe, and a true inquisition thereof to make. Whereupon the undersigned jury so sworn, having then and thera proceeded to make inquiry into the said forcible entry (or said forcible holding out) complained of, and exam- ined the witnesses on oath administered by the said judge, before him then and there made, now here make this their inquisition as follows, to wit: The undersigned jury have found and hereby find and present, that John Doe of said city and county aforesaid, long since had an estate of freehold (or other estate, describing the same) in that certain piece or parcel of land in the city of New York aforesaid, and which is bounded and described as follows : (Here insert description of premises as con- tained in complaint), and that the said John Doe, was long since peaceably and lawfully possessed of the same, and that the estate and possession of the said John Doe, so subsisted and continued until Richard Roe, of said city and county, on the day of 187 , * did forcibly and unlawfully, and with strong hand, enter into the said land and premises and eject and expel him, the said John Doe therefrom ; and the said John Doe so expelled from the said land and premises, from thd said day of 187 until the day of the taking of this inquisition, unlawfully and for- cibly, and with strong hand did keep out and does yet keep out, to the great disturbance of the people of the state of New York, and con- trary to the form of the statute in such case made, and that the estate of the said John Doe as aforesaid, still subsists therein. And the said jurors, whose names are subscribed hereto, do, on the evidence produced before us, find the inquisition aforesaid true. {Signatures of Jurors.) * If the inquisition find the entry in a peaceable manner, and that the possession was held by force, then proceed from the asterisk (*) as FORCIBLE ENTRIES AND DETAINEES. 205 Restitution ordered, if there is no traverse. If the jury find that the defendant is guilty of the forcible entry or detainer, and the defendant does not traverse the inquisition in the manner specified in the statute, and within twenty-four hours after it is found, the officer shall award restitution of the premises, and assess the costs and expenses of the proceedings, and issue his precept to cause restitution, and for the col- lection of the costs in the same manner as on judgment of verdict of guilty on the trial of such traverse. The costs and expenses here allowed, are only the fees of the officers who are required to perform services in these proceedings. Award of restitution after inquisition. Before Hon. Justice. n The People ea rel. John Doe, V. Richard Roe. The jury summoned and sworn to inquire into the forcible entry (or forcible detainer), complained of by John Doe, against Richard Roe, having made their inquisition, by which the said Richard Roe, is found guilty of the said forcible entry (or forcible detainer), and the defendant not having traversed the said inquisition within the time allowed by law; I, the undersigned county judge of the county of before whom the said proceeding is pending, do hereby award restitution to the said John Doe, of the premises described in the said inquisition, and do also hereby assess the costs and expenses of the said proceedings at the sum dollars. Justice. follows: — made entry in a peaceable manner into the said lands and premises, and after such entry did then and there violently, forcibly, and unlawfully and with strong hand, hold the said John Doe out of possession of his said lands and premises; and the said John Doe from the said day of until the day of the taking of this inquisition, unlawfully and forcibly did lieep out, and does yet keep out of the lands and premises aforesaid, to the great disturbance of the people of the state of New York, and contrary to the form of the statute in such case made ; and that thrf estate of the said John Doe as afore,said, still lawfully subsists therein. And the said jurors, whose names are subscribed hereto, do, on the evidence produced before us, find the inquisition aforesaid true. {Signatures oj Jurors.) 206 LANDLORD AND TENANT. " Precept " or « Writ of Restitution. " The People of the state of New York, to the sheriff or any constable of the city and county of New York, Greeting : Whereas, John Doe of said city and county, did, on the day of 187 , make complaint in writing, duly verified, to the undersigned county judge of said county, that Richard Roe of said city and county on the day of at aforesaid, did, &c. (Here recite the complaint and the sub- sequent proceedings, and then add) This is therefore to command you to go to the premises aforesaid, and to cause the said John Doe, to be restored and put into full pos- session of the said lands and premises according as he was seized or possessed thereof before the said entry. And you are also further cormnanded to levy and collect the sum of dollars of the goods and chattels of the said Richard Roe, (excepting such goods and chattels as are by law exempt from levy and sale on execution), and to bring the money before me within sixty days from the date hereof to render to the said John Doe. Given under my hand, the ■ day of 187 . Justice. Traverse for inqnisition, &c. If by such inquisition it shall be found that forcible entry was made, or that the entry being peaceable, the possession was forcibly kept, the party complaiued against may traverse such inquisition, in writing, denying such forcible entry, or forcible holding out ; or by alleging that he or his ancestors, or those whose estates he has in such lands, have been in quiet possession thereof for the space of three whole years next before such inquisition found, and that his interest therein has not ended or determined, as follows : Form of traverse of inquisition. Before Hon. Justice. The People ex rel. John Dob, «. i- RicHARD Rob. And afterward, to wit: on the day of 187 , at the city and county of New York aforesaid, before the said county judge as aforesaid, comes the said Richard Roe, in his proper person, and having heard the said inquisition read to him hereby traversing the same (*) denies that he is guilty of the said supposed forcible en- try (or forcible holding out) in manner and form as m the said inquisi- tion alleged, and of thisy hei, the said Richard Roe, puts himself upon the country, and the said people do the like, &c., (or from the aster- isk (*) proceed thus) : alleges that he, the said Richard Roe, or his ancestors, or those whose estate he has in the lands in said inquisition described, have been in quiet possession thereof for the space of three FORCIBLE ENTEIBS AND DETAINERS. 207 whole years next before the said inquisition found, and that his, the said Richard Roe's interest therein, is not ended or determined, and of this, he, the said Richard Roe, puts himself upon the country, and the said people doth the like, &c. RICHARD ROE. And if the defendant shall pay to sach officer the fees of summoning a jury to try such traverse, and the jurors' and officers' fees on such trial, such traverse shall stay all further proceedings on such complaint and inquisition, until the same be tried (section 6 of the act, vide p. 176, ante ). If any person shall make affidavit before such offi- cer, that the party complained against is the tenant of such person under a valid and. then subsisting demise, he shall be permitted on payment of the fees specified in the last section to traverse the inquisition as land- lord, in the said manner as is allowed to the party com- plained of, either vs^ith such party or without him {Id. section 7, ante, p. 176). The proceedings in the traverse seem at first blush to be an anomaly in civil proceedings, from the fact that two juries instead of one are called upon to adjudicate upon the rights of the respective parties ; but when we consider that the proceeding was originally of a criminal nature (Wood v. Phillips, 43 If. Y. 152), it will not be surprising to find the apparent close analogy between these and ordinary criminal proceedings. In these last mentioned proceedings, the grand jury form the jury of inquiry ; if they find no cause therefor, they decline to indict, and that generally terminates the proceeding ; if they do indict, however, the defendant is put up- on trial before a petit jury, and before this jury his rights are more thoroughly considered and finally dis- posed of. It is not to be understood that the proceed- ings are alike in all respects, but that the one bears a very strong resemblance to the other. If it shall be found by the inquisition made by the jury of inquiry, that the defendant is guilty of a forcible entry or de- tainer, and the defendant traverses the inquisition and 208 LANDLOED AND TEWANT. pays the necessary fees for summoning a jury to try the traverse, the officer entertaining the proceeding shall issue a precept to the sheriff, or any constable of the county, commanding ,him to summon twelve qualified jurors to come before such officer at the place therein to be specified, at a time not less than four, nor more than eight, days thereafter, to try such traverse (section 8 of the statute, vide p. 177, ante) ; and although- the traverse has been made, it is not too late for a mo- tion to be made to quash the inquisition (The People V. Wilson, 13 How. 446) ; and the court may permit the defendant to move to set aside the inquisition, on the ground of the rejection of proper evidence before the jury which found it (Carter ■». Wewbold, 7 How. 166). If any of the persons summoned as jurors are found to be disqualified, the sheriff or constable may be directed to summon others in their places until his panel contains twelve qualified jurors ; the traverse can not be tried with less (Porter v. The People, 7 How. 441). Precept for jury to try trayerse. The people of the state of New York to the sheriff or any con- stable of the city and county of New York, Greeting : You are hereby commanded to summon twelve good and lawful men of the city and county of New York, duly qualified to serve as jurors, and not exempt from serving on juries in courts of record, and in no wise akin to John Doe or Richard Roe, of the same place, to come before the undersigned county judge of said county at the Court House, City Hall, in the city of New York, on the day of inst., to make a jury of the county, upon their oaths to try a certain traverse of an inquisition, found upon the complaint of the said John Doe against the said Richard Roe, and now pend- ing before me for a certain forcible entry (or forcible holding out of possession), made by the said Richard Roe, into the lands and prem- ises of said John Doe, in the city of New York afcresaid, against the form of the statute in such case made and provided. And that you make a list of the persons summoned, and certify and annex the same to this precept, and make return hereof to me. Given under my hand, this day of , 187 . Justice. FORCIBLE ENTRIES AND DETAINEES. 209 Oath of jurors. ' You and each of you do swear that you will well and truly hear, try, and deteraiine the traverse of an iuquisition found upon the com- plaint of John Doe against Richard Roe, for a certain forcible entry (or forcible detainer) made by the said Richard Roe into the lands and premises of the said John Doe, as is alleged, and a true verdict give according to the evidence, so help you God. Oath to witnesses. You do swear that the evidence you shall give touching the forci- ble entry (or forcible detainer) complained of by John Doe against Richard Roe, on the traverse of the inquisition found upon the said complaint, shall be the truth, the whole truth, and nothing but the truth, so help you God. Proceedings before^the jury 5 what may be shown. Section 9 of the statute {.ante, p. 177) provides for the manner of summoning, returning and impanelling the jury. If any of the individuals summoned are found to be disqualified, the sheriff or constable may be directed to summon others in their places, until the panel contains twelve qualified, j urors ; there can not be less (Porter v. Tlie People, 7 How. 441). If the jury are unable to agree, they are to be discharged, and a precept issued for a new jury (§ 10, ante, p. 177). Section 11 of the act {ante, p. 178) provides what the complainant and defendant may show upon the trial. The legislature has not cast upon either jury the bur- den of investigating titles to real property (People xi. Leonard, 11 Johns. 504 ; Carter w. Newbold, 7 How. 166 ; 1 Daly, at p. 46), Their duty seems to be defined in this section {ante, p. 178, § 11). Proof of a sufBcient estate or right of possession is to be made to the j adge before any process can be is- sued ; but on the trial of the traverse before the second. jury, the complainant is only required to show, in ad- dition to the forcible entry and detainer complained of, that he was peaceably in actual possession, or was in the constructive possession at the time of the act com- plained of {^iicLe cases cited above). Nor is the defend- 37 210 LANDLOED AND TENANT. ant authorized to show or avail himself of any estate or right of possession in a stranger (Carter v. Kewbold, 7 How. 166). The proceedings are altogether statutory, and neither judge nor jury has any other power than what the act confers (Id.). The only matter incLuirable into upon the trial is whether the party charged entered by force upon one, having previously a peaceable pos- session, and held out by force (Wells v. De Leyer, 1 Daly, at p. 46, citing 9 Wend. 51 ; 11 Johns. 504, and 8 Cow. 226). If the jury find the defendant guilty, the magistrate shall thereupon award restitution of the premises so forcibly entered, or forcibly held and detained, and shall assess the costs and expenses of the proceedings (section 12 of the statute, ante, p. 178 ; People v. Townsend, 6 How. 178) ; which do not include the fees of attorneys, but refer to the fees of the officers who are required to perform the services. The statute regulating the fees of attorneys applies only to suits in courts of record, and the proceedings in forcible entries and detainers, are not an action in a court of record within the meaning of that statute (The People v. Townsend, 6 How. 178 ; Van Hovenburgh v. Case, 4 Hill, 541 ; Partridge v. Ford, 5 How. 21). Award of restitution after yerdict. {Title as in complaint.') The jury summoned and sworn to hear, try, and determine the forcible entry (or forcible detainer) complained of by John Doe against Richard Roe, having rendered their verdict, by which the said Richard Roe is found guilty of the said forcible entry (or forcible detainer), I, the undersigned, judge of the court of Common Pleas, in and for the city and county of New York before whom the said proceeding is pending, do hereby award restitution to the said John Doe of the premises described in the complaint of the said John Doe, and do also hereby assess the costs and expenses of the said proceedings at the sum of dollars. Dated, &c. Justice. Writ of restitution after verdict. (Same as ante, page 206, reciting the complaint and all subsequent proceedings.) LAW OF STTMMAKT PEOCEEDINGS. 211 CHAPTER XXIII. THE LAW AND PKACTIOE ON SXJMMAKY PROCEEDINGS TO RECOVER THE POSSESSION OF DEMISED LANDS AND PREMISES. The object, design, and applicatioir of the Statute. Previous to the act of April 13, 1820 (chap. 194), the only remedy the law furnished to landlords for the recovery of lands and tenements, upon the forfeiture or expiration of the tenant's term was the action of eject- ment : a proceeding so expensive and dilatory as against a tenant iitigioiisly inclined and perhaps irresponsible, as to amount in some cases almost to a denial of jus- tice. The statute was designed to remedy this evil, by providing the landlord with a simple, speedy, and in- expensive summary method of regaining possession of his premises, in cases where the tenant refuses upon de- mand to pay the rent, or where he wrongfully holds over, and continues in possession of the demised premises, after the expiration of his term, without per- mission. The statute is restricted in its application, however, to cases where the conventional relation of landlord and tenant, created by agreement, exists be- tween the parties, and does not embrace every case where ownership is in one, and possession in another, but only where he who is in possession, has by some act or agreement recognized the other as his landlord, and assumed the character of a tenant under him, so that he is not at liberty to dispute his title (Benjamin v. Benjamin, 5N. T. 383 ; Mitchell v. Simpson, 28 N. Y. 55 ; Roach v. Cosine, 9 Wend. 227 ; Sims v. Humph- rey, 4 Den. 185 ; People v. Bigelow, 11 How. Pf. 83 ; Wright V. Mosher, 16 How. 454 ; Russell v. Russell, 32 Id. 400 ; People v. Annis, 45 Earl. 304 ; Deuel v. Rust, 24 Id. 438J. 2l2 LAWDLOKD AND TEKAISTT. The remedy has by degrees been extended by stat- ute to lessees of the corporation of Brooklyn (1850, p. 285, § 40) ; against keepers of poor houses (1862, ch. 298) ; against keepers of bawdy houses (1868, ch. 764) ; against illegal trades (1873, ch. 583, § 1) ; against over- holding tenants working farms on shares (1874, ch. 471, p. 612) ; against any person whose real estate has been sold, and title perfected, under mortgage foreclosure (1874, ch. 203) ; or under executions against property (§ 28. subd. 4, ante, p. 185). These general principles in their application to par- ticular cases are illustrated by the following cita- tions : 1. The relation of landlord and tenant, in the strict technical sense of the term, exists between the lessee, or his assignee, and the assignee or grantee of the lessor, provided there was a conventional relation between the original parties (Birdsall v. Philips, 17 Wend. 464 ; Mil- ler v; Levi, 44 N. Y. 489 ; 1 JEdm. B. S. p. 698, § 23). 2. Where a party enters into the possession of premises, under an agreement to accept a lease for twenty months, and subsequently refuses to accept the lease, he becomes, by such refusal, a tenant at will, or by sufferance, and may be proceeded against summa- rily, under the statute (Anderson v. Prindle, 23 Wend. 616 ; and see 14 Abb. 372 ; 38 Barb. 269.) 3. Where the owner agrees that his creditor may oc- cupy premises belonging to him, for the term of one year, and until he pays a mortgage which the creditor holds against him, the relation of landlord and tenant is thus created between the parties ; and on payment of the money, after the first year, and refusal of the cred- itor to yield up the possession, the owner may properly resort to summary proceedings against the creditor, to obtain possession (Hunt v. Comstock, 15 Wend. 665). 4. A judgment debtor, continuing in possession of real estate after title thereto has been perfected under a sale on the execution against him, is a tenant within LAW OF STTMMAET PROCEEDINGS. 213 the meaning of the statute (Spraker v. Cook, 16 i7. 7". 567). 5. A wharf or pier, reclaimed from tide-water by embankment, or by raisng the bottom with stone, earth, or other material, is within the act (People v. Kelsey, 14 Abb. Pr. 372; S. C. 38 Barb. 269); but in a subsequent case, where the relators who were entitled to use a pier for loading and unloading canal-boats, agreed to pay the respondent, the lessee of the pier, fifty dollars a month for the privilege of placing a derrick, scales, and office upon a certain portion thereof, it was Jield, that this did not create the relation of landlord and tenant, and that, upon the termination of the agreement, they could not be dispossessed under the landlord and ten- ant act (The People «. C ashman 8 Supreme Court [1 Run.] p. 73). In the first of said cases the demise was of the wharf itself, which, for the purpose of the proceeding, was held to be land ; in the second case the subject of the so-called demise was not the reality itself, but a mere naked privilege of using, on the pier, utensils and machinery, and the court held that the contract granting such privilege, did not create the relation of landlord and tenant. The distinction between the two cases is ob- vious. This summary remedy does not extend, however, to cases (1) where the relation of landlord and tenant is created merely by operation of law (Williams v. Bige- low, 11 How. 83 ; Burnett v. Scribner, 16 Barb. 621 ; Keneda v. Q-ardner, 3 Id. 589 ; Doolittle v. Eddy, 7 Id. 74 ; Livingston v. Tanner, 14 JSf. 7. 64 ; Carlisle «. McCall, 1 Hilt. 399 ; People v. Simpson, 14 Abb. 457, and notes, 28 N. T. 55) ; (2) nor to agreement for the pur- chase of real estate, where the vendee is in possession (Oakley v. Schoonmaker, 15 Wend. 226 ; Caswell v. Dis- trich. Id. 379 ; Putnam v. Wise, 1 Hill. 234), the proper remedy being by ejectment (3 Barb. 576; 7 Cow. 747): (3) nor to agreements for board and rooms (Wilson v. Mar- tin, 1 Den. 602); (4) nor to disputes between grantor and grantee, for conditions not performed (Roach v. Cosine, 214 LANDLOED A.ND TEKAKTT. 9 Wend. 227) ; (5) nor to intruders entering into pos- session immediately after the expiration of the tenant' s term, but without the tenant' s assent or landlord' s per- mission (Carlisle v. McCall, 1 Hilt. 399 ; Sliker v. Hovey, 4 Lans. 86) ; (6) nor to a case where the owner of the fee subject to a life estate made a lease to a third person (Buck v. Binninger), 3 Barb. 391 ; (7) nor as be- tween the widow of a person who died in poesession of premises, claiming to own them, on the allegation that the applicant stated to the widow that she might con- tinue to occupy the premises until a day named, without payment of rent, the widow not assenting otherwise than by continuing in possession (Benjamin v. Benjamin, 1 Seld. 383) ; (8) nor to agreements between master and servant, by which the servants are furnished with a habitation without rent (Haywood v. Miller, 3 Hill, 90 ; People v. Annis, 45 Barb. 804 ; Taylor v. Bradley, 4 Abb. Ct. App. Decis. 363 ; and see 53, Barb. 258) ; (9) nor to cases where the tenant for life of another holds possession after the determination of his estate (Liv- ingston V. Tanner, 14 If. T. 64 ; and see Id. 430) ; (10) nor to cases where the tenant fails to pay the taxes which he covenanted to pay as one of the condi- tions of his lease, in addition to the rent reserved (The People V. Swayze, 15 Abb. 432); but it is claimed that where the agreement provides that the amount of the unpaid tax may be added to and form part of the rent, that the above decision does not apply; (11) nor as between mortgager and mortagee (Evertson v. Sutton, 5 Wend. 281) ; (12) nor as between the tenant in pos- session and one to whom he asigns his lease (The People V. Simpson, 28 JV. Y. 55). Proceedings m.ay be taken by the grantees and representatiTes of the parties. These proceedings may be commenced by the land- lord or lessor, or his legal representatives, agents, or assigns (see § 29 of statute, ante, p. 186); and see pro- LAW OF SUMMAKY PROCEEDINGS. 215 visions as to grantees and assignees {vide ante, pp. 76, 86) ; and as to executors and administrators {Id. p. 75) ; and the term "legal representatives," as employed in the statute, is supposed to refer to those who, after death, succeed to the legal rights and remedies of the landlord, and stand in his place, representing him in respect thereto, as heirs, executors, or administra- tors, in the cases in which, by operation of law, will, or otherwise, the estate of the landlord is of such a nature as to go to or become vested in the persons occupying these respective relations or positions, in which cases they are authorized to assert their right thereto in the same manner as the iatestate or testator might have done if living, and the term "assignee" includes " grantee." The proceedings under the statute may be taken against the tenant and every one holding or claiming under him (§ 28, ante, p. 184 ; § 30, p. 186) ; and infancy is no defense to summary proceedings (3 Eill, 147) ; and as to who are under-tenants and who are assignees (see ante, pp. 84, 85, 88). The various statutory provisions upon summary proceedings will be found in the laws of 1830, chap. 194, p. 176; laws of 1843, chap. 240, p. 393; laws of 1849, chap. 193, p. 391; laws of 1850, chap. 144, p. 385, §40; laws of 1851, chap. 460, p. 853; laws of 1857 (vol. 3\ chap. 684, p. 509 ; laws of 1863, chap. 398, p. 489 ; laws of 1863, chap. 368, p. 631 ; laws of 1863, chap. 189, p. 338 ; laws of 1866 (vol. 3), chap. 754, p. 1636; laws of 1868 (vol. 2), chap. 764, p. 1724; laws of 1868 (vol. 3), chap. 838, p. 1930; laws of 1870 (vol. 2), chap. 741, p. 1833; laws of 1874, chap. 208, p. 339; laws of 1874, chap. 471, p. 612. And see the statute as it now stands {ante, pp. 174, 183). Arrangeineut of the ten chapters upon the law and practice of sum- mary pi'oceedings. Chap. 33 relates to •' Theobject, design, and application of the statute." " The rules of construction." •'The officers having jurisdiction." " Proceedings for non-payment of rent." "Proceedings for holding over." " Affidavits and its requisites." " Summons and its service." " Practice upon return-day." ' Proceedings upon the trial." " Pinal determination and its efEect." 33 relates to 34 25 26 27 28 39 30 31 31 216 LANDLORD AND TENANT. CHAPTER XXIV. THE LAW AND' PEACTICE ON SUMMAKY PROCEEDINGS — Continued. Rules of Construction applicable to the Statutes. Jurisdiction and proceedings thereafter. The rule of construction applicable to special or limited jurisdictions created by statute, is, that being the creature of the statute, the officer must clothe his proceedings with all the solemnities prescribed by the act which gives the power, and that such jurisdictions are (like justices' courts not proceeding according to the course of the common law) confined strictly to the jur- isdiction given to them, and take nothing by implica- tion (Jones -0. Eeed, 1 Johns. Cases, 20 ; Wells ». Newkirk, Id. 228 ; Way v. Carey, 1 Cai. 191 ; Wylie V. Hyde, 13 Johns. 249 ; Toof v. Bentley 5 Wend. 276 ; Watson e. Davis, 19 Id. 371 ; Yager v. Hannah, 6 HiZl, 631 ; Payne v. Hathway, 4 N. T. Leg. Obs. 21 ; Bige- low V. Stearns, 19 Johns. 39 ; Loomis v. Bowers, 2.2 Sow. 361 ; Graham on Jurisdiction, p. 4). The rule is, to be strict in holding them to the jurisdiction con- ferred, Ijut in all matters in which they have jurisdic- tion, to be liberal in reviewing their proceedings as re- spects form, regularity, and such like (Jones v. Reed, 1 Johns. Oases, 20 ; Baker v. Dambolton, 10 Johns. 240 ; Day V. Wilbur, 2 Cai. 134 ; Baum v. Tarpenny, 3 Bill, 75 ; Stafford v. Williams, 4 'Denio, 182 ; Bellows v. Sackett, 15 Barb. 96 ; Peters v. Diossy, 3 E. D. S?nit7i, 115) ; and iu determining the powers of such courts, the substance and not the form, the thing itself and not the name by which it may be called, is regarded (Elwell v. McQueen, 10 Wend. 520; Mo Adam! s Marine Court Pr., Ist ed. p. 108). LAW OF SUMMART PROCEEDINGS. 217 These general principles have been applied to sum- mary proceedings, and the courts have held that being in derogation of the common law, the statute must be strictly pursued in all the things upon vrhich jurisdic- tion depends (Farrington v. Morgan, 20 Wend. 207 ; Hill V. Stocking, 6 Hill, 314). Thus in Farrington v. Morgan (supra) it was held that where the statute di- rected the magistrate to nominate eighteen respectable persons, who were to be summoned as jurors, twelve of whom were to be ballotted for as the jury of trial, and the magistrate ordered twenty jurors, this was held to be erroneous under the tenant's objection, and the adjudication was for this reason reversed. The magis- trate at that time had no power, however, to try such a proceeding without a jury (Benjamin v. Benjamin, 5 If. T. 383). The power has since been conferred by amendment of § 34 of the act (1857, chap. 684). In Benjamin v. Benjamin, 5 iV. Y. 385, the court said : ' ' This statutory remedy, by way of a summary proceeding, is in derogation of the common law by action, and must be strictly construed. A peculiar and limited jurisdiction is thereby conferred upon certain magistrates, which can be exercised only in the way prescribed." The statute, however, being a remedial one, is to be construed liberally, to carry into efifect its intent, by suppressing the mischief, and advancing the remedy, in all cases where there is jurisdiction in the magistrate (Lynde v. Noble, 20 Johns. 80 ; 17 Wend. 464 ; Farring- ton V. Morgan, 20 Id. 207 ; Smith v. Moffat, 1 Barb. 65). The dictum of Beoxson, J., in Hill v. Stocking (6 Sill, 317), that these proceedings are to be carefully watched, lest they be turned into the means of working injustice and oppression, is to be remembered by the practitioner in preparing the affidavit, and in conduct- ing the proceedings under the statute so that they may 28 218 LAJVTBLORB AND TESTAWT. bear the scrutiny and watching suggested by Judge Beonsojs", if that ordeal should become necessary. The remark, however, was evidently intended only for those cases in which, owing to peculiar circum- stances, the summary nature of the remedy worked injustice and oppression, and not to the ordinary class of cases, in which this remedy has since become a ne- cessity, and the proceeding being remedial in its char- acter is to be liberally construed, in cases where juris- diction has properly attached, so as to uphold the pro- ceeding if possible. Hill v. Stocking (supra) was of the class of cases where the justice never acquired jur- isdiction, and the strict rule of construction, before re- ferred to (p. 216, ante), was applied. If it had belonged to the opposite class of cases, where jurisdiction had fully attached, the liberal rule, as to remedial statutes, would most likely have been adopted. LAW OF SXJMMAEY PROCEEDIKGS. 219 CHAPTER XXV. THE LAW AND PRACTICE ON SUMMARY PEOCEEDIKGS — Continued. ■ Judicial officers haTuig jurisdiction. The statute provides that the following judicial officers shall have jurisdiction of STimmary proceedings, viz. : "any judge of the county courts of the county, or any justice of the peace of the city or town where the premises are situated, or 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 (see § 28, S. S. ante, p. 184), or by the City J udge of said city (Marry v. James, 2 Daly, 437), or by the City Judges of the city of Brooklyn, where the premises are situated in Kings county (1849,. p. 174, § 26 ; 1870, chap. 470, § 13), or by any Justice of the Suprerior Court of the city of Buffalo where the premises are situated within that city (1857, vol. 1, p. 754, § 25), and the jurisdiction conferred by this statute is in a territorial point of view co-extensive with that of the officer upon whom it is conferred (Roach V. Cosine, 9 Wend. 227; Carlisle ?;. McCall, 1 HilL 399). In the cases just cited, it was held that the juris- diction of a Justice of the District Court in the city of New York, extended over the whole city, and was not limited to the district in which the parties resided or the premises were situated. The officers hereinbefore named having jurisdiction of these proceedings, may be classified with reference to locality in manner following : 220 LANDLORD AND TENANT. Where the premises are located within the city of New Torli. The Mayor. The Eecorder. The City Judge, The Justices of the Marine Court. The Justices of the District Courts. Where the premises are situated within the city of Brooklyn. The Recorder. The Judges of the City Court of Brooklyn. The County Judge of, Kings County. The Justices of the Peace. Where the premises are situated within the city of Buffalo. The Recorder. The Justices of the Superior Court of the city of Buffalo. The County Judge of Erie Couuty. The Justices of the Peace. Where the premises are not located within the three cities named. Any Judge of the County Court of the county in which the premises are located. Any Justice of the Peace of the city or town in which the premises are located. LAW OF SUMMARY PROCEEDINGS. 221 CHAPTER XXVI. THE LAW AND PRACTICE ON SUMMARY PROCEEDINGS- Continv£d. I. Definition of rent. II. Auxiliary remedies. in. Demand for rent — When and how made. IV. Demand upon joint tenants. V. Landlord's breach of covenant. VI. Payment of rent after commencement of proceedings. Definition of rent. Rent is a periodical return made by any pairticular tenant of land, either in money or otherwise, in retribu- tion for the land ; a rent must be certain, or capable of being made so by either party (1 EilUard on Real Prop- erty, 227), it is a certain profit issuin'g yearly out of lands and tenements corporeal {Co. Litt. i41g ; 2 Bl. Com. 41), and is defined by Lord Chief Baron Gilbert to be an annual return made by the tenant, either in labor, money or provisions, in retribution for the land that passes {Ollb. Rents, 9 ; note to Co. Litt. iy Thomas, vol. 1, p. 508) ; but the general understanding of the term rent, is the payment of a specified amount of money on a day named in the lease, for the use and oc- cupation of the demised premises, and it is very doubt- ful, to say the least, whether a summary proceeding can be maintained in any case, where the agreement pro- vides for the payment of rent in anything but money (Oakley v. Schoonmaker, 15 Wend. 226) ; and the only practical method suggested for obviating the difficul- 222 LANDLORD AND TENANT. ties arising in a case where the rent is payable in labor or provisions, is to bring an ordinary civil action upon the contract, and by the judgment fix the amount of the rent in dollars and cents, and then perhaps a pro- ceeding might be maintained to compel the payment of the amount so determined upon as in the case of any other fixed rent, for while the judgment would be con- clusive as to the amount, it would not merge the sum- mary remedy, if applicable to such a case (see author- ities collated at p. 79, and for rent payable in kind, see Taylor' sL. & T. §§ 391, 392), and a demand for the rent as fixed, would of course be necessary, as in other cases. II. Auxiliary remedies. It is supposed that an ordinary civil action for the recovery of the rent, and a summary proceeding for the possession of the premises, may proceed at the same time, although there can be but one satisfaction (see Grridley o. Eowland, 1 E. D. 8. 670, and see ante, p. 79). Landlord entitled to interest upon rent after default. Proceedings to disposses a tenant for non-payment of rent are not invalidated because of demand of the rent with interest, because the landlord is entitled to interest, as an incident to the principal, from the time of the default in payment (The People ». Dudley, 58 N. T. 323). Effect of foreclosure by lessor of mortgage npon lease. Joinder of parties as landlords in summary proceedings. S., being the lessor of certain premises, and also mortgagee of the lease and term, took possession under a warrant of dispossession against the lessees. LAW OF STJMMAET PROCEEDINGS. 223 He then foreclosed his mortgage ; this, by its terras, was made subject to rents, covenants, &c., of the lease. The complaint in the foreclosure suit prayed, and the judgment directed, the sale of the premises and leases mortgaged ; neither contained the clause of the mort- gage, that the term conveyed was subject to the payment of rent. The judgment directed the sheriff to deduct from the proceeds of sale all rents due upon the mortgaged lease. The relators were parties to the foreclosure suit, and became purchasers upon the sale, and it was held, that the sale was simply of the lease, with its correlative obligations ; that by the purchase, relators became assignees of the lease and term, and took subject to the obligation to ipaj rent, which had not been released or extinguished. It also appeared that the lease given by S. included premises owned by him, and also further premises in which he had a lease- hold interest — that hfe died leaving a will, by which he devised and bequeathed all his real estate, and the residue of all his estate to his son N., and it was held, that there was sufficient unity of a right of possession inN., and the executors of S., as joint owners of the lease and representatives of the lessor, to justify pro- ceedings instituted in their names, jointly, to disposses the relators for non-payment of rent (The Yeo-ple ex rel. Grisslerw. Dudley, 58 if. Y. 323). III. Demand for rent— when and how made. Rent is demandable on the same day it becomes due, but the teuant has all day to pay it, and is not in de- fault until after midnight of the day it is made payable (Academy of Music «. Hackett, 2 Hilt. 217 ; Oothout ». Ballard, 41 Barl. 33: Smith t. Aylesworth, 40 Id. 104). Before instituting summary proceedings under the 224 LANDLORD AND TENANT. statute, demand must be made for the rent either per- sonally of the tenant, or by the service of a three days' notice in writing, requiring the payment of the rent or the possession of the premises (§ 28, subd. 2, ante, p. 184), and this notice may be served in the manner pre- , scribed for the service of the summons {Id. §§ 28, 32, aiite, pp. 184, 187). The notice may be in the following form : Demand for rent by the service of a tliree days' notice. New York, October 1, 1875. To Richard Roe, tenant. You will please take notice, that you are indebted to me in the sum of fifty dollars, for one month's rent of the house and premises, No. 1 Broadway, in the city of New York, in advance, from September 1, 1875, till October 1, 1875, and that I require the payment of said rent, on or before the fourth day of October, 1875 (three days' no- tice), or the possession of said premises. Yours, &c., JOHN DOB, Landlord. The act is in the alternative. The rent must be demanded, or a three day's notice in writing given, requiring payment — it is not necessary to do both (Eogers v. Lynds, 14 Wend. 173). In the case last cited, it was held that a demand of the rent might be made of the tenant in possession, but the Supreme Court, in The People exrel. Simpson®. Piatt {43Bari. 116), held that a demand on the under-tenant in possession was insufficient, and that the demand must be made of the tenant, or the three days' notice given according to the statute ; and in The People v. Gross (50 Barb. 231), it was held that a demand of the rent under the statute must be made personally of the tenant, and that if the landlord relies for his demand upon a written notice under the second clause of the act, he must show a notice in the alternative, requiring payment or posses- sion ; and in Wolcott?;. Schenk (16 How. Pr. 449), it was held that a demand made at the lessee's usual place of business, not on the premises, and of his agent, with- LAW OF SUMMARY PEOCEEDIM-GS. 225 out saying who tlie agent was, or what was the nature of his agency, was insufficient. Demand of rent at commou law. At common law, the rules by which estates are for- feited or divested are very strict, and a landlord at- tempting to enforce a condition of re-entry on account of the ten ant's default in the non-payment of rent, must show compliance with the following things which must be previously done to entitle him to re-enter : 1. A demand must be made of the rent. 2. The demand must be of the precise rent due, for if a penny more or less be demanded, it will be ill. 3. It must be made precisely upon the day on which the rent is due and payable by the lease, to save the forfeiture, as when the proviso is, that if the rent shall be behind and unpaid for the space of thirty or other number of days, after the days of payment, it shall be lawful for the lessor to re-enter. A demand in such a case must be made on the thirtieth or other last day. 4. It must be made at a convenient time before sun- set. 5. It must be made upon the land, and at the most notorious part of it, unless a place be appointed where the rent is payable, in which case the demand must be made at such place. 6. A demand must be made in fact, and so averred in pleading, although there should be no person on the land ready to pay it. At common law, rent reserved, payable yearly, is to be paid on the land, because the land is the debtor, and that is the place of demand appointed by law. So if a man leases rendering rent, and the lessee binds himself in a sum to perform the covenants, this does not alter the place of payment of the rent, for it may be tendered on the land without seeking the obligor (Co. Litt. 201&), and this fis upon the principle that rent is a profit issuing out of lauds and tenements corporeal, 39 226 LANBIiOliD AKD TENANT. Statutory dcinaud for rent. The question has been raised as fo when and at what place, and in what words a personal demand for the rent should be made in order to satisfy the require- ments of the statute. The statute is silent on the subject, and only requires that a demand of the rent sliall have been made, and it v/ould seem to be a fair and reasonable oonsfruction, to hold, that any words of demand, by the landlord, intelligible to the tenant, made after default, ought to be sufficient to satisfy the requirements of a remedial stat- ute, endeavoring to shake oflf the intricacies and niceties by which the common law endeavored to prevent forfei- tures and actions to enforce them. The common law did not favor tlie forfeiture of estates, and was therefore technical in exacting great precision both as to the form, place and time of the demand required from those seeking to enforce them. The statute, however, fur- nishes every safeguard against forfeiture of the tenant's estate, by allowing him to pay rent, at any time before the warrant issues to remove him (§ 44, ante, p. 192), and by staying the issuing of the warrant of removal for ten days by giving a bond to pay the rent and costs within that time {Id.), and finally by allowing him one year after the execution of the warrant to redeem in cases wherein the tenant' s unexpired term at the time of issuing the warrant, exceeds five years (§ 54, ante, p. 196), and there is no case holding that the technical rule in regard to- forfeitures, laid down in IG Johns. 2-Z2 ; 17 Id. 66 ; 18 Id. 447 ; 2 Hilt. 217, applies to these proceedings, excepting one of Justice Beowm" in Wolcott «. Schenck (16 How. 450), in which he says : "The right to re-enter for the non-payment of rent, both at the common law and in pursuance of the statute, is a matter stricti juris, and whoever asserts it, must see that every pre-requisite to its exercise, is exactly per- formed. It is a right which the law will enforce but LAW OF StrMMAEY I-BOCEEDINGS. 227 will not favor. The statute requires that a " demand of such rent shall have been made," and it uses this expression in the sense in which it was used at the common law." A literal performance of the common law pre-requisites to a demand for rent seems contrary to the genius, spirit and purpose of the statute, and is in some respects contrary to the adjudications. A few illustrations will suffice. In the first place, at common law, a demand might lawfully be made upon the land, which was in theory considered the debtor, but the au- thorities hold that such a demand is insufficient under the statute, that it must be personal upon the tenant or by the service of the three days' notice provided by statute (see The People ex rel. Simpson v. Piatt, 43 Barb. 116; The .People «. Gross, 50 Id. 231). In the next place, a common-law demand, to be effective, was required to be made upon the very day on which the rent is due and payable, and at a convenient hour before sunset. This pre-requisite if literally en- forced would seriously embarrass if not defeat what was designed to be a simple as well as speedy remedy. Landlords, particularly of tenements, would be incon- venienced, and their tenants considerably annoyed by demands for rent before sunset on the first day of the term, yet if the demand should be postponed to the second day of the term, the remedy would be forever gone. Therefore, we repeat, that it would be a fair and reasonable construction of this statute, to hold, that any words of demand by the landlord, intelligible to the tenant, made after default, satisfies the requirements of this remedial statute, which wag intended to super- sede the formula, circumlocution and verbosity peculiar to the common-law remedy of ejectment, by introduc- ing a new proceeding more terse, simple and summary, freed from the evils of the former remedy which by its intricacy and delay became of little practical utility to landlords ; of course the landlord must not be ex- cessive in his demand, he must not insist upon more 228 LAWDLOED AND TENANT. than is actually due, for if lie does, the tenant is not placed in default by refusing or neglecting to comply with it, but the proceedings will not be invalidated because of the demand of the rent with interest ; be- cause the landlord is entitled to interest, as an incident to the principal, from the time of the default in pay- ment (The People ex rel. Gottlieb G-rissler w. Dudley, 58 N. Y. 323). IV. Demand upon joint tenants. Where two tenants hold jointly a demand on either is sufficient (Geisler v. Weigand, 9 N. T. 227), and one of two joint landlords may demand the whole rent, and commence proceedings for its non-payment in the name of both (Griffin v. Clark, 33 Barb. 46 ; and see 3 Bosw. 63) WJiere the landlord^ s breach of covenant constitutes no defense. It is not competent for the tenant in these proceed- ings to show a breach of the landlord' s agreement to construct the premises in a proper manner. The tenant can not withhold both the rent and the possession (The People «., Kelsey, 14 Abb. Pr. 372 ; S. C. 38 Bo.rb. 269 ; La Farge v. Mansfield, 31 Id. 345 ; 1 Bosw. 646 ; S. C. 16 How. Pr. 164). VI. Payment of rent after commencement of proceedings. In Chapter VI. {ante, p. 47) the time and mode of payment of rent is fully stated, and in the same LAW OF STTMMAEY PEOCEEDINGS. 229 chapter {ante, pp. fi2. 53), the effect of a tender before and after suit brought is also considered. The tenant may even after suit brought or summary proceedings commenced pay his rent, provided he pay the taxable costs therewith. The rent and costs may be paid in summary pro- ceedings, at any time before the warrant is actually is- sued. Demanding receipt. In Griffith v. Hodges (1 Car. & P. 419), Abbott, 0. J., said : "No man can insist on a receipt in full of all demands ; and if a man makes a tender of money, in- sisting at the same time on a receipt in full of all de- mands, I have no doubt that such, tender is bad" (see also ante, p. 53). ' 230 X-AKDLOED AND TENANT. CHAPTEE XXVII. THE LAW AND PRACTICE ON SUMMARY PROCEEDINGS — Goiitinued. — proceedings for holding- otei{. I. Consequences of holding over. n. The cases contemplated by the statute. III. Who to commence the proceedings. IV. Further liability of overliolding tenants. V. Tenants at will and by siiflferauce. Consequences of holding over. Upon the determination of the tenancy, the land- lord is entitled to receive the fall and complete posses- sion of the demised premises from the tenant, who must, therefore, deliver up to his landlord the quiet and peaceable possession thereof, and if there be an under-tenant in possession, to whom the tenant has let the whole or part of the premises, the tenant must get him out, or the possession of the under-tenant will be regarded as the possession of the tenant, and the latter may be held liable for the consequences (Harding w. Crethorn, 1 Enp. 57 ; Ibbs «. Richardson, ^ A. & E. 849 ; Bacon «. Brown, 9 Conn. 834) ; and tlie landlord may remove the under-tenant, so holding over, by sum- mary proceedings against the tenant, making the under-tenant a party, or the landlord may, at his option, treat the holding over by the under-tenant, as implying a new hiring by the tenant, upon the terms and conditions specified in the former lease (Digby «. Atkinson, 4 Camp, at p. 278 ; Brewer b. Knapp, 1 Pick. 333 ; Ellis xi. Paige, U. 43 ; Frouty a. Wood, 2 Eill (S. C), 367 ; Moore v. Beasley, 3 Ham. 294 ; LAW OF SUMMARY PEOCEEDINGS. 231 Diller v. Roberts, 13 8. & B. 60 ; Bacon «. Brown, 9 Conn. 834 ; Darril v. Stevens, 4 MeCord. 59 ; AVitt c. The Mayor, 5 lioM. 248 ; Hunt v. Wolfe, 2 Dalp, 298 ; Conway «. Starkweather, 1 Z)e?z. 113) ; and the Court of Appeals in Schuyler v. Smith (51 i7. Y. 309), hold that where a tenant, for one or more years, holds over after the expiration of his term, the landlord has the option to treat him as a trespasser or as a tenant for another year upon the terms of the prior lease, so far as appli- cable, and the right of the landlord to elect to continue the tenancy is not affected by the fact that the tenant refused to renew the lease, and has given notice that he has hired other premises, and that it is not in tile power of the tenant alone to throw off the character thus imposed upon him. II. The cases contemplated bp the statute. The statute in regard to holding over, only contem- plates cases in which the term has expired by lapse of time, and not by forfeiture for breach of conditions (Oak- ley w. Schoon maker, 15 Wend. 226 ; Beach v. Nixon, 9 N. Y. 35); and it was accordingly held in Beach ». Nixon {supra), that where a lease contains a clause, that in case of a violation of any of its conditions, the relation of landlord and tenant, at the option of the former, shall wholly cease, and the landlord shall be entitled to, and receive immediate possession of the premises, under the statute for holding over after the expiration of the term, without any notice other than by the usual summons, that default in the payment of rent does not constitute such a holding over as to authorize summary proceedings to recover the premises under the statute referred to, and that such a clause creates a condition only, and not a conditional limitation, and that the estate is not absolutely determined by the breach ; 232 LANDLOED AND TENANT. but in Miller v. Levi ( 44 N. T. 489), it was held that a provision in a lease that the lessor may " terminate the lease at the end of any year, by giving sixty days' pre- vious notice, in case he should sell, or desire to re- build," is not a condition, but a limitation, and the term expires by force of a sale and notice in sixty days thereafter, and without any further act on the part of the lessor, and if the tenant retains possession after the sixty days elapse, this is such a case of holding over after the expiration of the term, within the provisions of the Revised Statutes, as will give jurisdiction in summary proceedings for his removal. Under an agreement to quit on notice of ten days, it has been held that the date on which the notice is given must be excluded. When certain leases expire. The custom of the place determines whether a lease of premises from May 1, in one year, to May 1, in the succeeding year, includes or excludes the first day (Wilcox V. Woods, 9 Wend. 346), but a lease for years to end on May 1, expires at noon of that day, but a lease from a day named to May 1, expires on midnight on April 30 (The People ex rel. Elston «. Kobinson, 39 Barb. 9) ; and where A executed to B a lease of certain premises for one year, containing a clause in these words: " B to have the privilege to have the premises for one year, one month and twenty days longer, but if he leaves he is to give four months' notice before the expiration of this lease, it was held, that the lease created a terra for the full period of two years, one month and twenty days, defeasible at the election of the tenant, after one year, by giving notice of his intention to leave the prem- ises, four months previous to the expiration of the year (Cretieii ». Doney, 1 N. Y. 419 ; and see House «. Burr, 24 Barb. 525) ; and under a lease for a certain term yielding and paying a certain rent, and, at the election LAW OF SUMMARY PEOCEEDIJTGS. 233 of the tenant, for a further term, yielding and paying an increased rent, the election of the lessee to hold for the additional terra at the increased rent may be infer- red from his continuing to occupy the premises and paying rent for two quarters at the increased rate, with- out proof of any formal election or notice to the lessor at the time of the expiration of the first term, and the court in so deciding said : " The provision in the lease is not a mere covenant of the plaintiff for renewal ; no formal renewal was contemplated by the parties. The agreement itself is, as to the additional term, a lease de futuro requiring only the lapse of the preceding term and the election of the defendant to become a lease in presenti ; all that is necessary to its validity is the fact of election (Kramer v. Cook, 7 Gray {Mass.) at p. 553 ; and see ante, pp. 27, 28, 29). Without the landlord's premission. The statute provides that the holding over of the tenant must be without the permission of the landlord (§ 28 subds. 1, 2, ante., p. 184), but this provision evi- dently contemplates a permission given under circum- stances that make it irrevocable, and such as in law is tantamount to and possesses the [elements of a valid contract, so as to bind the parties to it. III. Who to commence the proceedings. As a rule proceedings under this statute should be commenced by the landlord, or some one on his behalf, or by the legal representatives or assignees of the land- lord, entitled to possession of the demised premises. And where a landlord prior to the expiration of an existing tenancy, has let premises to another, the ques- tion presents itself, whether the proceedings ought to be 30 234 LANDLORD AND TENANT. commenced by the landlord, or by the tenant entitled to possession under the last demise. The question in- cidentally came up in the commission of appeals, in the matter of the application of Charles G. Miller, land- lord, V. Emanuel Levi, tenant (44 iV. T. 489), in which it appeared that the landlord had sold the reversion, con- ditioned upon the delivery of possession to the vendee, and the court held, that the legal title not having ac- tually passed, the relation of landlord and tenant was not terminated, and that proceedings to dispossess were properly brought in the name of the original lessor, and the court (per Hunt, Com'r), says: "There is no foundation for the objection that the relation of land- lord and tenant did not exist. The relation was estab- lished by the express agreement of the parties in writ- ing. The plaintiff remained the owner of the premises. Although he had made a contract of sale with Alexan- der & Black, the sale had not been consummated by the delivery of the deed. Indeed, the sale was condi- tional upon the delivery of possession, and the vendees refused to accept the deed or to execute their mortgage, until the possession of the premises was delivered to them. Some of the cases intimate that on the occurrence of a sale, this relation exists between the tenant and the purchaser, and that proceedings under this act may be instituted by the latter. JS'one of them, however, inti- mate that the proceeding may not be in the name of the original lessor, he still retaining the legal title (citing Gardner v. Keteltas, 3 Hill, 330 ; Bird sail v. Phillips, 17 Wend. 464). It certainly seems to be the correct principle that the possession of property should be re- turned to the original parties from whom it was ob- tained, if they remain the landlords, and as such de- mand it, particularly where, as in the case above cited, they are under agreement to give the vendee or new tenant actual possession. LAW 01* StrMMAET PEOOEEDINGS. 235 IV. Further liability of overJiolding tenant — Increased rent after notice. In Despart v. Walbridge (15 N. 7. 374), the ten- ant being notified by the lessor's assignee that if he held over, he must pay an increased rent, was held to have assented thereto by merely continuing to occupy after his lease expired (see also Hunt v. Bailey, 39 Mo. 257 ; Adriance n. Hafkemeyer, Id. 134 ; Borril v. Stephens, 4 McQord, 59 ; McKinney n. Peck, 'mill. 174 ; Bennett ». Ireland, Ellin, B. & E. 826). But this principle was held not to apply where a tenant succeeded a prior tenant, and agreed for a certain rent, but paid only at the rate the former tenant had paid, and the lessor was allowed to recover the balance of rent agreed to be paid (Mayor r>. Tyler, 8 Q. B. 95). V. Tenancies at will and ty sufferance. The character of these tenancies is fully discussed at p. 10 {ante), and the manner of terminating them is stated at pp. 15, 16 {ante). Upon the subject of notice to tenants by sufferance, the commission of appeals held in Smith v. Littlefield (51 N. J. 539), that a tenant who holds over a definite term for a brief period, without the consent of the land- lord, does not thereby become tenant by sufferance, and is not entitled to notice to quit before the commence- ment of summary proceedings or the bringing of an action to recover possession. That to entitle him to notice, the holding over must be continued for such a length of time and under such circumstances as to authorize the implication of assent upon the part of -236 LANDLORD AND TENANT. the landlord. Accordingly, -where it appeared that the defendant entered into possession of certain premises under a lease, which expired April 18, 1865, and held over without the permission of the plaintiff, his' land- lord, until June 18, when the action was commenced to recover possession, and no notice to quit was served, it was held, that no notice was necessary, and that the plaintiff was entitled to recover. Land sold nnder execntion. The application for process to dispossess in these cases may be made by any one having title — ^it is not confined to the purchaser at the sale (Brown v. Betts, 13 Wend. 30), and the proceedings may be had against the servant or agent of the debtor, or against a third person who entered in possession under title derived from the debtor subsequent to the attaching of the lien of the judgment under which the property was sold (Hallenbeck •». Grarner, 20 Wend. 22). Where a tenan- cy at will exists, and the landlord, whose interest in the estate has been sold under an execution, executes a quit claim to the purchaser, who subsequently ob- tains title under the sheriff's sale, the tenancy is not determined so far but that the purchaser may proceed to obtain possession under the statute respecting sum- mary proceedings to recover the possession of land, and the purchaser was entitled to proceed without the landlord's deed (Birdsall v. Phillips, 17 Wend. 463). liAW OF STJMMAET PJBOCEEDiNGS. 237 CHAPTER XXVIII. THE LAW AND PRACTICE ON STJMMAET PEOCEEDINGS — Continued. I. The affidavit — its requisites. II. The form of the affidavit. I. The affidamt and Us requisites. I The affidavit upon wMcli summary proceedings are to be commenced should be prepared with great strict- ness, and every fact necessary to give jurisdiction should be distinctly alleged (Campbell v. Mallory, 22 How. 183 ; Hallenbeck v. Gardner, 20 Wend. 22 ; Powers v. Witty, 42 How. 352). It should make out a plain, direct, and full case, and not be uncertain or contradictory (Wiggin V. Woodruff IQBarh. 4.74. ; 22 How. 183 ; 24 Barb. 438 ; 42 How. 353 ; 43 Barb. 168, aff'd in 38 N. Y. 451 ; 6 Hill, 314 ; 5 How. 95), for the law will presume that the land- lord has stated his case in the most favorable manner to his own interest ; the landlord should therefore see that the facts favoring his right are fully set out, remember- ing that the affidavit must allege facts and not the evidence of facts, nor conclusions either of law or fact (Hill V. Stocking, 6 Hill. 317). In view of the impor- tance of the case last cited, it was thought advisable to insert the same in extenso, as it appears in the books. Syllabns of case. In summary proceedings to recover possession of demised premises, under 2 B. 8. 513, § 28, et seq., the preliminary affidavit of the land- lord or his agent must make out a plain case. Per Beonson, J., where the proceedings were instituted by 8., and the affidavit stated that J. demised the premises, &c. ; that he afterwards died leaving S. Ms widow ; that she became legally entitled to receive the accruing rents, 28§ tAlJ-DLOED AND tSSTAlTT. ani to have possession of the premises, without setting forth any fact ex- plaining how she became entitled; held, not sufficient to show her right to proceed. So, even though the affidavit state further that the tenant and those claiming under him have recognised the widow's right to the pre/m- ises, by paying rent to her, and by other acts. The affidavit should show, among other things, that the person in- tended to be removed is in the occupation of the premises, together with his relation to the landlord; and the summons should be directed to the occupant by name. Where the affidavit was of a holding over by W. (the lessee), or his assigns or those claiming under him or them, on which the officer issued a summons directed to W. or any other person claiming possession of the premises, and it appeared that W. was not in possession, but that the premises were occupied by H., upon whom the summons was served; held, that the proceedings were void as against H, for want of juris- diction. Keport^of the case. On April 12, 1842, William Ketchatn went before a Supreme Court commissioner at Buffalo, and made affidavit as follows: "William Ketcham of said city, agent of Sarah B. Stocking of the same place, being duly sworn, deposes and says, that on or about the 24th day of January, a. d. 1834, Joseph Stocking, in his lifetime, since deceased, leased and rented unto Nathaniel Wilgus of said city, for the term of eight years from April 1, then next, the land and premises, &c. (describing certain premises in the city of BuiTalo, and referring to the lease then in the deponent's pos- session) ; and this deponent further says, that the term granted in and by the said lease has expired ; and that the said Wilgus, or Ms assigns, or those claiming under Mm or them, hold over and continue in pos- session of said premises, without the permission of this deponent or the said Sarah B. Stocking. Deponent fur- her says, that the said Joseph Stocking departed this life on or about September 3, 1835, leaving the said Sarah B. Stocking his widow, him surviving; that after the death of the said Joseph Stocking, the said Sarah B. Stocking hecame legally possessed of the said lease, and entitled to receive the accruing rents pursuant to the terms of the said lease, and is now entitled to the LAW OP StTMMABT PBOOEEDIIirGS. 239 possession of the said premises. Deponent further says, that since the death of the said Joseph, the said Wilgus, and those claiming under Mm, have, by pay- ing rent to the said Sarah, and other acts, recognized her right to the said premises and to receive the rents thereof." Upon this affidavit the commissioner issued a sum- mons directed as follows: '■'■Ho NatJianiel Wilgus of the city of Buffalo, or any other person claiming pos- session of the premises hereinafter mentioned." The summons, after reciting part of the affidavit of Ketch- am, proceeded thus : " Therefore in the name of the peo- ple, &c., you and those claiming under you are hereby summoned and required," &c. Wilber, a constable, to whom the summons was delivered, made affidavit on the summons that he had served the same by giving personal notice thereof to Wilgus ; "also by leaving a copy thereof with Milo W. Hill, who claims possession of a portion of the premises within described^" Hill appeared and made objections to the sufficiency of the affidavit and summons, which were overruled by the commissioner ; and such proceedings were further had that Hill was put out of possession by virtue of a war- rant afterwards issued. He thereupon removed the proceedings into this court by certiorari. J. B. Lathrop, for Hill. B. S. Spalding, for S. B. Stocking. By the Oouet.— Beonsobt, J.— The affidavit of Ketcham was not sufficient to give the commissioner jurisdiction. It was not a proceeding to remove Wilgus, the lessee, for he was not in possession. But the object was to remove Hill, who was in possession, and who has in fact been removed, and yet he is not named in the affidavit. The allegation is, that "Wilgus, or his assigns, or those claiming under him or them 240 LANBLOED AND TENATSTT. hold over." Upon this a roving commission was issued to summon Wilgus, "or any other person claiming possession of the premises." It was thus re- ferred to the constable to determine who was the proper party ; and he returned, that he had served the sum- mons by delivering a copy of it to Hill, "who claims possession." This is the first mention of Hill as the party intended to be affected by the proceeding. By the statute, any tenant or lessee, and the assigns, under- tenants, or legal representatives of such tenant or lessee, may be removed (2 R. S. 513, § 28). Unless the party is absent, the sum mons is to be served ' ' by delivering to the tenant to whom, it shall he directed, a true copy thereof, and showing him the original" {Id. § 32). The affidavit should have stated that Hill was in possession, and shown his relation to the landlord. And the sum- mons should have been directed to him by name. But instead of that, the power of determining who was the proper party was in effect delegated to the constable. It will never do to sanction such a practice in these summary proceedings to put a man out of the possession of real estate. The affidavit was also bad for another reason. It does not show that Mrs. Stocking was the landlord or lessor (2 R. S. 513, § 29). The allegation is that Joseph Stocking was. the lessor, and that he died in 1835, leaving Sarah B. Stocking his widow. It was not the widow, but the heir of Joseph Stocking, who was entitled to the reversion. There is a further allega- tion that Mrs. Stocking "became Ze^'aZ^?/ possessed of the said lease, and entitled to receive the accruing rents, &c., and is now entitled to the possession of the said premises." But how did she become entitled? The affidavit says, "legally." That is not swearing to a fact, but to the law ; and it is quite possible the depon- ent may be mistaken about that, for the only facts which he states are, that the lessor is dead, and Mrs. Stocking is his widow. The affidavit should have shown that she was the legal representative of the lessor, by stat- LAW OP SUMMARY PROOEEDIWaS. 241 ing facts which would make out that relation, to wit, that she was assignee, heir, or devisee. Unless this is required, the occupant maybe termed out of possession by a stranger. He has the right to deny any or all of the facts on which the summons issued, and have a trial by jxiry {Id. 514, § 34). This privilege is not worth much, if the moving party may swear to the law, with- out giving the facts on which his title depends. The affidavit concludes by stating that " Wilgus, and those claiming under him, have, by paying rent to the said Sarah and other acts, recognized her right to to the said premises." This is subject to two objections. 1. It is not a statement of facts, but of evidence. It does not give her title, but onlj^ alleges that she has evidence tending to make out a title. 2. There is no allegation that Hill had ever recognized her title in any 'form. There is neither fact nor evidence against him. When one man wishes to put another out of the pos- session of a dwelling or a store, upon an affidavit, and a notice of two hours — the time allowed to Hill — it is not too much to require that he shall make out a plain case in the preliminary affidavit ; especially as he is allowed to be his own witness. These summary pro- ceedings must be carefully watched, or they will be turned into the means of working injustice and oppres- sion. Proceedings reversed. This case illustrates the danger of alleging conclu- sions instead of facts. It will be observed that the affi- davit stated that J. demised the premises, &c., that he afterwards died leaving S. his widow, that sTie became le- gally entitled to receive the accruing rents, andto have possession of the premises, without setting forth any fact explaining how she became entitled ; and that it was held, not sufficient to show her right to proceed, even though the affidavit stated further that the tenant and those claiming under him had recognized the widow's 24-3 LANDLOED A.ND TENANT. rigM to the premises hy paying rent to her^ and hy otJier acts {lb). These statements were mere inferences or conclusions of the aiflant, and the facts themselves should have been alleged sothatthejudicial mind might have legally determined from the facts stated whether the applicant's supposed right to maintain the proceed- ing was well founded in law. It should also plainly ap- pear from the afBdavit in order to give the magistrate jurisdiction, that the conventional relation of landlord and tenant created by agreement and not by operation of law, exists between the parties, specifying which is landlord and which is tenant (Benjamin v. Benjamin, 5 N. Y. 383 : Mitchell v. Simpson, 28 N. Y. 55 ; Roach v. Cosine, 9 Wevd. 227 ; Sims «. Humphrey, 4 Den. 185 ; The People v. Bigelow, 11 How. Pr. 83 ; Wright v. Mosher, 16 How. 454 ; Russell v. Russell, 32 Id. 400 ; . Deuel ». East, 24:, Barb. 438; Buck v. Binninger, 3 Id. 391 ; People v. Matthews, 43 Id. 168, affirmed in 38 N. Y. 451 ; People v. Annis, 45 Barb. 304 ; Hallen- beck V. Garner, 20 Wend. 22) ; and where it appeared upon the face of the affidavit that the person described as tenant entered into possession of the land as a pur- chaser, and refused to pay the purchase money, it was held that the statute did not embrace such a case, as there was no relationship of landlord and tenant ex- isting between the parties (The People ex rel. Williams V. Bigelow, 11 How. 83). The act provides {vide § 29, ante, p. 186), that any landlord or lessor, his legal representatives, agents, or assigns, may make oath in writing of the facts which, according to the preceding section, authorize the re- moval of a tenant, describing therein tlie premises claimed, and may present the same to one of the officers authorized to entertain such proceedings, and although the affidavit may be made by the agent of these respective parties {Id.), yet the agent must swear affirmatively that he is such agent ; merely describing himself as such is not sufficient (Cunningham v. Goe^ tAW OF SUMMAKT PROCEEDINGS. 243 let, 4 Den. 71 ; and see 7 Hill. 177 ; 1 B.ow. 75 ; and 1 Den. 662) ; and if the proceeding be for non-payment of rent, the aflBdavit need not state the date nor dura- tion of the Jease (The People «. Teed, 48 Barh. 424 ; S. C. 33 Row. 238). The affidavit should show with reas- onable certainty" that tlie tenant is in possession of the premises (Smith v. Haestis, Hill & Den. Sup. 236 ; Deuel V. Rust, 24 Barh. 438; Rogers v. Lynd, 14 Wend, 172) ; and where the proceedings are against several persons, it should distinctly show which of the persons proceeded against is tenant, and which of them are under-tenants (Wiggins. Woodruff, 16 Barh. 474 ; S. C. 11 JSf. J. Leg. Obs. 89), and should allege the holding over to be without permission (Campbell i\ Mallory, 22 Bow. 183 ; Prouty v. Prouty, 5 How. 81, 95 ; 20 Wend. 103) ; and must show that the premises are within the jurisdiction of the officer before whom the proceeding is instituted (The People v. Boardraan, 4 Keyes, 59), and must describe the premises intelli- gently (Campbell v. Mallory, 22 How. 183). Itiglits and remedies of grantees, assignees, and representatives. As to the rights and remedies of grauteea and assignees, vide pp. 76, 98 {ante), and as to wlio are assignees, and as to their liabilities, liide pp. 83, 84, 85 {ante). Who are legal representatives. As to who are the legal representatiTes coptemplated by the stat- ute, vide p. 75, 76, ante, title Bemidies of Executors; and the affidavit in proceedings brouglit by heirs-at-law or executors should state fully all tlie facts, giving them the title and right of possession, and ad- ministrators can not maintain summary proceedings unless the title of their intestate was of a leasehold estate only, in which case that fact should be stated in the affidavit {vide ante, pp. 75, 76, 96, 314, 315). Sufficiency of affidavit. Tenancy at sufferance. As to sufficiency of affidavit in the case of a tenancy at sufEerance, see The People v. Ulrich (3 Abb. Pr. 38). Description of premises. Runnington on Ejectment, at page 121, says : A learned judge is reported to have said, that " he never 244 LANDLORD AWD TENANT. coTild understand the manner of reasoning so often urged, that the description must necessarily be so cerr tain, that the sheriff might be exactly able to know, without any information from the plaintiff, of what to give possession, which was not true ; for such pre- cision was not necessary in ejectment." Thus an eject- ment was sustained for an orchard, because it is a word of certain signification ; though in a prcecipe it must be demanded by the name of a garden ; and be- ing well enough understood, the sheriff might with certainty deliver it in execution. So, and for the same reasons, for a stable and a cottage. Of a house, is good, though in the prcecipe it ought to be demanded by the name of a messuage. The ejectment is an action of trespass in its nature, and trespass has been uni- formly maintained, for breaking or entering a house. Besides, the import of the word domus is well under- stood in the law ; for instance, in action of waste, wherein it may be recovered, besides damages. So, of a chamber in the second story of a house, has been held good, there being certainty enough to direct the sheriff in the execution. In that case it was said, an ejectment de una rooma, has been adjudged good. It has even been held that an ejectment for part of a house in A, is well enough. But an ejectment for a Mtchen has been determined to be bad ; for though the word be well understood in common parlance, yet because any chamber in a house may be applied to that use, the sheriff hath not certainty enough to direct him in the execution ; and the kitchen may be changed be- tween judgment and execution. So it lies not of a close, because that is of uncertain extent ; nor will it aid the declaration, it is said, though the close be called by a particular name ; because that also leaves the extent of it so uncertain, that the sheriff can not tell the cLuantity of land to deliver in execution. For the same reason, it lies not of a piece of land. Nor for the third part of a close, or the fourth part of a tiAW OF SUMMARY PROCEEDINGS. 24b meadow, without setting forth the particular contents, or number of acres. And the number of acres should be expressed with certainty ; and therefore it is said that an ejectment for forty acres of land, by estimation, was not good. And though the number of acres contained in the close, or piece of land, should be mentioned in the declaration, and be set forth as belonging to a messuage for which the ejectment is also brought, yet even tTiat was held too general ; because the nature and quality of the land was thereby left uncertain, so that the sheriff still must be at a loss what to deliver pos- session of, whether meadow, pasture, &c. These rules in actions of ejectment may by analogy throve some light upon the question of the particularity required in describing premises claimed in summary proceedings^ and the genera:l rule may be said to be that the descrip- tion of the premises should be stated if possible with sufficient certainty to enable the officer to deliver pos- session of the premises claimed without requiring infor- mation outside of the papers. In cases where real estate has been sold under execution, tlie facts must be alleged with particularity (Hallenbeck v. G-arner, 20 Wend. 22). The' affidavit may be sworn to before any person authorized to administer an oath. II. Forms of aj^aavits in summary proceedings. [Fm'm iVb. 1.] Landlord's affidavit on proceeding for non-payment of rent on personal demand. State of New York, city and county of New York, ss. John Doe of said city being duly sworn, says, that he is the land- lord of the premises hereinafter mentioned, and that, as such, he en- tered into an agreement with Richard Roe as tenant, and that by the terms of the said agreement the said tenant hired from deponent as such landlord, the five rooms on the second floor in the dwelling situated number 1 Broadway, in the city of New York, and he, the said tenant, 246 LANDLOED AND TENANT. in and by the said ngreement, undertook, and promised to pay this de- ponent, as rent, the sum of fifty dollars per month, payable monthly in advance, for the use and ocoupation of said premises ; that on the 1st day of November, 1875, there was due, under and by virtue of said agreement, the sum of fifty dollars for one month's rent of the premises before described ; to wit: from the 1st day of November, 1875, to the 1st day of December, 1875 ;* and tliis deponent further says, that he has demanded the said rent from the said tenant, since the same became due, and that the said tenant has made default in the payment thereof, pursuant to the agreement under wbicli the premises are held ; and that the said tenant f holds over, and continues in pos- session of the same, without the permission of the landlord, after de- fault in the payment of the rent as aforesaid. JOHN DOE. Sworn before me, this 2nd day of ) November, 1875. j John Smith, Notary Public N. Y. Co. [Form No. 2.] Affldarit by agent of liindlord. State of New York, city and county of New York, ss. Thomas Jefferson being duly sworn, says that he is the agent of John Doe in respect to the premises hereinafter mentioned, and ttiat the said John Doe is landlord of said premises, and that the said landlord entered into an agreement with Richard Roe as tenant, by the terms of which the said tenant hired from the said landlord, the five rooms on the second floor in dwelling situated No. 1 Broadway, in the city of New York, and he the said tenant, in and by the said agreement, undertook and piom- ised to pay the said landlord as rent the sum of fifty dollars per month, payable in advance, for the use and occupation of said premises; that on the 1st day of November, 1875, there was due, under and'by virtue of said agreement, the sura of fifty dollars for one month's rent of the premises before described, to wit: from the 1st day of November, 1875, to the 1st day of December, 1875, and this deponent further * Wliere the demand is not personal, but is made by the service of a three days' notice, insert the following statement of the fact of service in the atfidavitat the place indicated by the star (*), viz. : — " by the service of a notice in writing, on the day of 1875, pursuant to the statute, requiring the payment of the said rent, so due as aforesaid, within three days thereafter, or the possession of said premises, and which notice was served upon the said tenant by {This notice may he seroed in the manner prescribed for the sereiee of the sum- mons in the 32nd section of the act, vide page 18T, ante, and for form of proof of service, see chapter XXIX., post, and the landlord'' a affidavit should show the particular manner of service, and as to form of three days' notice, vide ante, p. 334). t Where there are under-tenants in possession, the landlord's aflSda- vit, in alleging the holding over of the tenant, should state "and that the said tenant, and John Jones and Mary Smith, as vnder-tenants, hold over and continue in possession, &c.," as in the landlord's affidavit. LAW OF SUMMARY PEOOEEDIKGS. 247 says, that he has demanded the said rent from said tenant, since the same became due : and that the said tenant has made default in the payment thereof, pursuant to the asireement imcier v/hich the said promises are held ; and that the said tenant holds over and contiinies in the possession of the same, without tlie permission of the landlord after deliault in the payment of the rent as aforesaid. „ . , f .u n A A +■ 1 THOMAS JEFPKRSON. Sworn to before me, the 3nd day oi / November, 1875. J John Smith, Notary Public N. Y. Co. When the affidavit is made by the agent he must swear affirmatively that he is such agent ; merely de- scribing himself as such is not sufficient (Cunningham V. Goelet, 4 Den. 71 ; and see 7 ffill, 177 ; 1 How. 75 ; 1 JDen. 662). [Form No. 3.] AffidaTit of laudlord on expiration of tenant's term. State of New York, city and county of New York, sa. John Doe, being duly sworn, doth depose and say, that he is the landlord of the premises hereinafter described, and tliat on or about the 1st day of October, 1875, he rented unto Richard Roe, the second floor of premises. No. I Broadway, in tho city of New York, for the term of one month commencing ou the 1st day of October, 1875, and ending on the 1st day of November, 1875, which said terra has expired, and that the said tenant holds over and continues in possession of the said premises, without the permission of the said landlord, after the ex piration of the tenant's term therein. TOHN DOE Sworn before me, this 3nd day of ) November, 1875. ( John Smith, Notarv Public N. Y. Co. [FormM. 4.] Like affidavit in case of tenancy at irill. State of New York, city and county of New York, ss. John Doe, being duly sworn says: That on or about the 1st day of September, 1875, he let and rented unto Richard Roe, during the will and pleasure of deponent, the house and premises known as No. 1 Broadway, in the city of New York. And that the said Richard Roe, has held and occupied the said premises, as the tenant at will of this deponent, until the expiration of such tenancy, as hereinafter men- tioned. And deponent further says that he caused notice in writing to be served on the said Richard Roe, in due form of law, on the 1st day of October, 1875, requiring the said Richard Roe, to remove from the said premises on or before the 1st day of November , 1875. That the time within which the said Richard Roe was required so to re- 248 LANDLORD AND TENANT. move, has expired; and that the said Richard Roe holds over and continues in possession of the said premises, after the expiration of such time, without the permission of the deponent, his landlord. JOHN DOE. Sworn to before me this 2nd day of ) November, 1875. j Danibl T. Robbetsok, Notary Public N. Y. Co. See form of one month's notice to quit, p. 16, ante. [Form No. 5.] Like affldavit in case of sale under execution. State of New York, city and county of New York, ss. John Doe,beiug duly sworn, says : That at the time of the sale herein- after mentioned, Richard Roe was the owner, and in possession of the real estate and premises known as No. 1 Broadway in the city of New York. That on the 1st day of June, 1874, this deponent recovered a judgment against the said Richard Roe, in the Marine Court of the city of New York, for $500 damages and costs. That the said judgment was duly made and given, and that on the same day, a transcript of said judg- ment was duly docketed in the ofiBce of the clerk of the city and county of New York ; and that thereafter and on the same day, an execution upon the said judgment was duly issued to the sheriff of the city and county of New York (the county within which the said premises were situated), commanding the said sheriff to collect said judgment out of the personal property of the judgment debtor within his said county, and that if suiHcient personal property could not be found, then out of the real property of said judgment debtor, in his said county, and that the said sheriff, being unable to find sufficient personal property of the said debtor, levied upon the real estate and premises hereinbefore mentioned, and that after duly advertising the same for sale, in the manner and in the form, and for the time pre- scribed by the statute in such case made and provided, the said sheriff, on the 31st day of July, 1874, sold the said real estate and premises, under the said execution at public auction unto this deponent for the sum of $100, that being the highest sum bidden for the same. And that the said sheriff thereupon executed unto this deponent the certificate of sale required by said statute, which said certificate was duly filed in the office of the clerk of the city and county of New York, and that thereafter, to wit, on the 25th day of October, 1875, deponent's title under such sale was fully perfected by the execution and delivery by said sheriff of the deed upon such sale, which said deed conveyed said premises to this deponent, and that the same was duly acknowledged and recorded in the office of the Register of the city and county of New York, and that after said title was fully perfected, this deponent at the said premises demanded the possession thereof from the said Richard Roe under and by virtue of said title, and that the said Richard Roe refused to surrender such possession, and that he holds over and continues in possession of the said premises after the perfection of such title, under said execution LAW OF SUMMAKT PEOCEEDINGS. 249 sale and after such demand aforesaid, without permission of this de- ponent, who is entitled to the possession thereof. JOHN DOE. Sworn to me this 1st day of ) November, 1875. \ Daniel T. Robbbtson, Notary Public N. Y. Co. [The demand for possession may be made in writing.] [Form No. 6.] Like alHcIaTit in case of sale under forclosure of mortgrage. State of New York, city and county of New Yorlr, ss. John Doe, being duly sworn says ; That at the timeof theexecution of the mortgage hereinafter mentioned, Richard Roe was the owner in possession of the real estate and premises known as No. 1 Broadway, in the city of New York. That on the 1st day of June, 1874, the said Rich- ard Roe executed, acknowledged, and delivered unto this deponent, an instrument under his hand and seal, whereby he granted and con- veyed the said premises unto this deponent as security for the pay- ment of $1,000 and interest within six months thereafter. That at the expiration of said term, default was made in the payment of said prin- cipal sum and interest, whereupon this deponent commenced an action, in the Supreme Court of the state of New York, in and for the city and county of New York, in which said action such proceedings were had, that after the said mortgagor and all persons having subsequent liens or claims upon or to said premises were brought before the said court as parties to said action, judgment was on the 3nd day of Jan- uary, 1875, duly made and given in favor of this deponent as plaintifE therein against the said defendants therein for the forclosure and sale of said property, by the sheriff of the city and county of New York. That thereafter and on the 10th day of February, 1875, the said sheriff of the city and county of :New York, under and pursuant to said judgment sold the said property at public auction unto this deponent for $100, he being the highest bidder, and that being the highest sum bid- den for the same, and that thereafter and on the 1st day of March, 1875, the sale under said judgment was perfected by the execution and de- livery by said sheriff, of a deed of said premises to this deponent, con- veying to him the title to said premises in fee simple, which deed was duly recorded in the office of the Register of the city and county of New York, and that this deponent after said title was fully perfected demanded possession of the said premises from said Richard Roe, under and by virtue of said title, and that the said Richard Roe re- fused to surrender such possession, and that he holds over and con- tinues in possession of the said premises after the perfection of said title under said foreclosure proceedings, and after such demand afore- said, without permission of thisdepondent, who is entitled to the pos- session thereof. JOHN DOE. Sworn to before me this 1st day of ) November, 1875. J Daniel T. Robertson, Notary Public N. Y. Co. [The demand for possession may be made in writing.] 33 250 LANDLORD AND TENANT. [Of course, these various afladavits must be drawn with, reference to the peculiar facts of each case, and these forms are merely given as outlines to aid in such preparation.] LAW OF SUMMARY PROCEEDINGS. 251 CHAPTER XXIX. The law and practice on summary proceedings- . Continued. — the summons and its service. I. The summons. n. Its form. HL The service. rV. Proof of service. The sumTnons. The statute provides that on receiving the necessary affidavit, the magistrate shall issue his summons, de- scribing the premises of which possession is claimed, and requiring any person in possession of said prem- ises, or claiming the possession thereof, forthwith to remove from the same, or to show cause before the said magistrate, at a certain time to be named, why pos- session of said premises should not be delivered to the applicant (§ 30 Id. ante, p. 186). The statute does not prescribe any particular form of summons, and imposes only the above requisities. It is customary, however, for the magistrate to describe his office, so as to show on the face of the summons that he is one of the magis- trates authorized to issue it, although a misdescription of his office was in one case disregarded (McCarthy v. Noble, 5 Leg. Obs. 380). The summons is process, and must be issued in the name of the people (2 JEdm. E. S. p. 285, § 8), and the same statute, § 9, provides that "all writs, process, proceedings, and records in any court within this state, shall be in the English language (ex- cept that the proper and known names of process, and technical words, may be expressed in the language 252 tAKDLOEI) ANi) TENANT. heretofore and now commonly used)j and shall be made out on paper or parchment, in a fair, legible character, in words at length, and not abbreviated ; but snch ab- breviations as are now commonly used in the English language may be used, and numbers may be expressed by Arabic figures, or Roman numerals, in the customary manner." It has been customary, and is prudent, if not nec- essary, to recite, in the summons all the jurisdictional facts. The summons must be directed to the tenant by name (Hill v. Stooking, 6 Hill, 316 ; Deuel v. Rust, 24 Barb. 439 ; 30 Wend. 23), and a mere clerical error in spelling it will be disregarded (McCarthy «. Noble, 5 Leg. Obs. 380), and where the proceeding is against several persons, it should like the affidavit designate which of them is tenant, and which of them are under- tenants (Wiggin V. Woodruff, 16 Barh. 474), and must be returnable before the magistrate, within the territorial limits of his jurisdiction. Time of return. If the proceeding be for holding over after the ex- piration of the term, the magistrate, if the summons be issued on the day the term expires, or the day next thereafter, may direct such summons to be made re- turnable on the same day, at any time after twelve o'clock noon, and before six o'clock in the afternoon ; in other cases it must be made returnable within such time as may be reasonable, not less than three nor more than five days {vide § 30, ante, p. 186, 30 How. 93). LAW OF SUMMARY PR60ES!DING8. 253 II. The form of summons. Snuiinons — Non-payment of rent on landlord's affldaWt. [Form No. 7.] Summons. — Non-payment of rent. — Landlord. — Personal demand. To Richard Roe, tenant; and each and every person in possession of the demised premises hereinafter mentioned, or claiming the possession thereof: Whereas, John Doe has made oath in writing, and presented the same to me, that he is the landlord of the premises hereinafter men- tioned; and that he entered into an agreement with you, and by the terms of said agreement, you, as tenant, hired from him, as landlord, the five rooms on the second floor in dwelling situated number 1 Broadway, in the cily of New York; and that you, in and by the said agreement, undertook and promised to pay to him as rent the sum of fifty dollars per month, payable monthly in advance, for the use and occupation of said premises; that on the first day of Novem- ber, 1875, there was due, under and by virtue of the said agreement, the sum of fifty dollars, for one month's rent of the premises before described, to wit: from the 1st day of November, 1875, to the first day of December, 1875; that the said rent has been demanded of you by the said landlord, since the same became due, and that default has been made in the payment thereof, pursuant to the agreement under which the said premises are held ; and that you as tenant hold over and continue in possession of the same, without the permission of the landlord, after default in the payment of the rent as aforesaid. Therefore, in the name of the people of the state of New York, you are hereby summoned and required forthwith to remove from the said premises, or show cause before me, at the court house, southwest corner or Chambers and Centre streets, in the city of New York, on the 5th day of November, 1875, as ten o'clock in the forenoon, why the possession of the said premises should not be delivered to the landlord. Witness my hand this 2d day of November, 1875. DENIS QUINN, Justice of the District Court of the city of New York, for the First Judicial District. [Form No. 8.] Summons against tenant and under-tenants for non-payment of rent— upon affidavit of agent. To Richard Roe, tenant, and David Jones and Paul Jones, under-ten- ants, and each and every person in possession of the demised prem- ises hereinafter mentioned, or claiming the possession thereof : Whereas, John Peterson has made oath in writing, and presented ^54 LANDLORD AND TENANT. the same to me, that he is the agent of John Doe, who is the landlord of the premises hereinafter described ; and that the said landlord entered into an agreement with you as tenant, and by the terms of the said agreement, you, the said Richard Eoe, hired from him as landlord, the five rooms on the second floor in dwelling situated number 1 Broadway, in the city of New York, and that you, said tenant, in and by the said agreement, undertook and promised to pay to said land- lord the sum of fifty dollars, per month, payable monthly in advance, for the use and occupation of said premises ; that on the 1st day of November, 1875, thei-e was due, under and by virtue of said agree- ment, the sum of fifty dollars for one month's rent of the premises before described; to wit, from the 1st day of November, 1875, to the 1st day of December, 1875, that the said rent has been demanded of you, said tenant, since the same became due, and that default has been made in the payment thereof, pursuant to the agreement under which the said premises are held ; and that you, Richard Roe, as tenant, and David Jones and Paul Jones, as under-tenants, hold over and continue in possession of the same, without the permission of the landlord, after default in the payment of the rent as aforesaid. 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 re- move from the said premises, or show cause before me, at the court house, at the southwest corner of Chambers and Centre streets, in the city of New York, on the 5th day of November, 1875, at ten o'clock in the forenoon, why the possession of the said premises should not be delivered to the landlord. Witness my hand this 3nd day of November, 1875. DENIS QUINN, Justice of the District Court of the city of New York, for the First Judicial District. [Where the demand is not personal, but is made by the service of a three days' notice, the summons ought to recite the mode of demand stated in the affidavit, although not perhaps with the same particu- larity.] IFormNo. 9.] Summons for holding over, upon affldavit of landlord. To Richard Roe, tenant. Whereas, John Doe has made oath in writing, and presented the same to me, that he is the landlord of the premises hereinafter de- scribed, and that on or about the 1st day of October, 1875, he rented unto you, Richard Roe, the second floor of premises No. 1 Broadway, in the city of New York, for the term of one month, commencing on the 1st day of October, 1875, and ending on the 1st day of November, 1875, which said term has expired, and that you hold over and con- tinue in possession of the said premises, after the expiration of your term therein, without the permission of the landlord. Therefore, in the name of the people of the state of New York, you are hereby summoned and required forthwith to remove from the said premises, or show cause before me at the court-room, southwest corner of Chambers and Centre streets, in the city of New York, on LAW OF STJMMAKT PEOCEEDHSTGS. 255 the 2d day of November, 1875, at three o'clock in the afternoon, why possession of the said premises should not be delivered to the landlord. Witness my hand, this 3nd day of November, 1875, DENIS QUINN, Justice of the District Court of the city of NewYork for the First Judicial District. [Form No. 10. j Snmmons. — In case of tenancy at will. To Eichard Roe, tenant, and each and every person in possession of the demised premises hereinafter mentioned, or claiming the pos- session thereof : Whereas, John Doe has made oath in writing, and presented the same to me, that on or about the 1st day of September, 1875. he let and rented uuto you, during the will and pleasure of the said John Doe, the house and premises known as No. 1 Broadway, in the city of New York, and that you have held and occupied the said premises as the tenant at will of the said John Doe, until the expira- tion of such tenancy as hereinafter mentioned. And that the said John Roe caused notice in writing to be served upon you, in due form of law, on the 1st day of October, 1875, requiring you to remove from the said premises on or before the 1st day of November, 1875 ; that the time within which you were required to remove from said premises has expired, and that you hold over and continue in posses- sion of the same, without the permission of the landlord, after the expiration of your term therein. Therefore, in the name of the people of the state of New York, you are hereby summoned and required forthwith to remove from the said premises, or show cause before me at the court house, southwest - corner of Chambers and Centre streets, in the city of New York, on the 2d day of November, 1875, at three o'clock in the afternoon, why the possession of the premises should not be delivered to the said landlord. Witness my hand, this 3d day of November, 1875. DENIS QUINN, Justice of the District Court of the city of New York, for the First Judicial District. [H'ormlHo. 11.] Snmmons in case of sale under execution. To Richard Roe, and each and every person in possession of the de- mised premises hereinafter mentioned, or claiming the possession thereof: Whereas, John Doe hath made oath in writing, and presented the same to me, that at the time of the sale hereinafter mentioned, you were the owner in possession of the real estate and premises known as No. 1 Broadway, in the city of New York. That on the 1st day of June, 1874, the said John Doe recovered a judgment against you, in the Marine Court of the city of New York, for $500 damages and costs. That the said 256 LAHDLORI* AND TENANT. judgment was daly made and given, and that on the same day a tran- script of said judgment was duly docketed in the office of the clerk of the city and county of New York; and that thereafter and on the same day an execution upon the said judgment was duly issued to the sheriff of the city and county of New York (the county within which the said premises were situated), commanding the said sheriff to collect said judgment out of the personal property of the judgment debtor within his said county, and that if sufficient personal property could not be found, then out of the real property of said judgment debtor, in his said county, and that the said sheriff, being unable to find sufflciKnt personal property of the said debtor, levied upon the real estate and premises hereinbefore mentioned, and that after duly advertising the same for sale, in the manner and in the form, and for the time prescribed by the statute in such case made and provided, the said sheriff on the 21st day of July, 1874, sold the said real estate and premises under the said execution, at public auction, unto the said John Doe for the sum of $100, that being the highest sum bid- den for the same; and tbat the said sheriff thereupon executed unto the said John Doe the certificate of sale required by said statute, which certificate was duly filed in the office of the clerk of the city and county of New York, and that thereafter, to wit, on the 25th day of October, 1875, the title of the said John Doe under such sale was fully perfected by the execution and delivery by said sheriS of the deed upon such sale, which said deed was duly acknowledged and recorded in the office of the Register of the city and county of New York; and that after said title was fully perfected, said John Doe, at the said premises, demanded the possession thereof from you under and by virtue of said title, and that you refused to surrender such possession, and that you hold over and continue in possession of the said premises, after the perfection of said title under said execu- tion sale, and after such demand aforesaid, without permission of the said John Doe, who was entitled to possession thereof. Wherefore in the name of the people of the state of New York, yori are hereby summoned and required forthwith to remove from the said premises, or show cause before me at the court room, southwest corner of Centre and Chambers streets, in the city of New York, on the 4th day of November, 1875, at ten o'clock, forenoon, why the possession of the said premises should not be delivered to the said landlord and applicant. Witness my hand, this 1st day of November, in the year 1875. DENNIS QUINN, Justice of the District Court of the city of New York, for the First Judicial District. [Form No. 12.] Summons in case of sale under mortgage foreclosure. To Richard Roe [and to each and every person, etc., as in the preced- ing form] : Whereas, John Doe has made oath in writing, and presented the same to me, at the time of the execution of the mortgage hereinafter mentioned you were the owner in possession of the real estate and prem- ises, known as No. 1 Broadway, in the city of New York; that on the 1st day of June, 1874, you executed, acknowledged, and delivered LAW OF SUMMARY PBOOBTODIWG-S. 257 unto the said John Hoe, an instrument under your hand and seal, whereby you conveyed the said premises unto the said John Doe, as security for the payment of the sum of |1,000 and interest, witiiin six months thereafter ; that at the expiration of said term default was made in the payment of the said principal sum and interest, whereupon the said John Doe commenced in action in the Supreme Court of the state of New York, in and for the city and county of New York, in whicli said action, such proceedings were had, that after the said mortgagor and all persons having subsequent liens or claims upon or to s:iid premises were brought before the said court as parties to said action, judgment was on the 2nd day of January, 1875, duly made and given in favor of this deponent as plaintiff therein, against the said defendants therein, for the fore- closure and sale of said property by the sheriff of the city and county of New York; that tiiereafter and on the 10th day of February, 1875, the said sheriff of the city and county of New York, under and pur- suant to said judgment, sold tlie said property at public auction unto the said John Doe for $100, he being the highest bidder, and that be- ing the highest sum bidden for the same, and that thereafter and on the 1st day of March, 1875, the sale under said judgment was perfected by the execution and delivery by said sheriff of a deed of said prem- ises, which deed was duly recorded in the office of the Register of the city and county of New York, and that this deponent, after said title was fully perfected, demanded possession of said premises from you under and by virtue of said title, and that you refuse to surrender sucli possession, and that you hold over and continue in possession of said premises after the perfection of said title under said foreclosure proceedings, and after such demand aforesaid, without permission of the said John Doe, who is entitled to the possession thereof. There- fore, in the name of the people of the state of New York, you are hereby summoned and required to forthwith remove from the said premises, or show cause before me, at the court house, at the south- west corner of Chambers and Centre streets, in the city of New York, on the 4th day of November, 1875, at 10 o'clock in the forenoon, why possession of the said premises should not be delivered to the land- lord and applicant. Witness my hand, the 1st day of November, 1875. (Copy.) DENIS QUINN, Justice of the District Court of the city of New York, for the First Judicial District, [Of course, these various summonses must follow the affidavit as to the peculiar facts of each case, and these forms are merely given as outlines to aid in the preparation of the papers. ] IForm No. 13.] Endorsement npon somniong. The following is the form of endorsement required to be placed upon the copy of the summons intended for service (1868, ch. 838, § 3): 33 258 LANDLORD AND TENANT. "LAWS OF NEW YORK. Chapter 828. Act relative to BwnvmaiTy Proceedings. Passed May 19th, 1868. § 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 can not 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 pur- pose, then the person to whom such copy is delivered shall take the same to the magistrate by whom the summons is issued, at the time and place named therein, and inform him that the tenant can not be found. Every person who shall willfully violate any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon con- viction shall be punished by imprisonment for not less than thirty days nor more than one year. III. The manner of sermee. The statute prescribes the manner of service {vide § 32, ante, p. 187), and this must be literally followed in order to give jurisdiction, and an omission to show the original summons renders the service irregular (Duel V. Rust, 24 Barh. 438) , and an affidavit of service was held defective, for not shovnng that the copy was left with a person of mature age, at the last or usual place of residence of the tenant (The People v. Matthews, 48 Barh. 168), and an affidavit in proceedings against A, of service upon B, residing on the premises, A be- ing absent, is insufficient (Cameron «. McDonald, 1 Rill, 512) ; and an affidavit which alleged service on an under-tenant on the demised premises, and that the ten- ant was absent from his last and usual residence, without stating that such residence was on the demised prem- ises, was held to be insufficient to give jurisdiction (People ». Piatt, 43 Barb. 116, aff d in 88 N. T. 451), and where the service is sworn to as being upon a date prior to that of the summons itself, the variance is fatal ; it is not a mere clerical error that may be cor- LAW OF SUMMARY PBOCfiEDINaS. 259 rected after judgment, for it leaves the case without any proof as to the time of service, and if accepted, would give possible eflfect to an illegal service (The People v. Boardman, 4 Keyes, 59), and where the summons is directed to the original lessee, service upon the under- tenant in possession only is not sufficient. Service should be made upon both (Matter of Grlern, 1 How. 313). Time of seryiee. The following decision reported in The New Yorh Daily Register, October 37, 1875, is important upon the question of the time within which the summons must be served: The People ex rel. Henby A. Pkost Marvin's Safe Company and Jambs W. FOWLBE. ■ Landlord and Tenant. Centiorari to review summary proceedings under the Landlord and Tenant act. The only point made by the relator on the review was that the summons was served only two days before the day of its return. Sec- tion 2, ch. 828 of the Laws of 1868 (Session Laws, vol. 2, p. 1931), provides that "if the summons be returnable on the day on which it is issued, it shall be served at least two hours before 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 return- able." The summons in this case was issued on the 31st day of No- vember, 1874, and was returnable on the 25th day of that month. It further appeared in the case that the summons was served on the 33d day of the month, which was two days before the return day men- tioned therein. Seld, that the summons conformed to the requirements of the stat- ute, inasmuch as it was returnable in not less than three nor more than five days (§ 30, title 10, ch. 8, part 3, Hev. Stat., as amended by ch. 460 of Laws of 1851, and § 1, ch. 838, of the Laws of 1868). That the service being on the 23d, and the summons returnable on the 25th, it was clearly sufficient to satisfy the requirements of ch. 828 of the Laws of 1868, above referred to. Opinion by Davis, P.J. ; Daniels and Donohub, JJ. , concurring. IV. Proof of service. The proof of service is by affidavit, as indicated below. A form is given for each of the three different 260 LABDLOfe0 A WD TENANT. modes of services allowed by the statute. It has been held however that a constable's oral evidence of the service of the summons is admissible before the justice, although the constable may have made an insufficient return by affidavit (Robinson v. McManus, 4 Lansing, 380). Proof of personal seryice. City and county of New York, ss. of the said city, being duly sworn, says that he did, on the day of 187 , at o'clock and minutes in the noon, at No. street, in the said city, serve the within sum- mons on the tenant therein named, by delivering to h personally, a true copy thereof, and at the same time showing h the original, and that Chapter 828, Laws of 1868, was endorsed on the copy summons so served. Sworn before me this ( day of 187 \ Notary Public N. T. Co. [As to the facts required to be stated in this form, see § 32, subd. 1, p. 187, ante.'] Proof of service on person of mature age. City and county of New York, ss. of the said city, being duly sworn, says that he did, on the day of 187 , at o'clock and minutes in the noon, serve the within summons on the tenant therein named, by leaving a true copy thereof, at his place of residence, No. street in the said city, with who is a person of mature age, who, at the time of the said service, was on, and who resides on the said premises, at the same time showing h the original, the said tenant being at the time absent from h said place of residence, and that Chapter 838, Iiaws of 1868, was endorsed on the copy sum- mons so served. Sworn before me, this ) day of 187 \ Notary Public N. Y. Co. [As to the facts required to be stated in this form, see § 32, subd. 2, p. 187, ante.] liAW OP SUMMAKY PEOOtiEDIT^GB. 361 Proof of service npon conspicions part of premises. City and county of New York, ss. of said city and county, being duly sworn, says that he did, on the day of 187 at o'clock and minutes in the noon, serve the within summons on the tenant therein named, by aifixing a true copy thereof upon a conspicuous part — to wit, the entrance door — of the said demised premises in the within affidavit and summons described ; that at the time of said service the said tenant was absent from h last or usual place of residence ; that he could not find any person of mature age at such place residing on the premises ; that he could not find the said tenant upon the said demised premises; and further, that he could not find upon said demised premises any person of mature age, residing there- on or connected therewith by employment in any business for which the said premises are used, on whom he could serve the same, and that Chapter 838, Laws of 1868, was endorsed on the copy summons so served. Sworn to before me, this ) day of 187 \ Notary Public N. Y. Co. [As to the facts required to be stated in this form, see § 32, subd. 2, p. 187, ante.] 262 LANDtOED AND TENANT. CHAPTER XXX. THE LAW AND PRACTICE ON SUMMARY PROCEEDINGS- Continued. Feactioe upon eetuen dat. I. Return of the process. n. Objections to sufficiency of papers. ni. Filing counter affidavit. IV. Amendments in these proceedings. V. Demanding trial by jury. "VI. Adjournments. Beturn of the process. The landlord must see that the process is returned to the justice on the day of return with the proper re- turn of service endorsed thereon, the forms of which are given on pp. 259, 260 {ante). If the return should prove defective, it may be amended at any time before judgment, and in one case the oral evidence of the con- stable was allowed to cure imperfections in his written return, and it has been held that the refusal of a de- fendant in an action in a justice's court, to appear ill the action, after objections taken by him to the jurisdic- tion of the justice have been overruled, does not deprive the justice of the power afterwards to allow the amend- ment of the constable's return of the summons. The power of amendment does not depend upon the appear- ance of the defendant in the suit (Perry «. Tynen, 22 Barb. 137). II. Objection to sufficiency of papers. The policy of the law seems to require that objec- tions, particularly to matters of form, should be pre- LAW Ol' SUMMARY PROCEEDINGS. 263 sented at the first opportunity, in order that the objec- tion may be cured if it be in respect to a matter capable of amendment, and if it be a matter not susceptible of amendment, that the landlord may, upon being informed of his error, withdraw his proceeding, and commence de novo. A striking illustration of the rule is fur- nished by the case of The People on the Eelation of McGruire «. Ulrich (2 Abh. Pr. 28), in which the New York Supreme Court, at general term, went to the ex- tent of saying that even the failure to appear before the justice on the return of a summons in summary pro- ceedings to remove a tenant, admits the right of the landlord, and precludes the tenant from afterwards ob- jecting to irregularity in the proceedings on certiorari. In another case, it was held that the appearance of the tenant before the justice without raising any objec- tions, is a waiver of any defect in the affidavit upon which the proceedings are founded (McCarthy v. No- ble, 5 Leg. Ohs. 380 ; 4 Den. 185 ; compare 22 How. Pr. 183), and in Cunningham v. Gfoelet (4 I>en. 71), it was held that a defect in not naming the tenant is not waived by his appearance/or tJie purpose of objecting to it, but in that case the objection was expressly taken and was not, therefore, waived. Another illustration is furnished by the case of the estate of Samuel Nors- worthy, deceased, v: Bryan, which came before the New York Supreme Court at general term, upon a certiorari from a judgment rendered by a District Court Justice, in summary proceedings. The case is reported in the 38 Barbour S. 0. R. at p. 153, and the opinion as de- livered by BowwBY, Justice, is as follows : By the Court— Bonwey, J. — The only questions to be considered in this case are those arising between the landlord and the tenant Bryan. Bradley, stated to be under-tenant, assented to the judgment rendered by the justice on summary proceedings, and has not appealed. With him we have nothing to do. 264 LANDLOED AND TEJifAWT. The appellant Bryan appeared, on the return of the summons, but filed no affidavit, and we have only to determine whether or not the affidavit by wMch the proceedings were initiated states facts sufficient to au- thorized the issuing of the summons and warrant for his removal. On examination of the affidavit it is found to state in substance and effect these facts: 1. That the "estate of Samuel Norsworthy, de- ceased," is landlord of the premises in question. 2. That Amerman, who made tlie affidavit, is agent of said landlord, in respect to said premises. 3. That the ap- pellant (Bryan) is tenant of said premises, under an agreement made between him and said agent, at the an- nual rent of $3,600, payable in monthly payments. 4. That said tenant, on January 18, 1859, when the affida- vit was made, was indebted to said landlord in the sum of $200, due January 1st, 1859, for balance of rent for one month, from December 1, 1858, to January 1, 1859, for said premises. 6. That demand of such rent had been made of the tenant by said agent, after the rent became due. 6. That said tenant has made default in the pay- ment of said rent pursuant to the agreement under which the premises were held. 7. That said tenant held over, and continued in possession of said premises without the permission of the landlord, after such de- fault in the payment of the rent. None of the facts stated in the affidavit were denied by the tenant, and the service of the summons being proved, and the tenant appearing pursuant thereto, the justice rendered judg- ment in favor of the landlord, and issued a warrant for the removal of the tenant, under which he was removed. In my opinion the affidavit states all that is re- quired by the statute (8 R. S. 5th ed. 836, § 28, &c.), to authorize the removal of a tenant, and the judgment of the justice should be affirmed. The appellant ob- jects that the proceedings are in behalf of " The estate of Samuel Norsworthy, deceased," and insists that an estate can not be an actor. As to this, it is only neces- LAW OF STJMMAKY PEOOEEDIETGS. 265 sary to say that the affidavit states that '^the estate of Samuel Norsworthy, deceased,^'' is landlord of these premises, and that statement is not denied. Consequently it is admitted, and we can not go behind it. Whether ' ' the estate of Samuel Norsworthy, deceased," is a corporation, or an individual, or an association of several individuals acting together under that name, we can not now inquire. If the tenant had denied the statement in the affidavit, proof might have been pro- duced to show that the estate of Samuel N orsworthy, deceased, was capable of being, and was in fact, land- lord as stated. It was also made ground of objection that the affidavit did not state that Bryan was either tenant at will or at sufferance, or for a year or years, or part of a year, and therefore was insufficient. To this it may be answered that if the hiring was precisely as stated in the affidavit, and nothing more, the ten- ancy, by law, would expire on the 1st day of May next after the making of the agreement. And if the contract of hiring is not fully stated in the affidavit, the tenant should have supplied the defect, or made some objection to it for this reason. It certainly was not necessary to state in the affidavit how the landlord acqLuired title to the premises, and it clearly does show that the relation of landlord and tenant was created be- tween the parties by an agreement of hiring made by the tenant with the agent of the landlord, and that the tenant made default in the payment of rent after it was due, and after demand for payment thereof made. The statement that Bradley, under-tenant of part of the premises in question, holds over with (instead of without) permission of the landlord, if not to be treated as a clerical error (which in fact it clearly is, in my opinion), and amended, can not enure to the bene- fit of this appellant, against whom alone judgment was rendered. The judgment should be affirmed, with costs. In the People ». Teed (48 Barl). at p. 427), it was 34 266 LAWDLOBD AND TEWAWT. objected that the return showed that the jury retired to deliberate upon their verdict, but did not show that an officer was sworn to keep the jury, &c., and the general term of the Supreme Court, in answering the objection, said: "The statute is directory in this re- spect. We can not infer that the jury were not kept by an officer, or that he was not sworn. The relator might have procured a further return, if the magistrate did, in fact, neglect the performance of his duty, and the relator had desired to make it appear. It was the duty of the magistrate to swear an officer, and it is the intendment, in the absence of proof to the contrary, that he performed his duty." III. Filing counter affldavit. The statute provides that any person in possession of the demised premises, or any person claiming pos- session thereof, may, at the time appointed in the sum- mons for showing cause, file an affidavit with the magistrate who issued the same, denying the facts upon which the summons was issued, or any of those facts ; and that the matters thus controverted shall be tried by the magistrate, or by a jury, provided either party to such proceeding shall at the time designated in such summons for showing cause, demand a jury, and at the time of such demand, pay to such magistrate the necessary costs and expenses of obtaining such jury {vide § 34, ante, p. 189). This provision of the statute has given rise to the question of the proper construc- tion of the words, " denying the facts upon which the summons was issued, or any of those facts," owing to the omission to provide for cases in which the tenant is obliged to admit the truth of all the facts alleged in the landlord's affidavit, and in which, notwithstanding such admission.he has still a perfect defense; for example, take the case of a tenant whose defense is payment ; he can LAW OP STJMJy^ABT PEOCEEDINGS. 267 not dispute the hiring, nor its terms, nor can he deny that the rent became due as alleged by the landlord, nor can he deny that the landlord demanded it, and these admissions substantially make out the landlord's case, and yet the tenant, after admitting all these facts, may have paid the landlord at the time he demanded the rent. The legislature did not intend to exclude this affirmative defense. Take another case : Suppose the tenant has been evicted by title paramount before the rent claimed accrued, and was, in consequence, com- pulsorily obliged to attorn and pay rent to the para- mount owner, in order to protect his possession ; the tenant could not, in such a case, deny any of the facts required to be stated in the affidavit of the original land- lord, if he saw fit to institute a proceeding of dispos- session, and still the tenant has a complete defense in law. The legislature did not intend to exclude such an affirmative defense. The denial contemplated by the statute, means the denial by the tenant of the land- lord's claim for rent or possession by the pleading of facts, which of themselves constitute such denial, by showing that for some reason, recognized in law as valid, the claim made by the landlord, although it once exist- ed, has, by reason of the facts alleged, ceased to exist ; or, if the right never existed, the same result is accom- plished by a simple denial of the facts alleged by the landlord. That this was the intention of the legislature, is manifest from the spirit if not from the language of the statute, particularly when construed with reference to the plea of the general issue under the system of pleading in use at the time the statute was passed ; for under this plea almost every affirmative defense was admitted which went to defeat the plaintiff's claim. The modern system of pleading has, however, changed the former rule by requiring affirmative matter to be specially pleaded. The question of pleading in these proceedings incidentally came up in the Court of Appeals, in the 268 LAKDLOED AISTD TifiNANT. case of Geisler et al. v. Acosta (9 F. T. at pp. 231, 233), by an objection to the siaflBciency of a plea of former adjudication, and the court, speaking of the counter affidavit (per Denio, J.), said : " The first paper presented by Geisler and Wiegand did not pro- fess to deny any of the facts upon which the summons was issued. It did not, therefore, raise any issue, to try which a jury could be summoned ; and the magis- trate was right in his decision to that effect. As a plea of a former trial, and determination of the same matter, supposing that such a defense could be interposed, the paper was defective," because it did not show what issue was tried, nor upon what ground the judgment pleaded proceeded. And Willard, J., was of opinion that the statute did not contemplate pleading in these proceedings. The real question, however, decided by this case was the insufficiency and form of the counter affidavit itself, in not alleging the facts required in a plea, such as that which the tenant undertook to present. The denial contemplated by the statute must be express and posi- tive, and not circumstantial, argumentative, nor evasive (Niblo V. Post, 2.'5 Wend. 280). And where two tenants were jointly charged, in the affidavit of the landlord, with holding over after demand and non-payment of rent, the affidavit of one of them, stating that the rent had not been demanded of Mm, was held insufficient (Geisler et al. v. Acosta, 9 JV. T. 227). The denial by a tenant in his affidavit, of each and every allegation contained in the affidavit of the land- lord, is sufficient. Tlie affidavit is none the less a de- nial of the allegations of the landlord, because the allegations are not separately referred to. Where the tenant can not deny all the allegations, he must neces- sarily describe those which he wishes to deny. A tenant may seldom be able to deny all the allegations of the landlord, but in a case where he can deny all that has been stated by the landlord, the denial is as LATV OF StJMMAET PEOCEEDlH-QS. 269 complete and well defined by a general denial of every allegation, as if every statement had been recounted and denied in detail (The People «. Coles, 43 Barb. 96), and all the facts not denied by the counter affidavit are taken as admitted (McGuire ». Ulrich, 2 Ahb. 28 ; The People v. Teed, AS' Barb. 424; S. 0. 33 How. Pr. 238). It is not competent, however, for a tenant in these proceedings, to show a breach of the landlord's agree- ment to construct the premises in a proper manner. The tenant can not withhold both the rent and the pos- session (People -0. Ward 14 Abb. Pr. 372 ; 38 Barb. 269 ; Lafarge v. Mansfield, 31 Id. 845). General form of counter affldarit. Before Hon. , Justicfi. In the matter of the application by John Dob, as landlord, V. Richard Bob, as tenant. By tenan*- City and county of New York, ss. Richard Roe, the person described in the summons herein as tenant being duly sworn makes oath as follows, viz. : He denies each and every fact alleged in the affidavit of John Doe, upon which this proceeding was instituted. Sworn, &c. [Insert the denial according to circumstances. If it be a case in which the tenant can conscientiously make the above form of denial, he may do so. If not, insert such denials as the facts of the case may justify. If there be any affirmative defense, it should be specially pleaded with the same particularity required in ordinary actions in courts of record.] Counter affldavit by a person (not a party to the proceeding) either in possession or claiming possession of the demised premises. [Title of proceeding.] City and county of New York, ss. Paul Jones, being duly sworn, says that he is in the possession of the demises premises, and claims the possession thereof (state accord- ing to the fact), and for defense to this proceeding, he denies under oath, each and every fact alleged in the affidavit upon which this pro- ceeding was instituted. Sworn, &c, 270 LANDLOED AND TENANT. IV. Amendments in these proceedings. There seems to be no authority in the statute, to permit amendments to the affidavits, or summons in these proceedings ; and if they prove defective in any material respect the proceeding must be dismissed,, pro- vided the tenant in due time point out, by objection thereto, the particular defect complained of. And where a counter affidavit is once filed there seems to be a like v/ant of authority either to permit its amendment or to allow the filing of a supplemental affidavit to sup- ply defects in the one originally filed. It therefore be- hooves practitioners to be careful in the preparation of their papers, because incurable defects may preju- dice, if not defeat, the claim or defense prosecuted or defended. V. Demanding trial hy jury. The statute permits any person authorized to prosecute or defend these proceedings, to demand a jury to try the matters in controversy created and raised by the filing of the counter affidavit. But the right to a jury trial is waived, unless at the time designated in the summons for showing cause, a trial by jury be demanded by one of the parties to the issue to be tried, and unless such party shall at the time of such demand, pay to the magistrate, the necessary fees of obtaining such jury {vide sec. 34 of the statute as amended in 1857, ante, p. 189 ; The People v. Hovey, 4 Lans. 86). Prior to this amendment in 1857, the magistrate had no author- ity to try issues raised in these proceedings without a jury (Benjamin v. Benjamin, 1 Seld. 383), and in order to form the jury under the statute as amended in 1857, the magistrate with whom the counter affidavit is filed LAW OF StrMMAET PEOCEEDIITGS. 271 is required, to nomiaate 'twelve reputable persons qual- ified to serve as jurors in courts of record ; and is re- quired to issue his precept directed to the sheriff, or one of the marshals of the county, or any marshal of the city or town, commanding him 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, for the purpose of trying the said matters in difference {vide sec. 35, ante, p. 189). Venire for jury. The people of the state of New York, to the sheiifE of the city and county of New York, or any marshal of the city of New York, greeting : We command you to summon 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 13. good and lawful men of the city and county of New York, qualified to serve as jurors in courts of record, who are in no wise of kin to , the landlord, nor to , the tenant, claiming possession of a certain house and premises, known as No. street, in the city of New York, between whom a contro- versy exists, to be and appear before me, the justice of the district court of the city of New York, for the first judicial district, at the court house, No. street, in said city, at ten o'clock in the forenoon of that day, to try the matters in difference between the said parties, and have you then and there the names of the jurors, and this precept ; the said jurors being nominated by me to serve as jurors in said proceeding. Given under my hand, the day of 187 . , Justice. Ofttcer's I'eturn of service of summons on jurors. New York, 187 . I certify and return that I served the within (or above) named jurors; those marked P. in person, and those marked C. by copy. , Sheriff. , , Marshal. 272 LAKDLOED AND TENANl. Juror's sammons. Sib: You are hereby summoned to attend as a juror, before , Esq., the justice of the district court in the city of New York, for the first judicial district, at the court house, No. street, in said city, on the day of , 187 , at ten o'clock in the forenoon. Fine for non-attendance, ten dollars. , Sheriff. , Marshal. VI. Adjournments. The magistrate is authorized to adjourn the trial of the issues, upon the request of either party, for the purpose of enabling such party to procure his witnesses, whenever it shall appear to be necessary. The ad- journment in any case, can not, however, exceed ten days (§ 41 of the statute, ante, p. 191), and the pro- ceeding being summary in its character is seldom ad- journed longer than from one to three days, according to circumstances. Although it is customary to grant one short adjournment in these proceedings after the joining of issue, there is no law requiring it. In order to make it appear that the adjournment is necessary, an affidavit in the following form may be used. AffidaTit to adjourn trial. [ Title of proceeding.'] City and county of New York, ss. Kichard Roe, being duly sworn, says. That he is the person de- scribed as tenant herein; that issue has been joined by the filing of a counter affidavit herein, and that deponent is not ready for trial owing to the absence of material testimony, as hereinafter stated. That deponent, has fully and fairly stated the case herein to John Smith, his counsel, who resides in the city of New York, and that deponent has a good and substantial defense to said proceedings, on the merits thereof, as he is advised by said counsel, after sucli state- ment, and verily believes that he has stated to his said counsel what he expects and believes he will be able to prove on said trial, by Paul Jones, who is a material and necessary witness for deponent thereon, and that without the testimony of said Jones, deponent can- not safely proceed to the trial thereof, as he, deponent, is advised by his said counsel, and verily believes. That the proceeding is brought LAW OF STJMMAKY PBOOEEDINGS. 273 to recover possession of the premises known as No. street, in the city of New York. {Mere state the nature of the proceeding and defense, and show the materiality of the evidence.) That deponent has made diligent efforts to find said witness, and could not ; that on the day of 187 , he procured a subpoena for him, for the purpose of procuring the attendance of said witness at this court, this day, and that said subpoena was not served, for the reason that after a vigilant search and inquiry for said witness, at his residence and place of business, it ■Was ascertained that he had left the city of New York, expecting to return on the day of , 187 , at which time, and not sooner, deponent be- lieves he will be able to procure his attendance as such witness herein (or offer such other excuse as the nature of the circumstances afford). RICHARD ROE. Sworn to before me, &c. ) [This affidavit should be varied according to circumstances, and the nature and materiality of the evidence should appear, so that the justice may determine whether the witness is really material or not, and to enable the other side to determine whether they will admit what is expected to be proved by the absent witness, and in that way render the adjournment unnecessary.] 35 274 LAMDLOED AND TETTANT. CHAPTER XXXI. THE LAW AWD PRACTICE OUT STTMMAEY PE0CEEDING8 — Continued. — pboceedings upon teial. I. Trial without a jury — Oath to witnesses. n. Trial by jury. m. The jury — Qualifioations — Drawing — Talesmen — ChaUenges — Oath to jurors. IV. Evidence upon the trial. V. The judge's charge and oath to officer. Yl. Deliberations of the jury. Vn. Verdict of the jury — its effect. ; Trial witTiout a jury. The statute provides that if a trial by jury be not demanded, and the necessary costs and expenses of obtaining such jury be not paid at the time designated in the summons for showing cause, that the matters in issue shall be tried and determined by the magistrate alone {vide% 34, ante, p. 189), and if either party, upon the return of the summons, demand a jury according to the provisions of the act, the person so demanding the same, may, upon the adjourned day, waive the jury, and elect to try the issue raised before the magis- trate alone. The trial is conducted with the same formalities and under the same rules of evidence applicable to ordi- nary actions. The oath to the witnesses may be administered in the following form : Oath to witnesses. You do swear, that the evidence you shall give in this matter, in difference between John Doe, as landlord, and BichardBoe, as tenant, LAW OF SUMMARY PEOCEEDINGS. 275 will be the truth, the whole truth, and nothing but the truth, so help you God. II. Trial hy jury. Trials by jury are coBducted in the same manner as trials by tlie court. The party demanding the jury trial may afterwards waive it, if he choose, by consent in open court, and the magistrate may thereupon pro- ceed with the trial as if no jury had been demanded. III. The jury — Qualifleations — Drawing — Talesmen — Challenges — Oath to jurors. The statute, after directing the mode of summoning the jury {vide § 35 of the statute, p. 189), provides that twelve jurors are to be summoned, and that six of the persons so summoned are to be drawn in the same man- ner as jurors in justices' courts {vide § 36 of the stat- ute, p. 190). Talesmen. The statute farther provided that whenever a suffi- cient number of jurors, duly drawn and summoned, do not appear, or can not be obtained to form a jury, the magistrate may order any sheriff or marshal to sum- mon 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 magistrate {Id. and Laws 1862, ch. 868) ; prior to the act of 1862, the magistrate had no power to summon talesmen to form {a. jury (Miner v. Burling, 32ji?fflr5. 640), and if there was a default of jurors on the return of the venire he was consequently put to the necessity of issuing a second venire, and so on until a jury appeared (Roach 276 LANDtOBD AITD TEKANT. V. Cosine 9 Wend. 227; Porter v. Cass, 7 flbw.l 441) ; but this difficulty no longer exists. Qaalifications of jurors. The section of the statute in regard to jurors (§ 36), it will be seen, gives the magistrate the power to nomi- nate the persons to form, a jury — the limitation is twelve — and the persons so nominated must be qualified to serve as jurors in courts of record. By the statute applicable to the city of New York, no person is allowed to serve as a juror unless he is an intelligent man, of sound mind, and good character, free from legal exception, and able to read and write the English language understandingly. But no person is exempt from serving as a juror by reason of age, unless he is more than seventy years old ; nor by rea- son of non-residence if he has dwelt or lodged in the city or county for the greater part of the time between the 1st day of October and the 30th day of June next thereafter ; and to render a person liable to do duty as a juror, it is not necessary that such person shall be as- sessed or vote in the city (1870, ch. 539), In consider- ation of certain labors performed for the state, the statutes give to certain persons a right to claim exemp- tion from jury duty. But as this right is a mere per- sonal privilege, and its existence does not disqualify the juror nor form a ground for challenge, it is unneces- sary to do more than to allude to it. The general law applicable to the counties in the state which have no special law upon the subject, provides that the persons qualified to do jury duty are, 1. Male inhabitants of the town, not exempt from serving on juries ; 2. Of the age of twenty-one years or upwards, and under sixty years old ; ,3. Who are at the time assessed for personal property belonging to them in their own right, to the value of $250, or shall have a freehold estate in real property in the county belonging to them in their own right, or in the the right of their wives, to the value of $150 ; 4. In the LAW OF STTMMAET PROCEEDINGS. 2 7 possession of their natural faculties, and not infirm or decrepit ; 5. Free from all legal exceptions, of fair character, of approved integrity, of sound judgment, and well informed (2 Edm. R. B. p. 428, § 13) ; certain exceptions are made in reference to persons residing in either of the counties of Niagara, Erie, ChautaucLue, Cattaragus, Allegany, Genesee, Orleans, Monroe, Liv- ingston, Jefferson, Lewis, St. Lawrence and Franklin, whereby such residents, who do not possess either of the qualifications specified in the third subdivision of the above section, but who are qualified in other re- spects, and who shall have been assessed on the last assessment roll of the town for land in his possession which he holds under contract for the purchase there- of, upon which improvements shall have been made to the value of one hundred and fifty dollars, and who shall own such improvements, shall be deemed quali- fied to serve as jurors {Id. % 14). The act allowing twehe jurors to try issues in the district courts by consent, relates only to actions, and not to the summary proceedings (1869, chap. 410, p. 932). Having given the mode of summoning, and the qualifications of the jurors who are to try these pro- ceedings, we next proceed to the manner in which they are to be drawn according to the statute. Manner of drawing jnrors in justices' courts. Before proceeding to draw the jury in the manner directed hereafter, the justice should call over the con- stable's list of persons returned served, entering the names of such as do, and such as do not appear and answer. This being done, the manner of drawing the jury is directed by the statute to be as follows {Qow. Tr. § 1287) : (§ 99.) At the trial of the cause, the names of the persons so returned, and who shall appear, shall be respectively written on several and distinct pieces of paper, as nearly of one size as may be, and the consta- 278 LAKDLORD AND TENANT. ble, in the presence of the justice, shall 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 con- venient thing {Cow. Tr. % 1287). (§100.) The Justice shall then draw out six (or such number as the parties may have agreed upon) of such papers, one after another, and if any of the persons whose names shall be so drawn shall be challenged * ■and set aside, then such further number shall be drawn as will make up the number required, after al legal causes of challenge* allowed by the justice. The persons so drawn appearing, and approved as indiffer- ent, shall compose the jury to try the cause {flow. Tr. § 1287). No peremptory right of challenge in these proceedings. The act of April 27, 1847, giving a right of peremp- tory challenge on the trial of issues of fact in civil actions, does not apply to such an issue in summary proceedings, and § 36 of the statute which declares that six of the persons so summoned shall be drawn in like manner as jurors in justices' courts, does not extend the premptory right of challenge to such cases (People v. Hamilton, 39 N. Y. 107, aflSrming 15 Abb. Fr. 328), but it is supposed that the right of challenge to the com- petency or to the favor of the juro.r still exists. The jury having been duly summoned, drawn, and empanelled, are next to be sworn ; the oath to the jurors may be in the following form : Oath to jurors. Tou do swear that you will well and truly hear, try, and deter- mine the matters in difEerence between John Doe, as landlord, and Bichard Roe, as tenant, and a true verdict render according to the evidence. So help you God. * No peremptory right of challenge is allowed in summary pro- ceedings. LAW or SUMMAEY PEOOEEDIIirGS. 279 IV. Evidence upon the trial. The rules of evidence applicable to ordinary actions apply in like manner to these proceedings. If the tenant fails to appear upon the return of the summons and proof by affidavit of the due service of the summons is furnished to the magistrate, judgment is entered in favor of the landlord, as of course, without any further evidence. If the tenant or anyone claiming possession appear and contest the landlord' s right of possession, the counter affidavit determines the character of the issue, and whatever facts are not denied are by the mere omission to deny them admitted (People ex rel. McGuire «. Ulrich, 3 Ahi. Pr. 28 ; People v. Teed, 48 Barl. 424 ; S. C. 33 How. Pr. 238). In addition to the general rules above referred to, reference is made to a few of the decisions peculiarly applicable to this remedy. Thus, where the facts put in issue are, the ownership of the premises, and the hiring thereof to the tenant, proof of |.the conveyance to the landlord, and payment of rent to him by the tenant, establishes both these is- sues against the tenant (The People ». Teed, 48 Barb. 424 ; S. C. 33 How. Pr. 238), and as to the evidence re- quired in cases where land is sold under execution see Brown ». Betts (13 Wend. 29), Hallenbeck v. Gar- ner (20 Id. 22), and Birdsall «. Phillips (17 Id. 463), and although a tenant as a rule is not permitted to dis- pute his landlord's title (see ante, p. 97, 1 Cai. 444 ; 2 Id. 215 ; 7 John. 186 ; 10 Id. 358 ; 13 Id. 240 ; 6 Wend. 246 ; 5 Den. 431 ; 38 Barh. 269), he may show that such title has terminated, either by its own limitation or by conveyance or by operation of law (Jackson «. Davis, 5 Cow. 123 ; Buck ii. Binninger, 3 Barb. 391 ; Capet v. Parker, 3 Sandf. 662 ; Despard v. Walbridge, 15 N. 280 LAETDLOED AND TENANT. Y. 374), and an infant is not estopped by a contract with, plaintiff from showing title in himself (McCoon v. Smith, 3 Bill, 147), but infancy is no defense, the pos- session after refusing to pay rent being wrongful. V. T7ie judge's charge. Upon the conclusion of the evidence it is custom- ary for the justice to charge the jury, although he is under no obligation to do so. If j however, specific requests to charge are put, which are pertinent to the issues to be determined, the justice might not be authorized to decline to charge them. In The People ex rel. Ward ». Kelsey (14 Abb. Pr. at p. 378), before the New York Supreme Court upon certiorari, it appeared that afte;r the evidence before the justice closed, and the questions involved were about to be submitted to the jury, the judge proceeded to charge them upon the law of the case. Whereupon the counsel for the tenants objected, that there was no le- gal right vested in the magistrate in summary proceed- ings to charge the jury. Several questions of law arose in the progress of the trial, with which it can not be supposed the jury were conversant, and which it was of some consequence should be rightly compre- hended, before they could act intelligibly and sensibly. The defendant insisted that they were not to obtain a knowledge of the law from the judge, and that whatever he said in respect thereto, however just and true, was an error, for which the court should reverse the proceed- ings, and the Supreme Court, general term in the second district ( per Beown, J.) said : "This is a most extraordinary proposition. There is no express au- thority and direction contained in the statute con- cerning summary proceedings to recover the posses- sion of lands (2 Bev. Stat. 417), that the judge shall LAW OP STTMMABY PROCEEDINGS. 281 instnict the jury upon the law. Nor are there any ex- press words authorizing him to swear the witnesses, or to say what is to be received as evidence, and what not ; nor even to preserve order and decorum during the trial. Yet no one will think of disputing his authority to do all these things. Without it, the trial could not proceed, and the remedies provided by the act could not be obtained. All these powers, as well as that to instnict the jury, are to be implied. Where the facts upon which the summons was issued are denied by an affi- davit, the matters controverted are to be tried by the magistrate or by a jury, provided either party at the proper time demand a jury (§ 34). The matters con- troverted are those facts upon which the summons was issued and denied by the affidavit of the person in pos- session of the premises. The legal questions are still, however, to be determined by the judge holding the court or conducting the proceedings. There is to be a trial by a jury. Trial is the examination of the matter of fact in issue. ' Trial by jury, called also trial per pais, or hj the country, a trial which hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof (3 Black Qom. 349). This commentator then proceeds to describe how the jury are to be summoned and selected, how the testimony is to be received, and the witnesses ex- amined, &c., and says, 'when the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury, omitting all superfluous circum- stances, observing wherein the main question and prin- cipal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and gives them his opinion in mat- ters of law arising upon that evidence.' When our statutes speak of trial by jury, they mean a trial con- ducted in the manner described by the English com- mentator. Jurists and lawyers have no conception of 36 282 LANDLORP AXD TENAKT. a well conducted trial by jury, in which the charge of the judge upon the law of the case is onnitted." Oath to officer haying charge of jury. You swear in the presence of Almighty God, that you will, to the best of your ability, keep the persons sworn as jurors on this trial together in some private and convenient place, without any meat or drink except such as shall be ordered by me ; that you will not suffer any communication, orally or otherwise, to be made to them; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed on their ver- dict, until they shall have been discharged ; and that you will not, before they render their verdict, communicate to any person the state of their deliberations or the verdict they have agreed on. VI. Deliberations of the jury. After hearing the proofs and allegations of the parties, the jury are to retire and the above oath should be administered to the ofiScer in charge {vide % 37, ante, p. 190), but this will be assumed to have been done in the absence of any objection or showing to the contrary (The People v. Teed, 48 Bari. 424). The omission or mis-recital of the oath to the officer having charge of the jury, can not be assigned for error, unless it appears that exception to such omission or form was taken at the trial {Cow. Tr. % 1316, 3 Johns. 430). The jury should be kept together for such time as the magistrate shall deem reasonable, and if they can not agree, the magistrate may discharge them, and nominate a new jury and issue a new jury in the same manner as in the first instance ( vide §§ 37, 38, ante, p. 190). If the jury do agree, they are to be brought be- fore the magistrate, and are required to announce their verdict in his presence, and the fact that the jury at- tempted to communicate the verdict to the party in whose favor it was rendered, soon after coming into court, and before the verdict was announced, was held LAW OF SUMMARY PEOCEEDIN^GS. 283 not to affect the regularity or purity of the verdict (Fish V. Byrnes. 14 Abb. 12). Polling the jury. It is supposed that the jury may be polled, that is, asked individually, "Is that your verdict ? " (Lalor v. Koplin, 4 iV. Y. 547). If either answers no, it is sup- posed tliat the jury may again retire (2 Wend. 352 ; 3 Jolins. 255). VII. Verdict of the jury. It has been settled by the highest court of authority in this state, that the verdict of a jury in summary pro- ceedings that no rent was due from the tenant to the landlord, was conclusive upon that question, and a bar to any other or further proceeding on the part of landlord for the rent (White «. Coatsworth, 6 N. Y. 137). In a subsequent case it was held, that where the aflSdavit of the defendant in summary proceedings to dispossess for the non-payment of rent raises two ques- tions, and the jury finds generally for the defendant, both questions are presumptively res adjudicata, and in a subsequent proceeding, in which one of such questions arises, it is for the plaintiff to show it was not passed upon the jury, and that where the defend- ant's affidavit denied his indebtedness on various grounds, including that of eviction by title paramount, and also denied any demand of the rent, and the jury found a general verdict for the defendant, it was held that the verdict was presumptively res adjudicata on both, points, and that it was for the plaintiff to show that the jury only passed on the question of demand (The Yonkers & New York Fire Ins. Co. v. Bishop, 1 Daly, 44flV 284 LANDLOKD A.ND TENAWT. CHAPTER XXXII. THE LAW AND PRACTICE ON STJMMAEY PROCEEDINGS — Continued,. — final determination and its effect. I. The adjudication, when and how made — its effect. II. Payment of rent after adjudication. III. Giving bond to stay warrant in proceeding for non-payment of rent — its form. IV. Issuing the warrant — ^its form and effect. V. Redemption in cases wherein the unexpired term exceeds five years. VI. Certified copy of adjudication as evidence. , .^ The adjudication, when and how made — its effect. Section 39 of the statute {liide ante, p. 191) provides that if the decision of the magistrate, or the verdict of the jury shall be in favor of the lessor, or landlord, or other person claiming the possession of the premises, 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 herein before directed, and section 33 {^Ide ante, p. 188) de- clares, that if at the time appointed in the summons, no sufficient cause be shown to the contrary, and due proof of the service of such summons shall 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, commanding him to remove all persons from the said premises, and to put the landlord into the full possession thereof. Neither of these sections provide LAW OF SUMMARY PROCEEDINGS. 285 in words for any judgment, but this is necessarily im- plied (The People ex rel. Ward v. Kelsey, at p. 378). The power to hear, try, and determine these proceedings, of necessity vests in the magistrate the necessary author- ity to declare the result of his determination when made, and this formal determination is called in law a judg- ment. BouviER defines a judgment to be "the deci- sion or sentence of the law, given by a court of justice or other competent tribunal, as the result of proceed- ings instituted therein, for the redress of an injury." The form of the judgment usually adopted is en- dorsed upon the papers, as follows : Form of judgment by default. Before Jitsticb Quinn. John Dob | Landlord. \ RiCHAED Roe. I Tenant. -J Summons to show cause the 4th day of November, 187 . The landlord appeared on the 4th day of November, 1875, and de- mands the rent, and possession of the premises within mentioned, for the non-payment of the rent. The [tenant fails to appear, and no sufficient cause having been shown to the contrary] judgment is therefore rendered the 4th day of November, 1875, 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 (or by reason of the expiration of the tenant's term, according to the fact), and that a warrant issue to remove the said tenant and all per- sons from the said premises, and to put the landlord into full pos- session. DENNIS QUINN, justice, &c. Warrant issued day of 187 . [The recitals in the judgment should be stated according to the fact. The filing of the counter affidavit, the adjournments, the de- mand of a jury trial, tlie verdict of the jury, all these things should be stated, if true, the design being to make the judgment a sort of postea or record.] Judgments in summary proceedings before justice of the "peace. The statute in reference to summary proceedings before a justice of the peace {vide § 51, ante, p. 195), 286 LAKDLOKD AND TENANT. provides that the justice shall enter the finding of the jury, or in case no jury is called, his final decision, upon the application for the warrant on his docket, and render judgment therefor, and include in said judgment costs of such proceedings to the prevailing party, at the same rate of fees now allowed by law in civil actions in courts of justice of the peace, and lim- ited in like manner ; and in the warrant for delivery of possession, or by execution issued by him, the jus- tice is required to direct the collection of costs. This section is peculiarly applicable to justices of the peace, and differs essentially from the powers conferred upon the other officers authorized to entertain these proceed- ings {vide ante, § 39, p. 191, § 33, p. 188, and p. 185). Validity of judgments. To be valid, a judicial judgment must be given by a competent judge or court, at a time and place appointed by law, and in the form it requires. A judgment would be null, if the judge had not jurisdiction of the matter ; or, having such juris- diction, he exercised it when there was no court held ; or out of his district ; or if he rendered a judgment before the cause was prepared for a hearing {Bouvier's Law Dictionary ,_ vol. 1, p. 676). Whether these summary proceedings come within these requirements is a matter yet to be determined, although they have always been regarded as a proceeding out of court, and the jurisdiction one peculiar to the magistrate, and not to his court. The judgment must confine itself to the question raised before the court, and can not extend beyond it. For example, where the plaintiff sued for an injury committed on his land by animals owned and kept carelessly by defendant, the judgment may be for damages, but it can not command the defendant for the future to keep his cattle out of the plaintiff's land. That would be to usurp the power of the legis- LAW OF SUMMARY PROCEEDINGS. 287 lature. A judgment declares the rights which belong to the citizen ; the law alone rules future actions. The law commands all men ; it is the same for all, because it is general ; judgments are particular decisions, which apply only to particular persons, and bind no others ; they vary like the circumstances on which they are founded. Litigious contents present to the court facts to appreciate, agreements to be construed, and points of law to be resolved. The judgment is the result of the full examination of all these. Jurisdiction is that power or authority which the law has conferred upon courts, judges, or justices of the peace over the persons or the property of others, and over the subject-matter of actions or proceedings, to take cognizance of, to hear, try, and determine the rights of the parties in relation thereto ; to render a proper decision or judg- ment therein, and to carry that decision or judgment into execution. Consent can not confer jurisdiction, unless the court has jurisdiction of the subject-matter ; if it has jurisdiction of the subject-matter, consent will, as a rule, confer jurisdiction on the parties (§ 19, 20, Oow. Tr. ; see also 2 Hill. 657 ; 2 M. D. Smith, 22, 38 ; 9 N. Y. 266, 267). And where the jurisdiction of a court of limited au- thority depends on a fact which must be ascertained by such court, and such fact appears, and is stated in the record of its proceedings, a party who appeared, and had an opportunity to controvert the jurisdictional fact, and did not, but contested on the merits, can not afterwards, in a collateral action, impeach the record, and show that the jurisdictional fact did not exist (Dyck- man v. The Mayor, 5 iV. Y. 434, affg. 7 Barb. 498). Time within which judgment must be rendered. If the proceeding is to be regarded as one within the peculiar jurisdiction of the magistrate, as a judge out of court, the statute imposes no limitation upon him as to 288 LANDLORD AKD TENANT. the time within which he must render his decision, for by such a construction, the statute limiting the time within which ordinary actions in the court of the mag- istrate must be decided, has reference only to cases before the court, technically so called, as distinguished from those special jurisdictions conferred by statute peculiarly upon the magistrate as an officer out of court. The effect of such judgments. The adjudication of the magistrate or the verdict of his jury, is conclusive in all other controversies in which the same issues arise (White v. Coatsworth, 6 JV. Y. 137 ; Kelsey b. Ward, 16 Abb. Pr. 98, aff'd 38 N. Y. 83 ; Yonkers Ins. Co. v. Bishop, 1 Daly, 449), and the courts have even gone as far as to hold, that a judgment even by default in these proceedings was conclusive upon the parties to it in any other action or proceeding (Powers v. Witty, 42 How. Pr. 352 ; S. P. Morris ». Floyd, 5 Barb. 130). Although where in a summary proceeding the defendant's affidavit denied his indebtedness on various grounds'inclnding that of eviction by title paramount, and also denied any de- mand of the rent, and a jury found a general verdict for the defendant, it was held in a subsequent action for the same rent, where this record was offered ^by the defense, that it was presumptively res adjudicata, on both points, and that it was for the plaintiflf to show (if such was the fact) that the jury passed only on the question of demand (Yonkers Ins. Com. v. Bishop, 1 Daly, 449). IT. Payment of rent after adjudication. As stated in Chapter XXVI. {ante, p. 228), the ten- ant has the right, in a proceeding for nonpayment of rent, even after judgment, to pay the rent claimed, pro- LAW OF STTMMAEY PKOOEEDINGS. 289 vided he pays with it the taxable costs and charges, and the legally accrued interest, which is an incident to the rent (vide ante, p. 222), at any time before the warrant is actually issued {vide ante, § 44, p. 192). III. Gicing bond to stay warrant in proceeding for non- payment of rent, its form. The statute contains the following provisions as to staying proceedings upon giving security, viz. : In case of rent. § 44. The issuing of such warrant of removal shall be staj'^ed in the case of a proceeding for the non-pay- ment of rent, if the person owing such rent shall, be- fore 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 person 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 sat- isfactory evidence of the payment of the rent and costs, the warrant of removal may at any time thereafter be issued {vide ante, p. 192). Form of bond under aboye section. Know all men by these presents, that we, John Jones of Street, in the city of New York, and Paul Jones of street in said city, are held and firmly bound unto John Doe of the same place, in the sum of (double the amount of the rent and costs) to be paid to the said John 13oe, his executors, administrators, or assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors and administrators, joihtly and severally, firmly by these presents, sealed with our seals and dated the day of 187 . Whereas, in a certain proceeding pending before Esq., the justice of the district in the city of New York for the first judicial district, by John Doe, landlord, against Richard Roe, ten- ant, it was on the day of 187 , adjudged that the said Richard 37 290 ' LANDLOED AND TEKA:N"T. Boe held over and continued in possession of the premises known as No.' street, in said city, without permission of his landlord, after a default in the payment of the rent, pursuant to the agreement under which said premises were held, and which said rent, with the costs of said proceeding, now amount to dollars ; now, therefore, in order to stay the issuing of the warrant of dispossession in said pro- ceedings, and pursuant to the statute in such a case made and pro- vided, the condition of this obligation is such, that if the said ten- ant shall pay to the said landlord, John Doe, his executors, adminis- trators, and assigns, the said rent and costs within ten days from the date hereof, then the said obligation shall be void, otherwise to remain in full force and virtue. JOHN JONES, [l. s.] PAUL JONES. [L. s.] -In presence of ) An affidavit in the usual form should be annexed, showing the sufficiency of the sureties, and the bond should be properly acknowl- edged, and should be thereafter endorsed by the magistrate with his approval in the following form : " The within security is satisfactory to me, and is therefore ap- proved." Justice, &c. In case where the tenant has taken the benefit of the insolvent act. § 45. When the application to a magistrate is founded on the fact that the tenant or lessee has taken the benefit of any insolvent act, or been discharged under any act for the relief of his person from impris- onment, the proceedings shall be stayed, if at any time before issuing the warrant for removal, the tenant, or lessee, or his assignee, shall pay the costs of such pro- ceedings as have been had, and give such security to the person entitled to the rent, for the payment there- of, as it shall become due, as shall be sati sfactory to the magistrate {vide ante, p. 192). Form of bond under above section. The form of bond required under the above section is the same substantially as the bond, to stay the viarrant in proceedings for non- payment of rent (supra), excepting as to the recital of the particular character of the proceeding, which should be stated according to the fact, and excepting also the condition, which may be in the following words: "Now, therefore, in order to satisfy the requirements of the statute in such case made and provided, the condition of this obliga- LAW OF Sl^MMAKY PKOCEEDINGS. 291 tion is such, that if the said tenant (or lessee, or assignee, according to the fact) shall pay to the said landlord, John Doe, his executors, administrators, or assigns, all rent now due or that may hereafter be- come due, under and by virtue of the terms of the demise under which the said tenant (lessee or assignee, as the case may be)- holds said premises, then this obligation shall be void; otherwise to remain in full force and virtue." In cases where the premises have been sold under execution. § 46. When such application is founded upon an alleged sale, by execution, of the premises occupied by the defendant in such execution, the proceedings shall be stayed, if at any tin[ie before issuing the war- rant of removal, the occupant shall, 1. Pay the costs of such proceedings. 2. File with the officer before whom the application is pending, an affidavit that he claims the possession of such premises by virtue of some title or right acquired after such premises were sold ; or as guardian or tras-. tee for any other ; and, 3. Execute a bond to the applicant for such war- rant, in such penalty and with such sureties as the magistrate shall approve, conditioned to pay the costs which may be recovered against him in any ejectment that may be brought by such applicant within six months, for the recovery of the possession of such- premises ; and to pay the value of the use and occupa- tion of such premises, from the date of such bond to the time such applicant shall obtain possession of the same by virtue of a recovery in such action of eject- ment ; and also conditioned not to commit any waste or injury to such premises, during his occupation thereof {vide § 46, p. 193). Form of bond under above section. Know all men by these presents, That we, Richard Roe, hereinafter named, John Jones of No. street, in the city of New York, and Paul Jones of street, in said city, are held and firmly bound unto John Doe of the same place, in the sum of (the magistrate is to approve the penalty of the bond) to be paid to the said John Doe, his executors, administrators, or assigns, for which payment, well and 292 LAWDLOED AND TENANT. truly to be made, we bind ourselves, our heirs, our executors, and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated the day of 187 . Whereas, in certain proceedings commenced before Esq., the justice of the district court, in the city of New York, for the judicial district, by John Doe, against Richard Koe, to recover the possession of certain real estate to wit, the premises known as No. street in the city of New York, sold on execution against said Richard Roe, and whereas said Richard Roe claims the legal title in and to the said premises, and has filed an alBdavit of such claim with said justice, now, therefore, the condition of the above obligation is such, that if the said obligors pay all the costs which may be recovered against the said Richard Roe, in any ejectment that may be brought by said John Doe, within six months, for the recovery of the posses- sion of such premises, and also pay to the said John Doe, the value of the use and occupation of said premises from the date hereof, to the time said John Doe shall obtain possession of the same by virtue of a recovery in said action of ejectment, and conditioned also that the said Richard Roe do not commit any waste or injury to said premises during his occupation thereof, then this obligation to be void, other- wise to remain in full force and virtue. RICHARD ROE. [l. s.] JOHN JONES. [L. s.] PAUL JONES. [L. S.J In presence of ) [The sureties are to justify, and the bond is to be acknowledged and approved in like manner as upon the bond to stay the issuing of the warrant in case of non-payment of rent] (vide ante, p. 389). Affidavit of claim in last case. State of New York, city and county of New York, ss. Richard Ro?, being duly sworn says, that after the sale of the prem- ises described in the aflBdavit of John Doe [here state the facts showing tK& right in the affiant to the possession of the premises ly virtue of some title or right acquired after such premises were sold hy the sheriff or as guardian or trustee for any other, and then continue], and that by means of the premises said John Doe has no interest, claim or title, in or to. said premises, that deponent has paid the costs of these proceedings and has executed a bond with sureties to be approved by the magistrate who issued th^ summons, and which said bond deponent tenders to the said John Doe, the person prosecuting said proceedings. RICHARD ROE. Sworn to, before me this | day of 187 . f LAW OF SUMMABT PEOCEEDrNGS. 293 IV. Issuing the warrant, its form and effect. The statute (§ 43, vide p. 192) provides that ' ' when- ever a warrant shall be issued by any such magistrate for the removal of any tenant from any demised prem- ises, the contract or agreement for the use of the prem- ises, if any such exists, and the relation of landlord and tenant between the parties, shall be deemed to be can- celled and annulled;" and after the adjudication, the magistrate is bound to issue his warrant as required by the statute (§ 39, ante, p. 191), and may be compelled to do so by mandamus (People ■«. Willis, 5 Ahh. Pr. 205), unless the proceeding be for non-payment of rent and the statutory stay of ten days be procured by the execution of a bond to pay the rent within that time, as provided and allowed by § 44 {ante, p. 192), and if such bond be given, and the person giving it does not, within the ten days, produce to the magistrate satisfac- tory evidence of the payment of the rent and costs, the warrant of removal may at any time thereafter be is- sued (Jd.), but the provisions of the statute in regard to staying the warrant upon the execution of a bond, have no application to proceedings for holding over, and ap- ply only to those for non-payment of rent (Sage v. Harpening, 49 Barh. 166). The form ofj^the warrunt, . "i 1. For non-payment of rent. 2. For holding over. 8. In other cases. 1. For non-payment of rent. To the sherifiE of the city and county of New York, or to any marshal of said city, greeting : Whereas, John Due hath, made oath in writing, and presented the 294 LANDLORD AND TEN ANT J same to me, that he is the landlord of the premises hereinafter de- scribed, and that Eichard Koe, as tenant, was justly indebted to the said landlord in the sum of fifty dollars, for one month's rent of the premises known as^No. 1 Broadway, in the city of New York, in ad- vance, from October 1st, 1875, till November 1st, 1875, that the said rent has been demanded from the said tenant since the same became due, and the said tenant has made default in the payment thereof, pursuant to the agreement under which the premises are held, and that the said Richard Roe, as such tenant, holds over and continues in possession of the same, without the permission of the landlord, after default in the payment of the rent as aforesaid. Whereupon I issued a summons, requiring the tenant, and each and every person in posses- sion of the said premises, or claiming the possession thereof, forthwith to remove from the said premises, or show cause before me, at a cer- tain time now past, why the possession of the said premises should not be delivered to the said landlord ; and no good cause having been shown, or in any way appearing to the contrary, and due proof of the service of such summons having been made to me. Therefore, in the name of the people of the state of New York, you are commanded to remove all persons from said premises, and put the said landlord into the full possession thereof. In witness thereof, I have subscribed these presents, this 4th day of November, in the year 1875. DENIS QUINN, Justice of the District Court in the city of New York, for the first Judicial District. 2- For holding over. To the sheriff of the city and county of New York, or to any marshal of said city, greeting: Whereas, John Doe has made oath in writing, and presented the same to me, that he is the landlord of the premises hereinafter de- scribed, and on or about the 1st day of October, 1875, he rented unto Richard Roe as tenant, the premises known as No. 1 Broadway, in the city of New York, for the term of one month from the 1st day of October, 1875, which said term has expired, and that said tenant holds over or continues in possession of the same after the expiration of his term therein, without the permission of the landlord : Where- upon I issued a summons requiring the said tenant forthwith to re- move from the said premises, or show cause before me, at a certain time now past, why the posesssion of the said premises should not be delivered to the landlord ; and no sufficient cause having been shown to the contrary, and I, being satisfied by due proof of the service of the said summons. Do, therefore, in the name of the people of the state of New York, command you to remove all persons from the said premises, and put the landlord into the full possession thereof. In witness thereof, I have subscribed these presents, this 3d day of November, in the year 1875. DENIS QUINN, I Justice of the District Court in the city of New York, for the first Judicial District. LAW OP SUMMABY PBOOEEDINGS. 295 3. In other cases. The direction and command in the warrant are the same in all cases, but the recitals in the warrant should follow those in the affi- davit, and if a trial be had that fact may be stated. With the affidavit and summons in the proceeding present, there can be but little diffi- culty in inserting the necessary recitals. Sheriff's, constable's, or marslial's return upon warrant. Pursuant to the command of the above warrant, I have this day put the landlord into the full possession of the premises therein men- tioned. Dated this day of 187 . , Sheriff. , Marshal. , Constable. The effect of the warrant. The effect of the warrant is declared in § 43 of the act ( ante, p. 192) ; it cancels and annuls the lease and extinguishes the relation of landlord and tenant, but only from the time of the default (Hinsdale v. White, 6 Hill, 507) ; all rent prior to the default may be recov- ered (Johnson v. Oppenheim, 55 N. Z. 280 ; A E. D. S. 339 ; 2 Hilt. 217 ; 1 Duer, 266 : 3 Den. 452 ; 12 Abb. If. S. 6). The remedy after default is not on the lease, but against the tenant wrongfully holding over, as a wrong-doer (Hinsdale «. White, 6 Hill, 507 ; Davison V. Donadi, 2 M D. Smith, 121 ; Hackett v. Richards, 3 Id. 21 ; Crane v. Hardman, 4 Id. 339 ; Featherston- haugh V. Bradshaw, 1 Wend. 134; see also 1 £J. D. S. at p. 419 ; 3 De?i. 456 ; 2 H. T. 336 ; 30 Barb. 386 ; 5 Hobt. 180 ; 23 How. 239 ; 1 Duer, 276 ; 1 Dalp, 46), and rent payable in advance, is not affected by an eviction oc- curing subsequent to the day it is payable (Giles v. Comstocfc, 4 If. T. 270 ; Johnson v. Oppenheim, 55 If. Y. 280). The effect of a re-entry for condition broken upon a lease reserving such right, and agreeing to pay any deficiency thereafter was considered in Hall v. Gould (13 If. r. 127). Protection of the warrant. '' A warrant of dispossession properly issued, protects all who act under it without regard to the state of the 296 LANDLOBD AND TENANT. weather, unless they act wilfully and maliciously (Hig- enbothan v. Lowenbein, 28 How. 221 ; S. O. 3 Bob. 32), and where the landlord and owner in fee, claiming that the term has expired, enters without process and with- out force, during the temporary absence of the tenant, the latter has no right to take the law into his own hands, and attempt to dislodge the former by force. The landlord, being in actual possession, has a right to maintain it, and to use force for that purpose, if neces- sary (Sage V. Harpending, 49 Barb. 166; S. C. 34 ; Sow. Pr. 1), and where a dispossessing warrant has been issued in summary proceedings against a tenant, and is regular and valid, and the landlord has been put into possession of the premises by virtue of it, he is justified in using so much force as is necessary to de- fend himself, and maintain his possession ; and is liable in damages to the tenant, in an action for alleged as- sault and battery in repelling the attempt of the tenant to re-enter, only for excess of force used {Id.). Kight to remoTe persons not named In warrant. In Connecticut it was held that an execution issued upon a judg- ment in summary process, commanding the oflBcer to put the defend- ant and all others out of the possession of the premises, is irregular, and will not protect the officer if he dispossess any other than the defendant (Colt «. Eves, 12 Omn. 259, 261). Constables and marshals. The office of constable in the city of New York was abolished in 1862, and the office of marshal created in its place, with the like powers and duty (1862, ch. 484, §18). Costs of dispossessing. In the city of New York, a lessor who has dispos- sessed the lessee may recover by action the expenses of the. proceedings (Crane ». Hardman, 4 M. D. 8. 339). LAW OP StrMMAET PEOOJEEDHiTGS. ,297 Redemption in cases wherein the unexpired term exceeds five years. In case of proceedings for non-payment of rent, if the unexpired term of the lease under which the prem- ises are held exceeds five years at the time of -issuing the warrant upon such proceedings, the lessee, his as- signs, or personal representatives, may at ariy time within one year after possession of the demised preip- ises 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 landlord — and in such case the premises shall be restored to the lessee, who shall hold and enjoy the same without any new lease thereof ac- cording to the terms of the original demise ; and any mortagee 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 per- form all the agreements which ought to be perforrned by the first lessee, shall not be affqcted by such' recov' ery ; and such judgment creditor may file a suggeistion of such payment upon the record, and may issue ex- ecution for the amount of the original judgment and of Such payment {vide § 54, ante, p. 196). There seems to be no adjudication of cases under this Section, but the right to redeem is absolute in the cases mentioned in the statute, and the landlord and all others claiming under him, must yield possession to to the tenant or mortagee upon the redemption being perfected according to these provisions. The landlord is bound to accept the tender which 38 Sb'S •' LANDLORD AND TEKANT. the tenant or mortagee is authorized by the statute to make, and his refusal to do so may operate to discharge his right of the possession, or Hen for the rent, as in the case of a mortagee (Kortright v. Cady, 21. ..M.. T. 343). IV. Certified copy of adjudication as emdence. The act in reference to District Courts in the city of New York, provides that "a transcript of any pro- ceedings 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 him, certified by . him to be correct, shall be presumptive evidence of the facts therein contained (1857, chap. 344, p. 728, § 78) ; and in the absence of some statute making a certified copy or transcript evidence, it is supposed that the original record must be produced in connection with other evidence showing its authenticity. Effect of tenant's death. It was held in Hughes v. Sebre (3 A. K. Marsh. 327) that where; a tenant died intestate the landlord could not distrain before adminis- tration, and in Hovey «. Smith (1 Ba/rb. at p. 377) it was held that the converse of the rule held good ; viz., that the landlord could distrain ' cefter administration. ENJOINING 8UMMAKY PROCEEDINGS. 299 CHAPTEE XXXIII. INJUNOTIONS TO ENJOIN SUMMAET PK0CEEDING8 — IN WHAT CASES GRANTED. Section 47 of the statute giving certiorari to review summary proceedings to obtain possession of land, and declaring that such proceedings can not be stayed by order of any court or officer, is effective in all cases where the act gives the tenant an adequate remedy, *. e., where his defense is of a legal character, which can, if true, be effectually established before the magistrate '-{HigJh on Injunctions, § 46; Kerr's Injunctions in Equity, p. 15 ; Smith v. Moffat, 1 Barl. 65 ; Words- worth V. Lyon, 5 How. Pr. 463 ; Hyatt ?;. Burr, 8 Id. .168; Duigan «. Hogan, 1 Bosw. 645; S. C. IQ Bow. Pr. 164 ; Bokee -o. Hamersley, Id. 461 ; Mclntyre v. Hernandez, 7 Abi. Pr. N. S. 214; Seeback n. Mc- Donald, 11 Abh. Pr. 95 ; S. 0. 21 Mow. Pr. 224 ; Marks *. Wilson, 11 Abh. Pr. 87 ; Ward v. Kelsey, 14 Id. 106 ; McGrune v. Palmer, 5 Robertson, 607 ; Rapp ». Williams, A T. <& O. Bept's iV. Y. Supreme Ct. 174). -Nor can an injunction issue, because of a counterclaim against the rent on which the tenant may recover in an action at law, the landlord being solvent (Brown ®. The Metropolitan Gas Light Company, 38 How. Pr. 13S). And the exceptions to this general rule exist only (1) where the peculiarcharacter of the defense is of an equit- able nature, so that the justice by reason of his limited powers can not administer the adequate relief demanded by the equities and exigencies of the case (Valloton ». S&ignett, 2iL55. Pr. 121 ; 7 Abb. N. S. 214) ; or wheria (2) there was fraud in the proceedings, as in the cases of Griffith ». Brown (3 Hobt. 627 ; S. C. 28 How. Pr. '4) ; •300 LAWBLOED AKD TENANT. Cure V. Crawford (5 How. Fr. 293), in which it ap- peared that the tenant had not time to arrive at the court room before the hearing after the service of the summons ; (3) or in a case of surprise such as Forrester «. Wilson (1 Duer, 624), in which the court continued an injunction upon the immediate payment of the rent ; or in case" (4) of fraud or collusion in the proceedings generally (Bokee w. Hamersley, IQ How. Pr. 461). In the case just cited, the New York Supreme Court hold that the only cases in which the court will interfere by injunction to stay summary proceedings, between landlord and tenant, are: 1. Where there has been fraud or collusion. , 2. Where the justice has not obtained jurisdiction ; and, 3. Where the tenant, from the peculiar circum- stances of the case, is precluded from setting up his defense before the justice. The Superior Court, however, deny the existence of this second ground, deciding that where the justice has no jurisdiction the remedy is by prohibition (Bean «. Pettingil, 7 BoM. 7, affg. 2 Abb. Pr. N. S. 58). In Huggins v. King (3 Barb, at p. 619), Judge Hakbis says : " Among the grounds of equitable jur- isdiction enumerated by the elementary writers, is relief against frauds in verdicts, judgments, decrees, and other judicial proceedings (citing 1 Story's Eq. % 252 ; Fonbl. Eq. B. 1, ch. 1, § 3, note f). To induce a Court of Equity to grant relief against a judgment, it must appear that the party seeking relief was pre- vfented from availing himself of his defense against the judgment by fraud or accident, or the act of the oppo- site party, unmixed with negligence or fault on his part (citing Foster », Wood, 6 Johns Ch. 87 ; Vilas «. Jones, 1 ComstooJc, 281). The plaintiff had a good de- fense to the action in which the judgment was recovered against him. He was prevented from setting up that defense by a gross fraud practiced upon Mm ENJOINING aUMMAET PEOCEEDINGS. 301 by the defendants. Here was no negligence or fault on his part. Under these circumstances, assuming the bill to be true, as the demurrer does, it is a proper case for counteracting the judgment obtained by the defen- dant's fraud, by the interposition of the equitable jur- isdiction of the court." It is diflScult to define the exact nature of the fraud which entitles a plaintiff to an injunction, perhaps, be- cause the manifestations of fraud are so various that it is impossible to embrace its varieties of form within the limits of a precise definition {High on Injunc- tions, § 24, p. 18). The right to an. injunction in an action for specific performance was sustained in Capet «. Parker (3 Sandf. 662), in which form of action the tenants had filed a bill against their landlord, praying, among other things, for an injunction enjoining the landlord from prosecuting summary proceedings to remove the tenants from the prem- ises, which the tenants claimed the landlord had previously contracted to convey to them, and the tight to the injunction was claimed until their right to specific performance had been decided. The landlord and his counsel questioned the right of thp court to grant the injunction, and disregarded it, and proceeded with the summary proceedings to judgment and warrant. The court held that it had power, and committed the landlord for contempt, unless, he con- sented to vacate all proceedings to disposses and paid the tenant' s costs, and the court in criticising upon the conduct of the landlord' s counsel, said : "It was very different from what should have been pursued. He was an officer of the court. He ought, therefore, to have advised his client to respect its authority, even though in his opinion the court had erred. We live under a government of law, and it is one of the peculiar felicities of our condition, that the moral sense of the community is so strongly on the side of obedience to law, that, in the civil administration of justice, resort to 302 LAITOLOKD AND TENANT. physical force is seldom necessary to carry the judg- ments of the courts into effect. They are submitted to as a matter of course. It is peculiarly the duty of those who profess the law, to cherish this feeling, and to elevate and strengthen the spirit of obedience to judi- cial authority. And it is a matter of deep regret, when any of those whose province it is to aid in the adminis- ' tration of justice, encourage resistance to or disregard of the decisions of the court or of its judges," (see also 9 N. Y. at p. 266). . In another case, it was held that a tenant suing his landlord, to compel the execution of a renewed lease, if he shows himself equitably entitled to the renewal, may have an injunction pendente lite, restraining, the landlord from removing him by summary proceedings (G-raham v. James, 7 RoM. 468), but an injunction shonld not be granted to one not a party to the sum- mary proceedings merely upon an allegation that he is likely to be disturbed in his rightful possession (Aaron V. Baum, 7 BoM. 340; and see Marry «. James, 2 Daly, 487), and the fact that the magistrate is a witness is not ground for an injunction, except in an extreme case (Marry ». James, supra), and the injunction may in a proper case be granted after the warrant has been issued (Forrester «. Wilson, 1 Duer, 624 ; GriflBth v. Brown, 3 IloU. 627 ; S. C. 28 How. Pr. 4), but not after its exr ecution (Koberts e. Mathews, 18 Abb. Pr. 199). BA-WDT HOtrSES. 303 CHAPTER XXXIV. BAWDY HOTJSES AND ILLEGAL TRADES. I. The statute relating to bawdy houses. n. The statute relating to illegal trades aud manufactures. III. Proceedings thereunder. IV. The forms required in such proceedings. Bawdy-house act. Chapter 764. An Act to amend title ten of chapter eight of part three of Revised Statutes relative to bawdy houses. Passed May 9, 1868 : three-fifths being present. The people of the state of New York, represented in senate and assembly, do enact as follows : Section 1. Title ten of chapter eight of part three of the Eevised Statutes is amended by adding thereto the following sections : [The preceding sections, 1 to 23, compose Chapter XX., ante, p. 174; §§ 24 to 54 compose Chapter XXI., ante, p. 182.] Application for warrants of dispossession when honses are occnpied as bawdy honses. , § 55. When any house or other real property is used or occupied as a bawdy house, or house of assignation for lewd persons, the owner or landlord thereof may apply to any officer mentioned in section twenty -eight of this title, for a warrant of dispossession, as herein- after set forth. Vide % 28 above referred to, ante, p. 184. . ' 304 LANITLOED" AN©' TENANT. ' Application, what to state, and to be verified. ■§ 56. Such application shall be made upon ati affi- davit setting forth that- thehause or -'premises in ques- tion, or some part thereof, is used or occupied as a bawdy house or house of assignation for lewd persons, describing the premises, and naming, if it can be done, the persons occupying the same, or some one of them. Magistrate to issue summons to occnpants to remoTO or sho'ir cause. § 57. Upon such application, accompanied by such affidavit, the magistrate shall issue a summons describ- ing the premises, and requiring the persons named, or described in the affidavit, to remove therefrom forth- with, or show cause before him why they should not do so, in the same time and manner as is prescribed by this article' in case of non-payment of rent. : ■ Summons, how served. Warrant commanding removal of Occupants, when to issue. § 58. The summons shall be served. in the manner prescribed, by section thirty -two of this title, and if, at the return day, no cause be shown to the contrary, the magistrate shall, upon due proof of service of the sum- mons, issue his warrant to the proper officer, command- ing him to remove from the premises aforesaid theper- sons on whom the summons was served. Vide § 33, above referred to, ante, p. 187. Octsnpants may appear and be tried by a jury. Warrant, &c. § 59. The person on whom the summons was serve)!, or any other person in possession of the premises afore- said, may appear and show cause against the applica- tion in the manner prescribed by section thirty-four of this title ; such proceedings shall thereupon be had ;as are prescribed by sections thirty-four, thirty -five, thirty- BAWDY HOUSES. 305 six, thirty-seven, thirty-eight, forty-one and forty -two ; and if the decision of the magistrate, or the verdict of the jury, be in favor of the complainant, the magistrate shall issue the warrant mentioned in the last section. Vide §§ 34 to 42, above referred to, ante, pp. 189, 190, 191. Issue of warrant to annnl contracts. § 60. A warrant issued under either of the last two sections, shall have the effect prescribed by section forty -three of this title. Vide § 43, above referred to, ante, p. 193. „ . Persons residing in neig'hborliood of bawdy liouses may make appli- cation in case the owner or landlord fails to do so. § 61. Any owner or tenant of real property in the immediate neighborhood of other real property, used or occupied as a bawdy house, or house of assignation for lewd persons, may give written notice to the owner or landlord of the property so used, to make the applica- tion hereinbefore mentioned ; and if such owner or landlord do not, within five" days after personal service of such notice upon him or his agent, make such appli- cation, or if, having made it, he do not, in good faith, prosecute the same, the owner or tenant giving such notice, may apply to any officer, mentioned in section twenty-eight of this title, for a warrant of dispossession, as is hereinafter described. Vide § 38, above referred to, ante, p. 184. Proceeding's of case of such applications. § 62. Such application shall be accompanied by an affidavit similar to that required by section fifty-five, and further setting forth the facts necessary to bring the the case within provisions of the last section, and there- upon the officer to whom the a,pplication is made shall issue a summons describing the premises, and requiring 39 306 LAWDLOBD AND TENANT. the defendant to show cause before such officer in the same time and manner as is prescribed by this article in case of non-payment of rent, why he should not be compelled to remove from such property. Vide § 55, above referred to, ante, p. 303. Serrice of summons upon owners or occupants of bawdy houses. Warrant, &c. § 63. Such summons shall be served in the manner prescribed by section thirty- two of this title, on the owner or landlord, or his or their duly aiithorized agent, and also on the tenant, if any, occupying the premises as a bawdy house, or house of assignation for lewd per- sons ; and if, at the return day, no cause be shown to the contrary, the magistrate shall, upon due proof of service of the summons, issue his warrant to the proper officer^ commanding him to remove from the premises the persons on whom the summons was served, within two days from the issue of such warrant. Vide § 32, above referred to, ante, p. 187. Owners of houses as well as occupants may demand jury trial. Warrant, &c. § 64. The owner or landlord of the premises, and also any tenant occupj'ing the same, may appear and show cause against the application in the manner pre- scribed by sections thirty-four, thirty-five, thirty-six, thirty-seven, thirty-eight, forty-one and forty -two ; and if the decision of the magistrate, or the verdict of the jury, be in favor of the complainant, the magistrate shall issue a warrant requiring the defendant to be removed, as is mentioned in the last section. Vide §§ 34 to 43, above referred to, ante, pp. 189, 190, 191. Act, what to affect. This act shall affect only lettings or leases hereafter made. [§ 2 of the Act.] BAWDY HOUSES. 307 Certain leases, when void. Whenever the lessee of any dwelling house shall be convicted of a misdemeanor in keeping the same as a bawdy house, the lease or agree- ment for the letting of sucli house, shall thereupon become void ; and the landlord may enter upon the premises so let, and shall have the same remedies to recover possession thereof as are given by law in case of a tenant holding over after the expiration of his lease (3 Edm. R. S. p. 725, § 29). Keeping a bawdy house was indictable at common law, and the accused have a right to a trial by jury. Hence the statute authorizing them to be proceeded against criminally as disorderly persons is un- constitutional (Warren b. People, 3 Park Gr. B. 544). A house kept as a house of ill-fame, and a resort for thieves and other disreputable persons, is a public and common nuisance (Ely «. Supervisors, 36 N. T. 297). The principle of the rule that the owner of a house who rents it to be used and kept as a house of prostitution is to be deemed to keep such house, and is liable to indictment and conviction as the keeper of a bawdy house; applies to any person who is personally concerned in the keeping of such a house, e. g., an agent who knowingly lets his principal's proBcrtv for such use (Lowenstein «. The People. 54 Barb. 299). II. 77ie statute relating to illegal trades Chapter 583. An act to define some of the rigMs and responsibili- ties of landlords and tenants. Passed May 22, 1873. The people of the state of New York, represented in seriate and assembly, do enact as follows : When tenant uses bnilding to carry on illegal business, lease to be- come void. § 1. Whenever the lessee or occupant other than the owner of any building or premises, shall use or occupy the same, or any part thereof, for any illegal trade, manufacture, or other business, the lease or agreement for the letting or occupancy of such build- ing or premises shall thereupon become void, and the landlord of such lessee or occupant may enter upon 308 LANDLORD AND TENANT. the premises so let or occupied, and shall have the same remedies to recover possession thereof as are given by law in case of a tenant holding over after the expiration of his lease. Vide proceedings for holding over, ante, § 38, p. 184 and p. 230. Liability of owner leasing building for illegal business. § 2. The owner or owners of any building or prem- ises knowingly leasing or giving possession of the same, to be used or occupied, in whole or in part, for any illegal trade, manufacture or business, or know- ingly permitting the same to be used for any illegal trade, manufacture, or business, shall be jointly and severally liable with the tenant or tenants, occupant or occupants, for any damage that may result by reason of such illegal use, occupancy, trade, manufacture, or business. § 3. This act shall take eflfect immediately. Where there is an express covenant against using a house for im- moral purposes, yet if tlie lessor permits a breach of the covenant, and derives gain from it, he can not aftei'wards recover upon his cove- nant (Smith V. White, 35 L. J. Oh. 454; 5 Bing. N. 0. 666). III. Proceedings under said statutes. The proceedings under these statutes, with the ex- ception of the forms, are substantially like those in the ordinary summary proceedings, which have been fully explained in preceding chapters. As to bawdy houses. If the owner, landlord, or agent of the bawdy house, neglect to bring and in good faith prosecute the proceedings authorized by th.e act, after being reqLuested so to do, any stranger being the owner or occupant of BAWDY HOUSES. 309 otter real property in the neighborhood may under § 61 of the act commence and prosecute the said pro- ceedings in his own name, without the consent and even against the will of the owner or landlord of the premises complained against. In this respect, the proceedings under this act essentially differ from those under any of the other summary remedies. As to illegal trades, manufactures, or businesses. It is supposed that the trades, manufactures, or businesses contem- plated by the act, are those which are forbidden by the statute or local law, or which are not recognized as legitimate and legal at the common law, or which, in their character, are per se nuisances at com- mon law, and hence illegal. IV. The forms used in said proceedings — arranged as follows : 1. Affidavit upon complaint of landlord under bawdy-house act. 2. Summons to be issued upon said affidavit. 3. Affidavit upon complaint of owner or tenant of neighboring property. 4. Summons to be issued upon last-mentioned affidavit. 5. Affidavit upon complaint of landlord under the act relating to unlawful trades. 6. Summons to be issued upon said affidavit. 7. Endorsement on copy summons. 8. Forms of judgment. 9. Forms of warrant. 1. Affidavit upon complaint of landlord under bawdy-house act. To Hon. Denis Quinn, Justice of the District Court in the city of New York, for the first Judicial District. The subscriber applies for a warrant of removal against Richard Roe, the tenant and occupant of the premises hereinafter described on the grounds of complaint in the accompanying affidavit set forth' JOHN DOE. New York, November 1st, 1875. 310 LANDLORD AND TENANT. State of New York, city and county of New York, ss. John Doe, being duly sworn, says that he is the landlord of the premises hereinafter mentioned. That on or about the 1st day of September, 1875, deponent entered into an agreement with Kichard Roe as tenant, by the terms of which agreement the said tenant hired from deponent, as landlord, the dwelling-house situated and known as No. street, in the city of New York, for the term of one year, from September 1st, 1875, at an agreed rental. That the said tenant entered into the occupation of said premises, and is now in possession and occupation of the same. That said premises are now used and occupied by the said tenant (and by other persons connected with him therein, whose names deponent can not ascertain) as a bawdy house and house of assignation for lewd persons for purposes of prostitution, and as a place of resort for such persons for similar purposes, contrary to the statute of the state of New York, in such case made and pro- vided, and that said tenant continues in the possession of the same, and uses and occupies said premises as such bawdy house and house of assignation, in violation of law, and without the permission of the landlord. JOHN DOB. Sworn before me, this 1st day of ) November, 1875. J John Smith, Notary Public, N. Y. Co. 2. Summons npon landlord's application under bawdy house act. To Richard Roe, tenant, and each and every person in possession of the demised premises] hereinafter mentioned, or claiming the pos- session thereof: Whereas, John Doe has made oath in writing, and presented the same to me, that he is the landlord of the premises hereinafter de- scribed, and that he, the said landlord, entered into an agreement with you as tenant, on or about the 1st day of September, 1875, by the terms of which said agreement, you hired from him, as landlord, the dwelling situated and known as No. street, in the city of New York, for the term of one year from September 1st, 1875, at an agreed rental. That you, said tenant, entered into the occupa- tion and possession of said premises under said hiring, and that you now use and occupy the same (in connection with persons whose names are not known to said landlord) as a bawdy house, and house of assignation for lewd persons, and for purposes of prostitution, and as a resort for such persons, contrary to the laws of the state of New York, and that you continue to use said premises as such bawdy house and house of assignation, in violation of law, without the per- mission of the landlord. 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 the court house, on the southwest corner of Chambers and Centre streets, in the city of New York, on the 4th day of November, 1875, at ten o'clock in the forenoon, why the possession of the said premises should not be delivered to the said landlord. BAWDT HOrrSES. 311 Witness my hand at the city of New York, this 1st day of Novem- ber, 1875. DENIS QUINN, Justice of the district court of the city of New York, for the first Judicial District. 3. Affidavit upon complaint of owner or tenant of neighboring property. Insert application as in Form No. 1, ante, p. 309, and then proceed as follows: State of New York, city and county of New York, ss. John Doe, being duly sworn says, that he is the owner (or tenant, as the fact may be), of the real property known as No. street, in the city of New York, in the immediate neighborhood of the other real property known as No. street, in said city, which said last mentioned real property is used and occupied by Richard Roe as a bawdy house, and house of assignation for lewd persons, for purposes of prostitution, and a place of resort for such persons, and has been so used and occupied for some time past, and that while the said house was so used and occupied, to wit, on the day of 187 , this deponent caused a notice to be personally served upon the owner (or landlord, or their agent, as the case may be) of the said last mentioned property, informing him (or them) of the character of the occupation of said house, and requiring such owner (landlord or agent, as the case may be) to make applica- tion under the statute relative to bawdy houses, to remove said Richard Roe from said premises for the cause aforesaid, and that the said parties, each and all of them, have neglected to make the application afore- said, and have not in good faith or otherwise prosecuted the same, although more than five days have elapsed since the personal service of said notice aforesaid, and this deponent therefore avails himself of the right given by said statute to any owner or tenant of real property, in the immediate neighborhood of the property complained of, to prosecute in case of such neglect aforesaid. JOHN DOE. Sworn before me, this day of ) 187 . \ John Smith, Notary Public N. Y. Co. 4. Summons to be issued on last mentioned affidavit. To Richard Roe, and each and every person in possession of the premises hereinafter mentioned, or claiming the possession thereof. Whereas John Doe has made oath in writing and presented the same to me, that he is the owner (or tenant as the fact may be) of the real property known as No. street, in the city of New York, in the immediate neighborhood of the other real property, known as No. street in the said city, which last mentioned real property is used and occupied by you, Richard Roe, as a bawdy house and house of assignation for lewd persons, for purposes of prostitution, and a place of resort for such persons, and has been so used and occu- pied for some time past, and that while the said house was so used 312 LANDLORD AND TENANT. and occupied, to wit, on the day of the , 187 , the said John Doe caused a notice to be personally served upon the owner (or landlord, or their agent, as the case may be) "of the said last men- tioned property, informing him (or them) of the character of the occupation of said house, and requiring such owner (landlord, or agent as the case may be) to make application, under the statute relative to bawdy houses, to remove you, the said Richard Roe, from the said premises for the cause aforesaid, and that the said parties each and all of them, have neglected to make the application afore- said, and have not in good faith or otherwise prosecuted the same, although more than five days have elapsed since the personal service, of said notice aforesaid, and that said John Doe therefore availed himself of the right given by said statute to any owner or tenant of real property in the immediate neighborhood of the property com- plained of, to prosecute in case of such neglect aforesaid. 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 the court house, at the southwest corner of Chambers and Centre streets, in the city of New York, on the day of 187 , at ten o'clock in the forenoon, why possession of the said premises should not be delivered to the landlord. "Witness my hand the day of 187 . DENIS QUINN, Justice of the District Court of the city of New York, for the First Judicial District. 5. Affidavit upon complaint of landlord under the act relating to unlawful trades. Insert application as in Form No. 1, ante, p. 309, and then pro- ceed as follows : State of New York, city and county of New York, ss. John Doe, being duly sworn, says that he is the landlord of the premises hereinafter mentioned ; that on or about the day of 187 , deponent entered into an agreement with Richard Roe as tenant, by the terms of which agreement the said tenant hired from deponent as landlord, the dwelling-house situated and known as No. street, in the city of New York, for the term of years, from the day of 187 , at an agreed ren- tal. That the said tenant entered into the occupation of said premi- ses, and is now in possession and occupation of the same. That the said premises are now used and occupied by the said tenant for an illegal trade (" manufacture or other business," state the facts fully, so that it may appear to the judicial mind as matter of law that the trade, manufacture, or other business is really illegal), contrary to the statute in such case made and provided, and that the said tenant continues in such illegal use and occupation of said premises, without the permission of this deponent, and in violation of said statute. JOHN DOE. Sworn to before me, this ) day of 187 \ John Smith, Notary Public N. Y. Co. BAWDY HOUSES. S13 6. Snmmons under the statute as to illegal trades, &c. To Richard Roe, tenant, and each and every person in possession of the demised premises hereinafter mentioned, or claiming the pos- session thereof: Whereas, John Doe has made oath in writing, and presented the same to me, tliat he is the landlord of the premises hereinafter de- scribed, and that he, the said landlord, entered into an agreement with you as tenant, on or about the day of 187 , by the terms of which said agreement, you hired from him as landlord, the dwelling situated and known as No. street, in the city of New York, for the term of years from the day of 187 , at an agreed rental. That you, said tenant, entered into the oc- cupation and possession of said premises under said hiring, and that you now use and occupy the same for an illegal trade [recite facts in re- lation thereto as in affidavit] contrary to the statute in such case made and provided, and that you, the said tenant, continue in such illegal use and occupation of said premises without the permission of the said landlord, and in violation of said statute. 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 said premises, or show cause before me at the court house, on the southwest corner of Chambers and Centre streets, in the city of New York, on the day of 187 , at ten o'clock in the forenoon, why the posses- sion of the said premises should not be delivered to the said land- lord. Witness my hand at the city of New York, this of 187 . DENIS QUINN, Justice of the District Court in the city of New York, for the first Judicial District. 7. Eudorsement upon summons. As to this endorsement, see form at pp. 357, 258 (ante), and see statute, § 3, p. 188 (ante). 8. Form of judgment. The form of judgment is substantially the same as that given on p. 285 (ante), excepting as to the recital of facts. 9. Form of warrant. In preparing the warrant in these proceedings, the form may be taken from those at pp. 393, 394, by substituting the facts recited in the summons in these particular proceedings, instead of those recited in said forms. 40 314 LANDLORD AKD TENANT. CHAPTER XXXV. OEETIOEAKI TO REVIEW PROCEEDINGS -AND PRACTICE THEREON. I. To review proceedings on forcible entry and detainer. II. To review summary proceedings. I. To review proceedings on forcible entry and detainer. Certiorari to review proceedings on forcible entry and detainer, maybe granted, and the proceedings may be removed thereby into the Supreme Court, at any time after the finding of the inquisition by the jury of inquiry, and before the trial of the traverse of the in- quisition by the second jury (Haines v. Backus, 4 Wend. 213 ; Carter v. Ne'wbold, 7 How. 16G) ; and a certiorari will not lie until after inquisition found (Haines «. Backus, svpra). The certiorari must be allowed by a Justice of the Supreme Court (§ 19, ante, p. 180), or by a county judge (1847, p. 324, § 17, m How. 181). And the writ will not be allowed unless security be given as provided by section 20 of the stat- ute {Id. ante, p. 180). The judge is required to annex and file the bond on his retarn [to the writ (§ 21, ante, p. 181). And if the defendant omits to traverse the in- quisition within such time as the court by rule shall direct, restitution shall be awarded by the court with costs, and if upon the trial of the traverse, the defend- ant be found guilty, the court shall also award restitu- tion with costs, and in either case the court may au- thorize the complainant to prosecute the bond given on the allowance of the writ of certiorari (§ 22, [ante, CEETIOEAEl TO EEVIEW rnOCEEDINGS. 315 p. 181). Where tLe proeeedings are removed by cer- tiorari into the Supreme Court, and the issue therein is ordered to be tried at the circuit, if the complainant do not proceed to trial, judgment as in case of non-suit will be granted with costs, samp as in ordinary civil actions (Tbe People v. Hickox, 3 Hill, 446). And where the complainant is successful in the Supreme Court he is also entitled to costs as in ordinary civil actions (3 Rill, 446 ; 6 How. 178 ; Code, § 318). And any party aggrieved by the decision of the Supreme Court, may have the decision reviewed by the Court of Appeals by writ of error, but not by appeal (Codfe, § 471 ; 19 ]Sr. T. 584 ; 20 Id. 529 ; 18 Id. 487). rditlon for ceiliorari (o rcmorc proceedings. To the Honorable the Supreme Court of the state of New Yorlc. The Vetition of Richard Roe, respectfully shows to this Honorable court, that on or about the day of , 1875, proceedings under the statute in re " Forcible Entry and Detainer," were instituted by John Doe against your petitioner, before Hon. Justice of the Marine Court of tbe city of New York, founded upon the com- plaint of the said John Doe, charging your petitioner with a forcible entry into and upon certain premises in said proceedings particularly described as follows (Here insert description): and with a forcible holding out therefrom. That on the same day the said justice issued his precept to the sheriff of the city and county of New Yorlj, commanding him, accor- ding to the statute, to summon twenty-four inliabitants of said city, duly qualified as jurors, to appear before said justice ut a time now past, as a jury of inquiry into the aforesaid complaint, aud on the same day the said justice caused a notice of the issuing of said pre- cept tobe served on your petitioner, notifying him of the issuing of the precept, and that an inquisition would be held to inquire into the alleged forcible entry or detainer as aforesaid, on the day of , 1875, before said justice. Your petitioner further shows tliat upon the return day, in said no- tice named, at the hour and place therein stated, your petitioner ap- peared before the said justice by his couns'jl Esq., for the purpose of objecting to the jurisdiction of said justice, and defending against the allegations contained in the complaint of the said John Doe, and that said counsel thereupon made the following objections, viz. (State them, although it is unnecessary, l)ecause the statute gives the absolute right of removal after inquisition, and be- fore the trial upon the traverse tliereto) : which said justice overruled, and thereupon the inquiry proceeded, and the jury after being impan- elled and swoni, and after evidence was had on the part of both parties, made, sigaed, and delivered to the justice, an inquisition, 316 LANDLOKD AND TEKANT. wherein and whereby they found an inquisition, wherein and whereby they found, that on the day of , 1875, your petitioner, forcibly, unlawfully, and with strong hand, entered into, and expelled the said John Doe from the land and premises in such complaint and inquisition mentioned, and that the said John Doe then had, and_ now has, such a subsisting interest in said lands and tenements, as is re- ferred to in the statute, and that the traverse to said inquisition has not yet been tried, and your petitioner desires to avail himself of the right given to him by statute of removing the trial of the said inquisi- tion into this court upon the conditions montioned in said statute. Wherefore your petitioner prays that this court grant its writ of certiarari, and remove the trial of the said inquisition according to the statute in such case made and provided. And your petitioner will ever pray. RICHARD ROE. Dated New York, 187 . [TTsual verification.} Certiorari to remore proceeding's. The people of the state of New York to justice of the Marine Court of the city of New York,. Greeting : Whereas, we have understood, on the complaint of Richard Roe, that lately before you, a certain inquisition was found against him, for, &c. (state the findings of the jury). And we being willing for certain reasons, that the said inquisition, and ail other proceedings concerning the same before you remaining, should be certified and returned by you into our Supreme Court of judicature, before our justices thereof, do command you that you certify and return the same into our justices of the Supreme Court of judicature, with all the proceedings thereto appertaining, at the next term of this court, to be held at the special term thereof at the court house. New York city, on the day of next, so that our said justices may further act thereon, as of right and according to law ought to be done ; and have then there this writ. Witness, Hon. Presiding Justice of the Supreme Court at the court house. New York city, this day of 187 . Wm. Walsh, Clerk. (Indorsed.) On the application of Q. F. L., Attorney for Richard Roe, and upon the within petition dated the day of 187 , 1 allow the within writ of certiorari to issue. Justice of the Supreme Court. Bond of allowance of certiorari. (See ante, § 20, p. 180.) Know all men by these presents. That, &c. [in the usual form the obligee is the complainant ; there must be two sureties, or, in case the defendant is absent, three sureties ; penalty not less than one hun- dred dollars.] The condition of the above obligation is such that if Richard Roe shall appear at the return of a certain writ of certiorari, issued out of the Supreme Court of this state, tested on the day of ^187 , and returnable on the day of CEETtOEAEl TO REVIEW PEOCEEDlNaS. 317 187 , and directed to Justice of the Marine Court of the city of New York, commanding him to certify the in- quisition, and all other proceedings concerning a certain forcible entry alleged to have been made into certain lands nnd premises of John Doe, the obligee above named, by the said Kiohard Roe; and if the said Richard Roe shall answer to the inquisition found against him as aforesaid, and abide such order and judgment as the said Supreme Court shall make in the premises, and pay all costs that shall be awarded against Mm, then the above obligation to be void, other- wise to remain in full force and virtue. Signed, sealed, and delivered ) Signatures and seals of obligors, in presence of j [Add acknowledgment and affidavit of sureties in the usual form ; also approval of sureties as follows :] "I approve of the sureties in the above bond, and of the sufficiency thereof. Justice of the Supreme Court." Betnrn of justice to certiorari. (See ante, § 21, p. 181.) The answer or return of , Justice of the Marine Court of the city of New York, to the writ of certiorari hereto annexed. By virtue of, and in obedience to the writ of certiorari, hereto an- nexed, and to me directed, I do hereby certify, and return to the Jus- tices of the Supreme Court, that on the day of , last, the complaint of John Doe of the city of New York duly verified, was presented to me; which complaint, with the affidavit verfiying the same, is hereto annexed. That I did thereupon &c. [proceed in the same manner, and make return of all the proceedings down to the time of the service of the writ of certiorari]. All of which I do hereby certify and return, as within I am com- manded. In testimony whereof, I have hereinto set my hand and seal, this day of , in the year 187 . Justice of the Marine Court. Traverse in Supi-eme Court. (See ante, §§ 21, 23, p. 181.) (Same substantially as Id. p. 206.) II. To review summary proceedings. Summary proceedings (except in cases before jus- tices of the peace) can be reviewed only by certiorari to tlie Supreme Court (The People v. Willis, 5 Abb. 205 ; 318 lANDLOED AKD TENANT. The People «. Bigelow, 11 How. 83 ; Romaine «. Kin- shimer, 2 Hilt. 520, disapproving Davis v. Hudson, 5 Abh. 61). Tile office of the writ, is to correct errors of a judicial character (The People v. Board of Health, 33 Barh. 344 ; The People n. Yan Alstyne, 32 Id. 131). And the Supreme Court has jurisdiction to award a certiorari, not only to inferior courts, but to persons in- vested by the legislature with power to decide on the property or rights of the citizen, even in cases where they are authorized by statute finally to hear and de- termine, if the jurisdiction be not taken away by ex- press words (Lawton v. Commissioners, &c. 2 Gai. 179 ; Le Roy ». Mayor, &c., 20 Jolms. 430 ; Lynde o. Noble, 20 Id. 80 ; 16 Id. 8 ; 23 Wend. "ill). It is not to be allowed before the final adjudication below (Lynde b. Noble, supra ; Delvin «. Piatt, 11 AUb. Pr. 398) ; and the granting of the certiorari is in the discretion of the court (The People v. Supervisors, &c., 15 Wend. 198 ; The People v. Mayor, 2 Hill, 9 ; Id. 14 ; People ». Mayor, &c., 5 Barb. 43 ; People v. City of Rochester, 21 Id. 656 ; People v. Stilwell, 19 N. T. 531 ; and see 1 Hill, 195 ; 33 Barb. 344). At common law, and generally, the certiorari sus- pended the proceedings of the officer to whom it was directed (13 Wend. 664 ; Launitz v. Dixon, 5 Sandf. 249). And in the case of summary proceedings under the statute to recover the possession of laud, the rule has been altered so far as the proceedings upon the ap- plication to the justice are concerned. Hence when a certiorari is issued it suspends the effect of the judg- ment of the justice, In every collateral matter, and in everything else except what remains to be done by the justice himself. It does not prevent him from issuing his warrant, but this is all (Launitz v. Dixon, supra). And the statute declares that the certiorari to review proseedings to dispossess shall not stay or suspend such proceedings (§ 47, ante, p. 193), And a motion to quash will ba entertained where the writ has been is- CEETIOEAEI TO EEVIEW PEOCEEDINGS. 319 sued in an improper case (5 How. 378 ; 4 Cow. 73 ; 12 Wend. 241 ; 5 Abb. Pr. 194; 15 Wend. 198 ; 1 Hill, 195 : 2 Idj. 9). And the magistrate to whom the writ is directed, may test its regularity by not obeying its mandates (5 How. 378). The writ must be retTirnable on the first day of the next general term, and the motion to quasli should be there heard, and on a statutory certiorari under section 47, to review summary proceedings, the evidence should be returned, and the court may review its sufficiency, as well as questions of jurisdiction (Niblo v. Post, 25 Wend. 280, 311, following Anderson v. Prindle, 23 Id. 616, overruling Birdsall ». Phillips, 17 Id. 464 ; Prin- dle 0. Anderson, 19 Id. 391 ; Simpson v. Rhinelanders, 20 Id. 103 ; Wilson x. Green, Id. 189 ; Morewood v. Hollister, 6 N. Y. 309 ; 5 Id. S83). And the fact that summary proceedings are conducted in a harsh and op- pressive manner, and that the tenant may not have had actual notice of them are not grounds upon which the proceedings can be reversed on certiorari (The People ■e. Simpson, 37 Barb. 432). The general term on such certiorari may not on^y reverse the proceedings of the court below but may order restitution (§ 48, ante, p. 194), but restitution should not be awarded to the ten- ant if his term has expired before the judgment of re- versal was rendered (Chretien v. Doney, 1 iV. Y. 420). And on the reversal of such proceeding, the parties are restored to the position occupied before the proceedings were instituted entitling the plaintiff, however, by the express provisions of the statute (§ 49, ante, p. 194), to his action for damages ; and the ground of reversal is wholly immaterial (Hayden v. The Florence Machine Co., 54 if. Y. 221). Costs. As to costs in these proceedings (see §§ 318 and 471 of the Code, and Laws of 1854, ch. 270, p. 592). 320 LAKDLOED AKD TENANT. The rule in England as lo the remoTal of conyictions by certiorari. In England certiorari is a writ issuing out of the crown office in the name of the king, or queen regnant, and tested by the chief justice, which the court of Queen's Bench, by virtue of its superintending author- ity over all courts of inferior criminal jurisdiction in the kingdom, has power to award, for the purpose of procuring an inspection of their proceedings. No writ of error lies on summary convictions, and therefore the writ of certiorari is the only mode by which a re- vision of these proceedings by the Superior Court can be obtained. It requires no special law to authorize this writ ; for it is a consequence of all inferior juris- dictions of record, to have their proceedings removable, for the purpose of being examined by the court of Queen's Bench. In this respect the proceeding by certiorari differs from the right of appeal ; for, where- as the latter does not exist, unless created by express provision, the other lies of course, unless expressly taken away by statute {Foley on Convictions, pp. 277, 278). HForm of petition for certiorari to review snmmary proceedings. To the Honorable the Suprelne Court of the State of New Tork. The petition of Richard Roe respectfully shows to this Honorable court, that on or about the day of 187 , proceedings under the statute to recover the possession of land in certain cases, were instituted against your petitioner by John Doe, before Esq., Justice of the Court, on the grotind of (state the ground), and that on the return of the summons in said proceeding, your petitioner filed an affidavit denying all (or if not all, which) of the facts on which the summons was issued ; and that 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 hear- ing the testimony adduced, decided in* favor of the said John Doe, and issued his warrant to dispossess your petitioner from said prem- ises. That on said trial the said justice admitted testimony not legally admissible, and rejected testimony that ought to have been received, that is to say (state the facts) ; and that said decision was contrary to and against the evidence adduced before said justice, and CERTIOEABI TO REVIEW PROCEEDINGS. 321 the said justice committed other errors of law and fact in the course of said trial, and of the proceedings connected therewith (state the errors in detail), as will appear on the face of said proceedings, and, by reason of tlie matters aforesaid, your petitioner has been greatly injured by being dispossessed from said premises, and otherwise to his great damage. Wherefore your petitioner prays that a writ of certiorari may issue, directed to the said justice, commanding him to return said proceedings, with the proofs and exhibits therein, to this Honor- able court, to the end that the said errors may be corrected, and justice be done. And your petitioner will ever pray. Dated New York, 187 . [Usual verification.] Order directing certiorari to issue to rcTiew summary proceedings. At a special term of the Supreme Court of the state of New York, held at the City Hall, in the city of New York, on day of 187 . Present Hon. Justice. The People ex rel. Richaed Roe, V. John Doe. On reading and filing the petition of Richard Roe, praying that a c ertiorari issue to Esquire, Justice of Court, to certify certain proceedings had before him, to recover the possession of certain premises, described in the affidavit and summons annexed to said petition, as follows: (describe premises). It is therefore, on motion of attorney and of counsel for said Richard Roe, hereby ordered that a certiorari for the purpose aforesaid, issue to the said Esq., the Justice aforesaid, commanding him to certify and return to this court the said proceed- ings and ' the adjudication by him thereon had, and all proofs and exhibits in any manner relating thereto. Writ of certiorari to review summary proceedings. The people of the state of New York to Justice of the Marine Court of the city of New York, send greeting: We being willing for certain reasons to be certified of certain proceedings lately instituted and had before you between John Doe as landlord, and Richard Roe as tenant, upon application of, the said John Doe to remove the said Richard Roe from certain premises in the city of New York, under the statute to recover the possession of land in certain cases, for holding over and continuing in the posses- sion thereof, without the permission of the said landlord, after the expiration of the term of the said tenant as is alleged, in which such proceedings were had upon the application aforesaid before you, that an adjudication was made thereon against the said Richard Roe as it is said: Do command you that you certify and return all and 41 322 LANDLORD AND TEITAITT. singular the original proceedings and adjudication aforesaid, and all things in any manner appertaining or relating thereto, to our Supreme Court of judicature, at the Court House, City Hall park, in the city of New York, on the day of 187 , under your hand, as fully and amply as the same remain before you, so that our said Supreme Court may further cause to be done thereupon what of right and according to law ought to be done, and have you then and there this writ. Witness, Hon. Presiding Justice of our said Supreme Court at the Court House in the city of New Tork, the day of 187 . By the Court. Wm. Walsh, 'Endorsed.) Clerk. Allowed 187 . Justice. Eetnrn of justice. The answer or return of , Justice, to the writ of certiorari hereto annexed is as follows: ' In obedience to the said writ, to me directed, I do hereby certify and return. [Here state all the facts, with the adjudication thereon ; annex all the original papers or copies of them.] All of which is respectfully submitted. New York, , 187 . Justice. [See form of justice's return at pp. 335, 336, post.} Order of I'erersal of summary proceedings. At a General Term of the Supreme Court, of the state of New York, held at the City Hall, in the city of New York, on the day of , a. d. 187 . Present Hon. , Justices. The People ex rel. Richakd Rob j John Doe. | The certiorari herein to ' Esq., Justice of the District Court, in the city of New ,York, for the judicial dis- trict, coming on for argument in its order on the calendar, and after hearing , counsel for the relator herein, and , counsel for the respondent, It is hereby ordered that the judgment and adjudication of the said , justice, be, and the same is hereby in all things reversed, with costs. — And it is further ordered, that , the relator herein, be restored and put into possession of the premises from which he was dispossessed under the warrant issued by said justice upon the said judgment hereby reversed, said premises be- OEETIOEAEt TO EEVIEW' PEOOEEDINGS. 323 ing described as follows : " the rooms on the floor, in the dwelling known as No. street, ia said city of New York, and for that purpose it is ordered that a writ of restitution issue, directed to the sheriff of the city and county of New York, commanding said sheriff forthwith to restore the said relator to the immediate possession of the said premiaes. Writ of restitution in summary proceedings. The people of the state of New York, to the sheriff of the city and county of New York, send greeting : Whereas, Richard Roe, of said city and county of New York, by certain proceedings, had before Esq., Justice of the District Court in the city of New York, for the judicial district, under the provisions of article second, title ten, of chapter eight, of part third, of the Revised Statutes, entitled " summary proceedings to recover the possession of land in other cases," was removed from the possession of the rooms on the floor of the dwelling, known as No. street, in the city of New York, and sit- uate in said street, and which proceedings we caused to be removed into our Supreme Court of Judicature, by our writ of certiorari ; and whereupon it was considered in our said court, after argument before our said justices, that the said Richard Roe should be restored to the possession of the said premises, whereof the said Richard Roe is con- victed, as appears to us of record. — Now, therefore, we command you forthwith to restore the said Richard Roe to the full possession of the aforesaid described premises; and how, and in what manner you shall have executed this our writ, make appear to our Supreme Court, at the city and county of New York, on the day of , a. d. 187 , and have then and there this writ. Witness Hon. , Presiding Justice of the Supreme Court, at the City Hall, in the city of New York, this day of , 187 . [l. s.] Wm. Walsh, Clerk. , Attorney for relator. (Endorsed.) AUowed, 187 . Justice. 324 LANDLOiBl) AWb TENANT. CHAPTER XXXVI. EEVIEW BY APPEAL OF STJMMAET PHOCEEDINGS BE- FOEB JirSTICES OF THE PEACE. I. The verdict of the jury or decision of the magistrate to be en- tered in the justice's docket. n. Form of warrant by justice of the peace. [in. Eeview of adjudication upon appeal by the county court with the forms required upon such appeal. I. The verdict of the jury or decision of the magistrate to he entered in the justice's docJcet. In case of prooeedicgs before a justice of the peace under the statute, the justice shall enter the findings of the jury, or in case no jury is called according to the provisions pf the statute, his final decision upon the application for a warrant, in his docket, and ren- der judgment therefor, and include in such judgment costs in such proceeding 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. , The justices' docket may be in the following form : I Form of justice's docket, i Before Esq., Justice of the Peace. John Dob, landlord, RiCHABD Rob, tenant. Summary proceedings to remove Richard Roe, tenant of premises No. street, in the town of 1875. Nov, 1. Landlord presents oath in writing under the act. REVIEW BY AiPPEAL. 325 1875. Nov. 1. Issued summons returnable Nov. 4, 1875, at 1 p. m. at my office. " " 4. Tenant appeared and filed counter affidavit, and de- manded jury trial, and paid fees $ , and proceedings adjourned for trial, till Nov. 6, 1875, 1 p. M. " " 4. Issued precept for jury, and delivered same to con- stable Smith. " " 6. Proceedings tried by a jury, ■who rendered a verdict for the landlord. Plaintiff's costs [here state the costs], judgment for possession of the premises claimed, with $ costs, " " 6. Issued warrant to Constable Smith, for the delivery of possession to plaintijffi, and also to collect the said judgment. II. Form of warrant hy justice of the peace. ■the warrant to be issued by justices of the peace in these proceed- ings may be in the forms suggested at pages 393, 394; adding at their conclusion, and just above the attestation clause, a direction to collect the costs in the form following: "And you are also hereby commanded, in the name of the people of the state of New York, to levy and collect the sum of dollars, for the costs of the said proceedings, out of the goods and chattels of the said tenant (Eichard Eoe), excepting such as are by law exempt from execution, and to bring the money which you shall collect within sixty days from the date hereof, before me at my office, in the town of in the county of New York, to satisfy the same." Given under my hand at the town, county, and state aforesaid, this day of 187 . Justice of the Peace. III. Meview of adjudication upon appeal, with the forms required upon such appeal. The review by appeal to the county court of the county in which the proceeding was had, can only be had in the case of a proceeding before a justice of the peace (see § 51 of the statute, ante, p. 195, and see cer- tiorari, Chapter XXXV. ante, p. 317). The statute provides that the proceedings before said justice may be removed by appeal to the county court of the 326 LAITDLOED AND TENAKT. county, in the same manner and with 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 (§ 52 of the statute, ante, p. 195). But in addition to the security for such judgment as required by law in case of such appeal, in order to stay the issuing of the warrant or execution there shall, in case of appeal by the tenant, be security also given for the payment of all rent accru- ing or to accrue upon said premises, subsequent to the said application to such justice {Id.). No appeal under the act is allowed unless such se- curity 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 of appeal {Id. % 53, ante, p. 195). The section just cited, provides that the security shall be approved of by the judge, but that means when the proceedings are before a justice of the peace, it may be approved by him. The notice of appeal must be in writing stating the grounds thereof, and must be served within twenty days after the judgment is rendered. The statute in regard to appeals from justices of the peace is contained in the Code (§§ 351 to 371, both in- clusive), and is as follows : Existing laws repealed and 'this cliapter substituted. Code, part of § 351. All statutes now in force provid- ing for the review of judgments in civil actions, rendered by courts of justices of the peace * by the municipal court of the city of Brooklyn, and by the justices' courts of cities, and regulating the practice in relation * The Marine Court and District Courts in the city of Kew York, are omitted from the section to prevent confusion, the remedy for er- rors committed by the justices of those courts in summary proceed- ings being by certioraii to the Supreme Court and not by appeal (see Chapter XXXV., mte^ p. 317). EEVIEW BT APPEAL. 327 to such review are repealed ; and hereafter, the only mode of reviewing such judgments shall be an appeal, as prescribed by this chapter. By what courts judgments are to be review ed. Code, part of § 352. In the city of Buffalo, the ap- peals from the courts of justices of said city shall be to the Superior Court of said city. When rendered by any of the other courts enumerated in section 351, the appeal shall be to the county court of the county where the judgment was rendered. The note to section 351, is also applicable to this section, and the provision for a new trial in the county court is omitted because inap- plicable to these proceedings for the decision of the county judge on appeals from judgments in summary proceedings is by statute required to be only an affirmance or reversal of the judgment, and is declared to be final (see § 53 of statute, ante, p. 195). The appellate jurisdic- tion in these proceedings is merely of errors in the court below ; the judgment is merely affirmed or reversed, and the whole proceedings are like those formerly had on certiorari (Pruyn v. Tyler, 18 Mow. 331 ; Whitney «. Bayard, 2 Sandf. 634). Notice of appeal to state g^ronnds tliereof. Code, § 353. 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 defendant did not appear, he shall have twenty days, after personal notice of the judg- ment, to serve the notice of appeal provided for in this and the next section. Must specify the grounds. The notice of appeal should clearly specify the errors relied on for reversal (1 Hilt. 73, 199; Id. 893; Id. 537; 6 All. 183; 15 How. 33; 16 Id. 471), and although the notice of appeal must be served within twenty days after the judgment (1 Code i2. 54; 7 How. 108), the ob- jection that the service was not made in time, must be by motion to iismiss (3 E. D. Smith, 139). j 328 LANDLOBD AISTD TENANT. Form of notice of appeal. Before Esq., Justice of the Peace. John Dob, as landlord, V. Richard Eob, as tenant. To the said justice, and to John Doe, the landlord above referred to, Gent. Take notice that the tenant above named hereby appeals to the county court of county, from the judgment rendered in favor of said landlord and against said tenant, in the proceedings tried before said justice, on the day of 187 , -where- in John Doe as landlord was the applicant for the possession of the premises known as No. street in the town of in the county of in the state of New York, and in which Richard Roe was the tenant, and that the following are the grounds of such appeal [here state with particularity the grounds of appeal in detail]. Dated 187 Tenant. By John Fbkguson. his attorney. No. street, Town of county. [The statute in reference to these appeals speaks of an "affida- vit for appeal " (vide § 53, ante, p. 195), as if to require such affidavit, with the notice ; but the explanation to this probably is that by the Revised Statutes (2 B. S. 358) an appeal from a judgment ren- dered by a justice of the peace in a civil action was not of course, and was effected only by the presentation by the aggrieved party to a justice of the Supreme Court of an " affidavit " setting forth his ground of appeal as upon certiorari ; and if the judge deemed the alleged ground sufficient, he endorsed on the affidavit an allowance of the appeal. By the Code this' mode of appeal was changed, and the only mode now recognized is that prescribed by § 351 (ante, p. 326). This provision was no doubt overlooked at the time the reference to an affidavit was made in § 53.] The right to appeal under the Code is absolute, while under the former rule it was not. Service of notice of appeal. Undertaking to be given. Code, part of § 354. The notice of appeal must, within the same time, be served on the justice person- ally, 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 residence with some person of suitable age and discretion ; or in case the respondent is not a REVIEW BY APPEAL. 329 resident of such county, or can not after due diligence be found therein, in the same manner 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 be found in the county, the notice may be served on the re- spondent, by leaving it with the clerk of the appellate court ; and the appellant must, at the time of the ser- vice of the notice of appeal on the justice, or on his clerk, as herein provided, pay to such justice or clerk, the costs of the action included in the judgment, to- gether with two dollars costs of the return, which shall be included in the judgment for costs on reversal ; and the appellant shall also execute, on the appeal, a written undertaking on his part, with one or more sufficient sureties, to the effect that the appellant will pay all costs, disbursements, and extra costs awarded against him in the court below, if such judgment shall be affirmed by the appellate court, on such appeal, to- gether with all costs and damages which may be awarded against him thereon ; such sureties to justify in double the amount specified in the undertaking, such under- taking and the sufficiency of the sureties to be approved by the justice of the court below, or one of the judges of the Court of Common Pleas ; or the appel- lant may deposit with the clerk of the Court of Com- mon Pleas the costs, disbursements, and extra costs included in the judgment in the court below, and the sum of fifteen dollars, to meet any costs that may be awarded against him in such appeal ; the undertaking, when executed and a,pproved, to be filled with the clerk of ihe Court of Common Pleas ; the amount so de- posited shall be repaid by said clerk to the appellant, if he succeed on the appeal ; and in case the judgment be affirmed, the said clerk shall, after-execution is issued, pay over the amount so '^deposited, to the respondent, which shall be credited on the execution issued' on the judgment of affirmance, to the extent 43 330 LATSTDLOED AKD TEITANT. thereof, and the balance, if any, on the execution issued on the judgment appealed from. [The note to § 351 is applicable to this section. The reference to the Common Pleas in the part of this section retained evidently refers to appeals from the Marine and District Courts in the city of New York. As to approval of undertakings on appeal to the county court, see § 356, post, p. 331.] SevTice of notice of appeal. Where the respondents are joint owners, service of the notice of appeal on one will suffice for all (Geisler v. Acosta, 9 N. Y. ^'it ; Man- deville b. Reed, 13 Ahh. Pr. 173). And unless the costs and return fee are first paid, the justice can not be compelled to make a return (Aldrich v. Ketchum, 13 N. T. Leg. Obs. 319; Van Heusen v. Kirk- patrick, 5 Eow. 432; S. C. 1 Code B. (iV. S.) 74; Bray v. Redman, 6 Cal. 387). If the non-payment of the fee is the reason why the re- turn is not made, that fact is ground for dismissing the appeal (Van Heusen v. Kirkpatrick, supra). If the justice has made his return without payment of his costs and fee, that fact is no ground for dis- missing the appeal (Bray v. Redman, 6 Gal. 387 ; Van Heusen v. Kirpatrick, supra). 2. Security upon appeal to county court without stay of proceedings. Before Esq., Justice of the Peace. 1 In the summary proceedings where- in John Dob is landlord and Richard Rob is tenant. "Whereas on the day of 187 , in proceedings under the statute in relation to summary proceedings to recover the possession of land, John Doe as landlord recovered a judgment against Richard Roe as tenant, for the possession of the premises known as street, in the town of in the county of and state of New York, with $ costs. And the above named ap- pellant, feeling aggrieved thereby, has appealed therefrom to the county court of the county of Now, therefore, we, Richard Roe, of No. street in the town of county of New York, and John Smith, of No. street in said town do hereby, pursuant to the statute in such case made and provided, undertake that the said ap- pellant will pay all costs, disbursements, and extra costs awarded against him in the court below, if such judgment shall be affirmed, or if the appeal be dismissed, together with all costs and damages which may be awarded against the said appellant thereon; and do also un- dertake that if judgment be rendered against the appellant, and exe- EEVIEW BY APPEAL. 331 cution thereon be returned unsatisfied, in whole or in part, we will pay the amount unsatisfied. Dated, the day of 187 . RICHARD ROE. JOHN SMITH. AffldaTit of surety. County of New York, ss. John Smith, being duly sworn, doth depose and say, that he re- sides at No. street, in the town of in the county of in the state of New York, and is a house- holder (or freeholder) therein; that he is worth the sum of dollars, over and above all his debts and liabilities, and exclusive of property exempt by law from execution. Sworn to before me, &c. JOHN SMITH. s Acknowledgment. County of New York, ss. On this day of 187 , before me per- sonally came Richard Roe and John Smith, to me personally known to be the same persons described in, and who executed the foregoing in- strument, and they severally acknowledged that they executed the same. 3. Security upon appeal for the purpose of staying proceeiings, (See § 53, of statute, ante, p. 195.) This form is the same as the preceding one with the addition of the following condition : And we further undertake and promise that we will pay all the rent that has accrued or may accrue upon said prem- ises mentioned, and described in said proceedings, subsequent to the said application to said justice. Witness our hands this day of 187 . RICHARD ROE. JOHN SMITH. The usual justification of the surety as to his qualifications and ac- knowledgment of execution by the parties are to be added. When the undertaking is to stay the warrant, the justice must be guided as to the number of the sureties, and the amounts in which they must justify, by the amount of the annual rents, and the probable time that will elapse before a decision on the appeal can be obtained, and the under- tabang should be proved or acknowledged (Benedicts Pr. pp. 703, 704, 5th ed.). Form of undertaking. § 356. 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 appel- lant, and execution thereon be retui;ned unsatisfied in 33^ LANDLORD AND TEKAN*. whole or in part, the sureties will pay the amount un- satisfied. [As to form of undertaking, vide pp. 330, 331, §§ 52, 58 of statute, ante, p. 195. "■ Errors and omissions. A misstatement of the date of judgment in an appeal bond is fatal (3 Wend. 436) ; it is erroneous, however, to dismiss an appeal because the bond omits the date (2 Wend. 292) ; and an undertaking which substantially conforms to the above section is sufflcieat (31 N. T. 350), and an appeal without an undertaking is a nulity (88 Ba/rb. 338). tExecntion, how stayed. § 357. The delivery of the undertaking to the court below shall stay the issuing of execution ; or if it have been issued, the service of a copy of the undertaking, certified by the court below, upon the oflScer holding the execution, shall stay further proceedings thereon. Effect of appeal and extent of stay. The undertaking stays all further proceedings, but does not affect those already had (2 E. B. Smith, 259). And the provision in relation to summary proceedings to recover the possession of land which au- tborizes such proceedings, when instituted before a justice of the peace, to be removed by appeal to the county court, in the same man- ner and with the like effect, as appeals from the judgments of justices of the peace in civil actions, and which directs, that in case of appeal by the tenant, in order to stay the issuing of a warrant or execution, se- curity shall also be given for the payment of all rent accruing, or to accrue upon the premises subsequent to the application to the justice, does not apply — so far as relates to a stay — to proceedings instituted against a tenant solely on the ground that he is holding over after the expiration of his term. That section of the statute does not create a right to stay the issuing of a warrant in a case where it did not pre- viously exist, but it merely provides that in order to exercise the right to stay, in cases where it previously existed, security shall be given as therein prescribed, and an appeal to the county court, taken by virtue of the act of 1849, of itself, merely transfers the proceedings to the county court for the purpose of review, but does not affect the power of the justice to issue a warrant to enforce his judgment, and a war- rant so issued, being regular and valid, and the landlord having been put into possession of the premises by virtue of it, he is justified in using so much force as is necessary to defend himself and maintain his possession. And in an action against him by the tenant, for an alleged assault and battery committed in repelling the attempt of the tenant to re-enter, the only question for the jury is whether the de- fendant used an excess of force. And even though it be assumed that a justice of the peace has not power to issue a warrant to dispossess a tenant after an appeal by the latter to the county court, yet his judg- EEVlEW Bt APPEAL. 33B ment until reversed or set aside, is of force as an adjudication, and it determines tliat the lease has expired, and the landlord is entitled to the possession of the premies. The fact that an appeal has been taken does not afiEect the conclusive nature of the judgment as a bar, while it remains unreversed. It is, therefore, erroneous to charge that the judgment ceased to be res adjudicata, when the appeal was perfected. Where the landlord and owner in fee, claiming that the term has ex- pired, enters without process and without force, during the tempor- ary absence of the tenant, the latter has no right to take the law into his own hands and attempt to dislodge the former by force. The landlord, being in the actual possession, has a right to maintain it, and to use force, if necessary, for that purpose (Sage v. Harpending, 49 Bari. 166). In case of death of justice, undertaking to be filed. Code, § 358. 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 can not be delivered to him, it shall be filed with the clerk of the appellate court, and notice thereof given to the respondent, or his attorney or agent, as provided in § 354 ; it shall thereupon have the effect as if delivered to the justice. Filing notice of appeal instead of service. Code, § 359. When, by reason of the death of a justice of the peace, or his absence from the county, or any other cause, the notice or appeal can not be served as provided by § 353, it may be served by leaving the same with the clerk of the connty. Keturn, when and how made and compelled. Code, § 360. The court below shall thereupon, after ten days, and within thirty days after service of the. notice of appeal, make a return to the appellate court of the testimony, 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 retarn unless the fees pre- scribed by the last section of this chapter be paid on S34 LANDLORD AKD TENAM"!. the service of the notice of appeal ; provided, however, that in cases where the amount for which judgment is demanded by either party in his pleadings in the court below exceeds fifty dollars, or where the value of the property recovered, as appears from the verdict or judgment, shall exceed fifty dollars, the testimony need not be returned ; but in such case the court be- low shall return the process by which the action was commenced, with the proof of service thereof, and the pleadings or copies thereof, the proceedings and judg- ment, together with a brief statement of the amount and nature of the claim or claims litigated by the respective parties, and in all cases the notice of appeal shall be annexed to the return ; but in cases where the appellant shall, in accordance with the provisions of § 352 of this act, state in the notice of appeal, that such appeal is taken upon questions of law only, the court below shall return to the appellate court the testimony, proceedings, and judgment. [It is evident that on appeals from judgments In summary proceed- ings the testimony must be returned -without any regard to the amount recovered, or the vaUie of the property in controversy. The excep- tion made in cases where the recovery exceeds fifty dollars relates only to ordinary civil actions in which new trials may be had in the county court, and on that account the portion of § 353 referred to in the above section (360) was not printed herein.] The return, what to contain. The return should set forth the day whereon judgment was ren- dered, the date of thetrial, the day issue was joined, the adjournments, to what time, and the date when the process was returnable (Peters v. Diossy, 3 jEJ. D. Smith, 115). The pleadings as well as the evidence, must be contained in the return (Roulston v. McClelland, 3 Id. 60). See, also, Smith v. Van Brunt {Id. 584). All the testimony received by the justice on the trial must be contained in the return to an appeal under the Code (Orcutt v. Cahill, 34 iV. T. 578 ; Ogden «. Sanderson, 3 B. D. Smith, 167. See, however, Low v. Payne, i N. T.; 4 Gomst. 347; Prosser a. Secor, 5 Barb. 607). The return of the court below must contain all the testimony and proceedings. Where the return is not sufficient to present the whole case, the parties must call for a further return (McCafferty «. Kelly, 3 Sandf. 637 ; Belshaw v. Colie, 3 Code B. 184). The appeal will be dismissed where no notice of appeal is attached to the return (Gabre v. Sturgas, 1 Bilt. 160 ; Bush «. Dennison, 14 Baw. 307). Unless the contrary distinctly appears, it will be pre- REVIEW BY APPEAL. 335 sumed, where the justice's return sets forth evidence in detail, that the whole testimony is given ; it will not be presumed that the justice had evidence before him on the trial which he does not embody in the return (Orcutt v. Cahill, 24 N. Y. 578; Hance v. Cayuga and Susque- hanna Kailroad Co., 36 W. T. 438; Calligan v. Mix, 13 IJow. 495; the head-note in this case is incorrect ; 13 Sow. 96, corrects it. See, how- ever, Low ». Payne, 4 iV". Y., 4 Const. 347; Prosser v. Secor, 5 Barb. 607). The return of the justice must show what judgment was rendered; unless this is done the appeal will be dismissed, with costs (Woodside ». Pender, 2 E. D. Smith, 390; conf/ra, Klenck ». De- Forest, 3 Code B. 185). If the return is lost, the parties may consent that the justice sign the copy submitted, and add the pleadings, or obtain a new return. Unless the papers are properly submitted, the appeal will be dis- missed (Smith V. Van Brunt, 2 E. B. Simth, 534). Impeaching return. The justice's return is conclusive as to the statements contained in it; it cau not be impeached or contradicted by affidavit. The only way that the return can be corrected is bv motion to the court (Spence «. Beck, 1 Hilt. 376; Kilpatrick v. Carr, 3 Abb. 117; Mitchell «. Men- kle, 1 Eilt. 143; Kelly v. Brower, Id. 514), and the averment that it is untrue, or incorrect and defective in its statements, or that it con- tains immaterial matters, is not sufficient. Nor is the fact that the attorney for the defendant in error drew up the return, and that it was afterwards "corrected, altered, and fixed, "by the justice, unless abuse is clearly shown (Smith i). Johnson, 30 How. 374 ; see, also. Hunter v. Graves, 4 Cow. 537), and the return of the constable, that he served the summons, is conclusive. It gives the justice jurisdiction to pro- ceed with the cause at the hour when the summons was returnable ; and it can not be impeached or brought in question on an appeal from the judgment. If the constable did not serve a copy of the summons, the defendant must seek his remedy against the constable by an ac- tion for a false return (Haughey v. Wilson, 1 Bilt. 359). But in some of the cases it was held that upon an appeal the false return may be questioned, if such point is raised as error in fact (See the following cases: Col. Insurance Co. v. Force, 8 How. 353; Putman v. Man, 3 Wend. 302; Allen v. Martin, 10 Id. 300; Elwell v. McQueen, Id. 519; Case V. Redfleld, 7 Id. 398 ; Beaty ». Perkins, 6 Id. 382 ; Brintnall v. Foster, 7 Id, 103). False return. A justice of the peace is liable for a false return to an appeal, for any damages which a party to such appeal may sustain by reason of such false return. He acts mininisterially in making a return to an appeal (MacDonell v. Buffum, 31 How. 154 ; Houghton v. Swarthout, 1 I)e?iio, 589 ; see, also, Tompkins v. Sands, 8 Wend. 463 ; Cunningham ». Bucklin, 8 Cow. 178; Scott ». Rushman, 1 Id. 212). Form of justice's return. [ Title of proceedings.^ To the County Court of the county of In obedience to the requirements of section 360 of the Code of 336 liANDLORD AND TENAWT Procedure, I a justice of the peace of in said county, do hereby certify and return to said court, that on the day of 187 , a summary proceeding under the statute was commenced before nie, by John Doe as landlord, against Richard Roe as tenant, by the presentation of the affidavit by said landlord, which is hereto annexed marked No. 1. Upon which the summons hereto annexed, marked No. 3, was issued by me, and was afterwards returned to me with the proof of service thereon en- dorsed, marked No. 3. That at the time and place designated in said summons, for the re- turn thereof, the said landlord appeared in person, and the said tenant appeared by his attorney and filed the counter affidavit hereto annexed, marked No. 4, and demanded a trial by jury and paid the necessary fees to entitle him thereto. Issue being thus joined, the proceedings were adjourned on motion of until the day of 187 , at two o'clock p. m. at my office aforesaid. I thereupon issued a venire for a jury, returnable at said time and place, and the constable to whom the venire was delivered, returned the same with the panel of jurors duly summoned, and the said venire and return are also annexed hereto, marked respectively Nos. 5 and 6. At the time and place to which said proceedings were adjourned, the parties again appeared and answered ready for trial. Of the jurors so summoned and appearing, the following persons were duly drawn, and by me sworn as the jury to try said proceed- ings, to wit (Here insert the names). The plaintiff to maintain his proceeding called who being duly sworn testified as follows (Here state the testimony upon both sides in the order in which it was given, stating which side called the witness, together with all the objections made by either party, and the decision of the court upon each one). The landlord's testimony here closed, and the tenant moved to dismiss the landlord's proceedings upon the grounds (Here state them, if any, and the decision). And I further certify that the foregoing is all the testimony given on said trial. The cause was then submitted to the jury; and I further return that, after the proceeding was so submitted, a constable was by me duly sworn to attend the jury, and the jury then retired, under the charge of such constable, to deliberate upon their verdict. After deliberating together, the jury returned into court, before me, and the parties being called, and answering, the jury announced their verdict in open court, whereby they found in favor of the said landlord for the possession of the premises claimed, and forthwith, upon the rendering of said verdict, to wit, on the day of 187 , I rendered judgment upon the said verdict, with $ costs against said tenant, and entered the findings of said jury in my docket, together with said judgment, and included therein the said costs according to the statute in such case made and provided. And I aiso certify, that the annexed is the notice which was served upon me for the appeal in said proceedings, on the day of 187 , and that my fees for return were paid. All of which is respectfully submitted. Dated 187 . Justice of the Peace, EEVIEW BT APPEAL, 337 How made, if justice be ont of offlce. Code, § 361. 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, nevertheless, make a return in the same manner, and with the like effect, as if he were still in office. Fuvllier return may be ordered. Code, § 362. If the return be defective, the appel- late court may direct a further or amended return as often as may be necessary, and may compel a compli- ance with its order by attachment ; and the court shall always be deemed open for these purposes. Keturn conclusive. Affidavits can not be used to modify or impeach the return ; the appellate court must be bound by it. If all the facts are not stated, the party agcrrieved must procure an amendment (Lynsky ». Pende- grast, 3 E. D. Smith, 43; Kilpatrick ■». Carr, 3 Abb. 117; Capewell v. Ormsby, 3 E. D. Smith, 180; Trust a. Delaplaine, 8 Id. 319; Hyland V. Slierman, 3 Id. 334; Riwson v. Grow, 4 M. 18; Bates v. Conkling, 10 Wend. 389). In such a case, an amended return will be ordered, and upon proper application the justice will be required to answer specific interrogatories in regard to any matters clearly material to the case (Smith ». Johnston, 30 Hoio. 374). And a party may compel the return of evidence that was stricken out ia the court below, in order that he may bring more distinctly before the appelate court the points relied upon for a reversal of the decision (Id.). How to procure amended retnm. If either party be dissatisfied with the return made by the justice, he can move the county court at any time for an order requiring an amended return. The motion should be made upon affidavits show- ing the inaccuracies and omissions complained of, and may be brought on upon an order to show cause in the following form, or upon a no- tice of motion of the same purport. Order to show cause why amended return should not be made. County court of the county of John Doe, Respondent, V. RiCHAED Rob, Appellant. Upon the annexed affidavit, let the justice be- 43 338 LANDLOED A10> TENANT. fore whom this proceeding was tried, file an amended return herein, answering the interrogatories hereinafter propounded, or show cause before the county court of county, on the day of 187 , at ten a. m. of that day, at the court, house, at in said county, why the said justice should not make a further and amended return in said proceeding, by an- swering the following interrogatories, viz. : First. Whether or not John Jones, a witness called and sworn for the landlord, testified on his direct examination as follows (Here state the testimony called for). Second. Whether or not Paul Jones, a witness called and sworn for the tenant, testified on his cross-examination as follows (Here state the testimony called for). Third. Whether or not the tenant objected to the testimony of (Here state the particular testimony objected to, with the objection thereto and exception). Fourth. Whether or not, at the close of the testimony, the tenant moved for a non-suit on the grounds (Here state the grounds fully). Fifth. Whether or not the paper referred to in said affidavit as Exhibit No. 1, was offered in evidence by the tenant's counsel, and whether it was excluded by you, and whether he excepted to your decision ruling it out. Sixth. (State any other proposition or interrogatory that may be proper), and why the tenant should not have such other and further relief as may seem proper in the premises ; and that a copy of this order be served upon the attorney for the landlord herein before the hearing of said motion. Dated 187 County Judge. If justice be dead, insane, or absent from State, witnesses to be examined ; if in another coanty, return may be compelled. Code, § 363. If a justice of the peace, whose judg- ment is appealed from, shall die, become insane, or remove from the state, the appellate court may exam- ine witnesses, on oath, to the facts and circumstances of the trial or judgment, 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 re- turn, as if he were still within the county where the judgment was rendered. Betarn in case of justice whose term of ofBce has expired. A return to a writ of certiorari or to an appeal, may be made by a justice of this coiu't, and is valid, notwithstanding the judge's EEVIEW BY APPEAL. 339 ofScial term has expired. The rule is the same whether or not the ■writ is served or the appeal brought, or before or after he has gone out of office (Conover v. Devlin, 15 How. 470 ; 8. 0. 6 Abb. 328, sub. nom. People «b rel. Devlin v. Peabody, and numerous cases cited in this case (Harris v. Whitney, 6 Sow. 175, overruling Peck v. Foot, 4 Id. 425). Hearing upon return. Dismissing appeal if not brought on. Code, part of § 364. If a return be made, and the appeal is from a judgment where a new trial may not be had, as provided by this chapter, it may be brought to a hearing at a general term of the appellate court, upon 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. The balance of this section relates to new trials in the county court, and has no application to summary proceedings, and is there- fore omitted. Only one notice necessary. After an appeal has been once regularly noticed for argument by either party, and regularly placed on the calendar, it remains thereon without further notice until finally disposed of ; and where an appeal was once noticed for argument and placed on the calendar by the ap- pellant, and was called at a subsequent term, and the appellant not appearing, the respondent took a judgment of affirmance by default, without any proof of his having noticed the appeal for argument; held regular (Townsend v. Keenan, 2 Hilt. 544). To be heard on original papers. § 365. The appeal shall be heard on the original papers, or certified copies thereof; and no copies thereof need be furnished for the use of the court. Hearing in county court. On such appeal the appellate court will not review matters of discretion or questions of practice (1 Eilt. 143) ; and wiU look only to the justice's return (1 Id. 143) ; and are bound by it ; affidavits in addition thereto can not be used (3 H. D. Smith, 43; Id. 180; Id. 234; 340 LANDLOitt) AND TENANT. Z Id. 319; 4 Id. 18; 3 Abb. 117); and every reasonable intendment will be made to support the judgment (4i Barb. 459) ; and the court should give the proceedings a fair and liberal construction (38 N. T. 117) ; and a judgment should not be reversed unless it clearly appears that the evidence does not justify it, even although the appellate court might have arrived at a different conclusion (31 if. 7. 480; 35 How. 465; 1 Daly, 383; ZXHow. 373). The fact that irrelevant or improper evidence was admitted, is no ground for reversing the judgment, where there was abundant competent evidence presented (Spencer v. Saratoga and Washington Railroad Co., 13 Barb. 383; Bort v. Smith, 5 Id. 383; Moore ». Somerindyke, 1 Rilt. 199; Buck v. Waterbury, 13 Barb. 116; Andrews®. Harrington, 19 Id. 343). It is a well- settled rule that a judgment will not be set aside, even on a bill of exceptions, for testimony erroneously admitted, when the court can see clearly that it has occasioned no injury to the party objecting (Welles V. Cone, 55 Barb. 585, 589. See, also, Bort v. Smith, 5 Id. 383, 385; Crary «. Sprague, 13 Wend. 41; Benjamin v. S>m\\h, Id. 404). If, however, the evidence is clearly illegal, and affects a material issue in the case, and a proper objection is taken, if it is admitted, and judgment is rendered against the party, it is good ground for reversing the judgment (Williams «. Pitch, 18 N. T. 546; Erben v. Lorillard, 19 N. T. 399, rev'g S. C. 33 Barb. 82; Worrall v. Parmelee, 1 N. 7. 519; Wilmot v. Richardson, 6 Duer, 338; Murray «. Smith, 1 Id. 413; Tuttle v. Hunt, 2 Oow. 436; Whiting ». Otis, 1 Boaw. 430, 434; Dresser «. Ainsworth, 9 Barb. 619; Ward v. Washington Insurance Co., 6 Boaw. 230; Penfield «. Carpenter, 13 Johns. 350; Weber v. Kingsland, 8 Boaw. 415, 443; Hahn v. Van Doren, 1 E. B. Smith, 411; Main «. Eagle, Id. 019, 630; Beldens. Nlcolay, 4 J. Pierce, 3 E. D. Smith, 355). Objections and exceptions. Any objection that by possibility could be obviated on the trial must be then and there made, or is unavilable on appeal (1 iV. Y. 92 ■ EEVIEW BY APPEAL. 341 8 Sandf. 399; 4 Id. 109; 4 E. D. Smith, 478; 1 Hilt. 587; Id. 531; Id. 161; /c^. 73; 3 ^. D. Smith, 310). And see effect of appearance at pagea 77 and 78, and a general exception to a charge of a justice is unvailable, unless it is entirely erroneous (11 Barh.i^^Q; 4 B. B. Smith, 25\.; 4 Bosw. 140; Id. 325; 11 JST. Y. 416; 6 Id. 338; 7 Id. 266 ; 24 Hno. 173 ; Id. 236 ; 30 Barb. 346 ; 8 Bosw. 357 ; 44 Bari. 42; 88 Id. 445; 25 i\r. 7. 315; 26 N. T. 460). Re-hearing of appeal. A re-hearing will not be granted where it is apparent no advantage can result from it (3 Abb. 359) ; nor because the counsel was not prepared to argue the case, and fears the court did not therefore fully understand the questions involved (2 Hilt. 135). Respondent must appear. On an appeal taken from a justice's judgment, the appellate court will reverse the judgment, if the respondent does not appear to argue the appeal (Whitney i\ Bayard, 3 Sandf. 634; Qeraghty v. Malone, 1 Id. 7-34; S. C. 1 Code B. 94. See, however, Bellony v. Alexander, 1 Sandf. 734; S. C. 1 Code B. 64, aubnom. Bellamy ». Alexander). Judgment, how given. Code, part of § 366. 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 affect 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 i'or errors of law or fact. If the appeal is founded on an error in fact in the pro- ceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may de- termine the alleged error in fact on affidavits, and may, in its discretion, inquire into and determine the same upon examination of the witnesses. If the defend- ant failed to appear before the justice, and it is shown by the affidavits served by the appellant, or otherwise, tiaat manifest injustice has been done, and he satisfac- torily excuses his default, the court may, in its discre- tion, set aside or suspend judgment, and order a new trial before the same or any other justice in the same 342 LANDLORD AND TEKAITT. county, at such time and place, and on such terms as the court may deem proper. Where a new trial shall be ordered before a justice, the parties must appear before him according to the order of the court, and the same proceedings must thereupon be had in the action as on the return of a summons personally served. The balance of this section relates to new trials in the county court, and is inapplicable to summary proceedings, and is, therefore, omitted. Judgement roll. Code, % 367. To every judgment upon appeal there shall be annexed the return upon which it was heard, or a certified copy thereof, the notice of appeal, with any offer, verdict, decision of the court, exceptions, case, and all orders and papers in any way involving the merits, and necessarily affecting the judgment, which shall be filed with the clerk of the court, and shall constitute the judgment tqU. Code, § 368. 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. Ordering restitution. Code, § 369. If the judgment below, or any part thereof, be paid or collected, and the judgment be after- wards reversed, the appellate court shall order the amount paid or collected to be restored, with interest from the time of such payment. The order may be ob- tained on proof of the facts made at or after the hear- ing, 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. Where the appellant succeeds on the appeal, and a judgment of reversal is entered generally, without any award of a new trial in the REVIEW BT APPEAL. 343 court below, the statute is imperative that the County Court shall or- der restitution of all that the appellant has lost (Estus v. Baldwin, 9 How. 80; Jacks w. Darrin, 1 Abb. 233). In such a case, there will not be a complete restitution, unless the appellant is allowed the costs of defending the action before the justice, and of prosecuting his appeal in the county court (Id.). If the return of the justice shows that the judgment has been paid, this will be sufficient proof of the fact, and the appellate court will order restitution as a part of the judgment, which may be collected by execution, in the usual manner, with costs (Jacks V. Darrin, 1 Abb. 233 ; Kennedy «. O'Brien, 3 K D. Smith, 41 ; Sheridan v. Mann, 5 How. 301 ; S. C' 3 Code B. 313). So, where it appears from a transcript of the docket of the justice that the judg- ment has been paid, tlie appellant court, upon a reversal of the judg- ment, will order restitution (Hunt ». Westervelt, 4 E. D. Smith, 335). On a motion for restitution the order becomes part of the judg- ment, and can be collected on execution with the costs (3 E. H. Smith, 41). Setting off costs, and recovery. Code, § 370. If upon an appeal a recovery be had by one party, and costs be. awarded to the other, the ap- pellate court shall set off the one against the other, and render judgment for the balance. Costs on appeal ; appellant to state in his notice of appeal fvherein the judgment shall be more favorable. Code., % 371. Costs shall be allowed to the prevailing party in judgments rendered on appeal in all cases, with the following- exceptions and limitations : In the notice of appeal, the appellant shall state in what par- ticular or particulars he claims the judgment should have been more favorable to him. If he claims that the amount of judgment is less favorable to him than it should have been, he shall state what should have been its amount. Within fifteen days after the service of the nptice of appeal, the respondent may serve upon the appellant and justice an offer, in writing, to allow the judgment to be corrected in any of the particulars men- tioned in the notice of appeal. The appellant may, thereupon, and within five days thereafter, file with the justice a written acceptance of such offer, who shall 344 LANDLOED AND TENANT. thereupon make a minute thereof in his docket, and correct such judgment accordingly, and the same so corrected shall stand as his judgment, and be enforced accordingly ; and any execution which has been issued upon the judgment appealed from, shall be amended by the justice to correspond with the amended judg- ment ; and no undertaking given to stay execution shall be enforced for more than the amount of the cor- rected judgment. If such offer be not made, and the judgment in the appellate court be more favorable to the appellant than the jndgment in the court below, or if such offer be made and not accepted, and the judg- ment in the appellate court be more favorable to the appellant than the offer of the respondent, the appel- lant shall recover costs ; provided, however, that the appellant shall not i-ecover costs unless the judgment appealed from shall be reversed on such appeal, or be made more favorable to him, to the amount of at least ten dollars. If the offer be made, and accepted by the appellant, the appellant shall recover all his disburse- ments on appeal, and all his costs in the court below. But the appellant shall not recover costs except as pro- vided in this chapter. The respondent shall be en- titled to recover costs where the appellant is not. Whenever costs are awarded to the appellant, he shall be allowed to tax as part thereof the costs and fees paid to the justice on making the appeal, as dis- bursements, in addition to the costs in the appellate court ; and when the judgment in the suit before the justice was against such appellant, he shall further be allowed to tax the costs incurred by him, which he would have been entitled to recover in case the judg- ment below had been rendered his favor. If, upon an appeal, a recovery for any debt or damages be had by one party, and costs be awarded to the other party, the court shall set off such costs against such debt or dam- ages, and render judgment for the balance. EEVIEW BY APPEAL. B45 Amount of costs. The costs shall be as follows : To the appellant, on reversal, fifteen dollars. To the respondent, on the affirmance, twelve dol- lars. If the judgment appealed from be reversed in part and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the appel- late court may award, not exceeding ten dollars. If the appeal be dismissed for want of prosecution, as provided by section three hundred and sixty-four, no costs shall be allowed to either party. In every appeal the justice of the peace before whom the judgment ap- pealed from was rendered, shall receive two dollars for his return. If the judgment be reversed for an error of fact in the proceedings, not affecting the merits, costs shall be in the discretion of the court. If in the notice of appeal the appellant shall not state in what particular or particulars the judgment should have been more favorable to him, he shall not be entitled to costs unless the judgment appealed from be wholly re- versed. A portion of this section relates to costs in new trials in the County Court, and being inapplicable to summary proceedings, it was on that account omitted. Certiorari, or appeal by one not a party. Summary proceedings can not be reversed on certiorari, brought by one not a party to the proceedings, though dispossessed under the warrant, where by the record the proceedings appear to have been regular, and the only grounds of irregularity appear by extrinsic facts alleged in his affidavit on the application for the certiorari (Starkweather v. Seeley, 45 Bari. 164). If, however, a husband is in fact the tenant of premises, and has been removed from the possession by summary proceedings under the statute, instituted against tlie wife for non-payment of rent, the husband is alone entitled to judgment of restitution ; and he alone should be the relator in a certiorari to review and reverse the proceedings and judgment, for the court can not award restitution in favor of the wife or other person not a party to the proceedings (The People ex rel, Lawson v. McCaffrey, 43 Bwrb, 530). 44 346 LANDLORD AND TENANT. CHAPTER XXXVII. SQUATTER ACT. I. The act. II. Forms thereunder. The act. Chapter 396. Ail act to punish nuisances, and malicious tres- passes on lands. Passed April 13th, 1857. The people of the State of New York, represented in senate and assembly, do enact as follows : Trespassers on lands. Penalty therefor. § 1. Any person who shall hereafter intrude or sqaat upon any lot or piece of land situated within the bounds of any incorporated city or village without license or authority from the owner thereof, or who shall place thereon any hut, hovel, shanty, or other structure, without such license or authority, or who shall place, erect, or occupy within the bounds of any street or avenue of such city or village, any hut, hovel, shanty, or other structure, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment in a county jail not exceeding six months, or by a fine not exceeding five hundred dollars, or by both such fine and im- prisonment. Serying of notices. § 2. The owner of any lot or piece of land within SQTJATTEB ACT. 347 the bounds of any incoi-porated city or village, may give notice to any intruder or squatter who may have heretofore intruded or squatted thereon, or who shall have succeeded to any other intruder or squatter thereon, to quit the same on a day to be specified, which shall not be less than ten days thereafter ; which notice may be left upon the premises, addressed to the occupant or occupants thereof, vpithout specifying their names ; and in case such intruder or squatter shall not quit the said premises at or before the expir- ation of the time specified in such notice, he and they shall be deemed guilty of a misdemeanor, and upon conviction may be punished by fine or imprisonment or both, in the manner and to the extent provided in the preceding section. Kemoral of nuisances. § 3. The owner of said lot or piece of land upon which any ^hut, hovel, shanty, or other structure shall or may have been placed without his previous license or authority, may cause the same to be removed and abated, and the intruders or squatters thereon to be removed from the said lot or piece of land at any time after the expiration of the ten days, or other time specified in the notice in the next preceding section mentioned. II. Forms under said act. 1. Notice to quit under squatter act. 2. Complaint against Squatter. 3. Warrant against Squatter. 1. Form of notice to quit, under Squatter. Act. ■ 1 Owner, Occupant. \ J Please to take notice, that I am the o«fner of the lot or piece of 348 LANDLORD AND TENANf. land, situate [here insert description of premises] in the city of New- York, upon which you have intruded and squatted, and that I require you to quit the same on the day of 187 , pursuant to the statute entitled "An act to punish nuisances and malicious trespasses on land " (Laws 1857, chap. 396), and fail not, under the pains and penalties of the law. Dated New York, 187 Owner. To ) the occupant of said premises. ) 2. Complaint against sqnatter. State of New York, city and county of New York, ss. John Doe, of the said city and county, complains of Eichard Roe, of the same place, and for cause of complaint, the said John Doe, after being first duly sworn according to law, under oath, says, that he is the owner in fee simple of the lot and premises in said city and county, described as follows, to wit: (Here describe premises) and that the said Richard Roe did, contrary to the act of the legislature of the state of New York, entitled, ' ' An act to punish nuisances and mali- cious trespasses on lands," passed April 13, 1857 (chap. 396), intrude and squat upon the said lot and piece of land aforesaid (the same be- ing within tlie limits of an incorporated city), without license, or au- thority from the owner thereof, and that the said Richard Roe did, in further violation of said act, place upon said lot and piece of land, a shanty [or other structure] without license or authority from the owner of said lot and piece of land, and still continues said shanty upon said lot and piece of land, without any lawful license or authority, and in violation of law. — That on the day of , 187 , this deponent, as such owner aforesaid, caused a notice to be served upon the said Richard Roe, of which the annexed is a copy, wherein and whereby the said Richard Roe was required to quit the said lot and piece of land, on the day of 187 (ten days' notice), pursuant to the pro- visions of said statute, and that notwithstanding said notice, the said Richard Roe still continues in possession of said lot and piece of land, without any legal authority, and in violation of law. The said John Doe, therefore, prays that the said Richard Roe may be apprehended, and proceeded with according to law. JOHN DOE. Sworn to, &c.* ) 3. Warrant against sqnatter. State of New York, city and county of New York., ss. To any of the policemen of the city of New York, or to any mar- shal of said city, Greeting : Whereas, complaint has this day been made by John Doe, of said city and county, on oath, before me, , Justice of , that he, the said John Doe, is the owner in fee * To be sworn to before the magistrate. SQUATTER ACT. 349 simple of the lot and premises in said city and county, described as follows, to wit: (Here describe premises) and that Richard Roe of said city and county, did, contrary to the act of the legislature of the state of New York, entitled "An act to punish nuisances and malicious trespasses on lands," passed April 13, 1857 (chap. 396), intrude and squat upon the said lot and piece of land aforesaid (the same being within the limits of an incorporated city), without license or author- ity, from the owner thereof, and that said Richard Roe did, in further violation of said act, place upon said lot or piece of land, a shanty or other structure, without license or authority from the owner of said lot and piece of land, and still continues said shanty upon said lot and piece of land, without any lawful authority, and in violation of law. That on the day of 187 , said John Doe, as such owner aforesaid, caused a notice to be served upon the said Richard Roe, wherein and whereby the said Richard Roe was required to quit the said lot and piece of land, on the day of , 187 , pursuant to the provisions of said statute; and that, notwithstanding said notice, the said Richard Roe still continues in posse.^ision of said lot and piece of land, without any legal authority, and in violation of law. — You are, therefore, commanded forthwith lo take the said Rich- ard Roe, and bring him before me, the said justice, at my court room. No. street, in the city of New York, for examination upon said complaint, under said statute, and to be dealt with accor- ding to law. Witness my hand and seal, at the said city and county aforesaid, this day of , 187 . To be signed by the justice, [l. s.] With his name and title of office. If, upon the prisoner's examination, sufficient evidence is produced to justify the holding of the prisoner, he should be committed for trial before the appropriate tribunal, and if convicted upon the trial, the usual record of such conviction is to be made and signed. 360 lANDLOED AWD TEWANT. OHAPTEK XXXVIII. LIABILITIES INCIDENTAL TO KEMEDIES. I. Liability of justice and of landlord, in cases in which the justice had no jurisdictioa. n. Liability of landlord to action for damages in cases in which the adjudication in summary proceedings is reversed upon cer- tiorari. I. In cases in which the justice had no jurisdiction. It is a general principle that the jurisdiction of all courts and officers may be questioned whenever the proceedings or decision of such courts or officers are made the foundation of any claim (Broadhead v. McConnell, 3 Barb, at p. 183, citing Borden «. Fitch, 15 Johns. Rep. 141 ; Thompson, 0. J., Mills n. Martin, 19 Id. 33 Spbwoee, Ch. J. ; Latham v. Edgerton, 9 Oow. Rep. 227, Sutherland, J., and the other cases referred to in Gowen & HilV s Notes to Phil. Ev. p. 801, note 551, and Clinton, Senator, in Yates v. Lans- ing, 9 JoJm. Rep. 431 to 487). This principle applies to all courts, whether of general or special jurisdiction, and to all questions of jurisdiction, whether over the subject-matter or over the parties. There is, however, a practical difference between the modes of raising the question of jurisdiction, dependent upon the character of the court, whether it be a court of general or special jurisdiction. The authority of courts of general juris- diction, both over the subject-matter of the suit and the parties, is always presumed, and those who deny it must take upon themselves the burden of over- turning this presumption ; while nothing is presumed LIABILITIES INCIDENTAL TO REMEDIES. 351 in favor of courts or officers of special jurisdiction, those who claim a right under their proceedings or decisions, must show the authority to make them. If the court has no authority, to make the decision, the decision has no efficacy whatsoever, and is entitled to no legal respect or recognition. So that the juris- diction of the court making the decision is always a proposition embraced in the above general rule (Broadhead ». McConnell, supra). The court of appeals in the recent case of The People w. Wm. M. Tweed (not yet reported), in sustaining ''these same principles (per Allen, J.), said : " It is no new feature in the law that inferior magistrates may, when thereunto called, sit in judgment upon the jurisdiction of the highest courts, when their process or judgment comes collaterally before them. Trespass will lie for property seized, or for the imprisonment of a person by virtue of the judgment of the highest court of the state, if it has not jurisdiction of the person, or to give the judgment ; and a justice of the peace must pass upon the jurisdiction, if the action chances to be before him for trial. It matters not what the general powers and jurisdiction of a court may be, if it act without authority in the particular case, its judgments and orders are mere nullities, — not voidable, but simply void, — protecting no one acting under them, and con- stituting no hindrance to the prosecution of any right. The distinction between courts of limited and of general jurisdiction is this, that when their acts and judgments are relied upon, either as giving a right or furnishing a defense, the latter is presumed, while that of the former must be proved." The rule is that inferior jurisdictions, not proceed- ing according to the course of the common law, are confined strictly to the authority and power given by the statute. They take nothing by implication, and must show the power given them, under which they act, in every instance ; but when jurisdiction has been, ac- 352 LANDLORD AND TEISTABTT. quired, courts are to be liberal in construing their pro eeedings as respects regularity and form. If the justice have jurisdiction, and merely errs in its exercise, he is not liable to an action for the consecLuences, for the act is voidable only, and can be taken advantage of only on appeal, for, having jurisdiction, he is not liable for errors committed in its legitimate exercise. This free- dom from action and suit is given to judges, not so much for their own sake as for the' sake of the public and for the advancement of justice, "that, being free from actions, they may be free in thought and independ- ent in judgment, as all who are to administer justice," observes Lokd Tenterden, " ought to be." But if the justice act without jurisdiction, or if he transcend his powers, his proceedings will be absolutely void, and he will be liable to an action at the suit of the aggrieved party for all damages sustained thereby. If he proceeds in a cause — e. g., by issuing a warrant of restitution in proceedings for forcible entry and de- tainer — after his power is taken away by certiorari, he becomes a trespasser (Case v. Shepherd, 2 John. Cas. 27). So, too, if he issues a dispossessing warrant on an affidavit which does not show the conventional relation of landlord and tenant (Evertson v. Sutton, 5 Wend. 281); and in Vosbuxgh v. Welch (11 Johns. 175), it was held that if a justice of the peace issues an attachment against the property of a person as an absent debtor, without any proof on oath, before him, of absence or concealment of the debtor, he is liable as a trespasser, and that satisfactory proof, as required by the act, means legal evidence, or such as would be received in the ordinary course of judicial proceedings (see also Tallman v. Bigelow, 10 Wend. 421 ; Kerr v. Mount, 28 If. Y. 659) ; and in Miller v. Brinkerhoff (4 Ben. 118), it was held that where certain facts are required to be proved to warrant the issuing of process in a court of special and limited jurisdiction, if there be a total defect of proof as to any essential point the process will be void. LIABILITIES INCIDENTAL TO KEMEBIES. 353 But where the proof, thought slight and inconclusive, legally tends to establish all the essential facts, the process will be valid when questioned collaterally, and can only be avoided by a direct proceeding to set it aside. By the common law, the regularity of the proceedings under a summary conviction may be questioned in a collateral action. The following case, in which the sub- ject was examined, affords a rule, by which to deter- mine what acts done under a limited jurisdiction can be made the subject of a civil action. In an action of trover for goods, levied by warrant of the commissioners of excise, the question was, —if they adjudge low wines to be strong wines, perfectly made, upon the statute, 12 Gar. 2, c. 23, whether it may be drawn in question again by an action, so as to make the officer charge- able? For the affirmative, the case of a justice of the peace was relied upon ; in which it was held, that an officer was liable to an action for taking a distress pur- suant to his warrant, in case of a rate made upon one who was not liable {mde Gro. Gar. 395, and Dyer, 135). On the contrary, it was insisted, that, the statute having given an appeal, the party had no other remedy ; and that, the commissioners being made judges by the statute, no action lay against them, if they had erred, in a matter of l^ct. The court decided unanimously, that the action was maintainable. Hale, Ch. B. — "First, the matter is not within their jurisdiction, which is a stinted limited jurisdiction ; and implies a negative, viz., that they shall not proceed at all in other cases. But if they should commit a mistake in a thing that were within their power, that would not be examinable here. It is to be considered, that special jurisdictions may be circumscribed : 1. With respect to place, as a leet or corporation. 2. With respect to . persons. 3. With respect to the subject-matter of their jurisdiction: and here the statute limits their jurisdic- tion in all these three respects ; and, therefore, if they 45 354 LAIS^DLOED AND TENAJTT. give judgment in a cause arising in another place, or in other matters, all is void and coram nonjudice, — as if they should, adjudge rose-water to be strpng water ; and here low wines are waters of the first extraction. And though the information before them supposes the matter to be within their power and jur- isdiction, yet the party is not thereby concluded, but he may aver the contrary." And the chief Baron held, against the opinion of Baron Eainsford, " that it would have been against the defendants, even though they had pleaded specially. But it would be otherwise in the case of a brewer or retailer, who are expressly com- prised in the act, — as if the commissioners should ad- judge small beer to be strong ; for they have a jurisdic- tion there, and an appeal lies from their sentence. But where they have no power over the thing, as here they have not, tlie case is altered." Judgment was given for the plaintiff (Terry v. Huntington, Hardr. 480). This doctrine is recognized with the same dis- tinction by Lord Holt (Fullers v. Potch, Holt, 287 ; Garth. 346), and is confirmed by subsequent authori- ties {Cowp. 240 ; 8 East. 404 ; 1 Burr. 595 ; 2 Bl. Rep. 1146). It is however established, that in an action of trespass brought against a magistrate, a subsisting con- viction, — good upon the face of it, in a case to which his jurisdiction extends, — being produced at the trial, is a bar to the action, provided the execution also has been regular ; although the magistrate may have formed an erroneous judgment upon the facts ; for that is properly the subject of appeal ; and, therefore, in cases where an appeal lies, no action can be maintained till the merits have been heard, and the conviction cLuashed thereupon (Fullers «. Fotch, Holt, 287, and Strickland v. Ward, 7 T. R. 631, infra, and see 2 B. & P. 391 ; Massey v. Johnson, 12 East, 81, 82; see also 16 East, 31, per Lord Ellenbokough). In an action of trespass against two magistrates, for LIABILITIES INCIDENTAL TO KEMEDIES. 355 giving the plaintiff's landlord possession of a farm as a deserted farm, under 11 Geo. 2, c. 19, s. 16, where the defendants produced in evidence a record of their proceedings under that act, vrhich set forth all such circumstances as were necessary to give them jurisdic- tion, and by which it appeared that they had pursued the directions of the statute ; it was held, that this was conclusive as an answer to the action. On that occa- sion, Abbot, C. J. said ; " It is a general rule and principle of law, that where justices of the peace have an authority given to them by an act of Parliament, and they appear to have acted within the jurisdiction so given, and to have done all that they are required by the act to do in order to originate their jurisdiction, a conviction dra.wn up in due form, and remaining in force, is a protection in any action brought against them for the act done (Basten v. Carew, 3 B. & O. 649 ; 5 Bowl. & By. 558 ; 2 Dowl & By. Mag. Ca. 563 ; see Dos- well V. Impey, 2 Dowl & By. 350 ; 1 B. & C. 163). But in cases where the want of jurisdiction appears upon the papers or by the conviction itself, an action may be supported before the conviction is reversed or quashed. If, however, the subject-matter be one over which the magistrate has a general jurisdiction, evi- dence exterior to the conviction is not admissible to prove that in a particular case the magistrate drew an erroneous conclusion. ■ II. • Liability of landlord to action for damages in cases in which the adjudication in summary pro- ceedings is reversed upon certiorari. The. statute affirmatively affixes a liability upon the landlord for damages in cases in which the adjudica- tion is reversed by the Supreme Court, by the provision providing that " if the proceedings shall be reversed 356 LANDLOED AND TENAISTT. ■ 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 {vide, § 49 of the stat., ante, p. 194), and effect was given to this provision by the commission of ap- peals in Hay den v. The Florence Sewing-machine Com- pany (54 If. Y. 221). Bestitution in summary proceedings. By § 48 of the statute {vide, p. 194), the Supreme Court may, in the reversal of proceedings, award resti- tution 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. But the court will not award restitution to the tenant, if the term has expired before the judgment of reversal is rendered (Cretien v. Doney, 1 JV. T. 419), and as to costs, vide ante, p. 319. Bestitntion in proceedings of forcible entry and^detainer. As to restitution in these proceedings {vide §§ 22, 23, anie, p. 181), and as to costs (vide ante, p. 315). Chapter of fokMS. 367 CHAPTEE XXXIX. CHAPTER OF FORMS. I. Subpoena. n. Proof of service. m. Order for attachment against witness. IV. Attachment against witness. V. Complaint in ordinary civil action against tenant for rent. VI. Complaint in ordinary civil action against surety of ten- ant for rent. Vn. Ijease, with covenants. Vin. Other covenants for lease. IX. Security for rent. X. Assignment of lease. XI. Mortgage on lease, interest, and insurance clause. XU. Bond to accompany same. Interest clause. Xn. Party wall agreement. XIV. Permission to insert beams in adjoining house. XV. Builder's contract. XVI. Different forms of acknowledgment. Subpcena. State of New York, city and county of New York, ss. The People of the state of New York, to John Smith and John' Jones, Greeting: We command you, and each of you, that, all business and excuses being laid aside, you, and each of you, do appear, in your proper per- sons, before Denis Quinn, Justice of the District Court of the city of New York, for the first .Judicial District, at the court room southwest corner of Chambers and Centre streets, in the city of New York, on day, the day of 187 , at ten o'clock in the forenoon of the said day, then and there to testify those things which you or either of you know, in a certain proceeding now pending before said justice, between John Doe, land- lord, and Richard Roe, tenant, on the part of the landlord. And this B58 LANDLORD AWD TENANT. you, or any of you, are not to omit, under the penalty of fifty dollars, for you, and every of you. Witness my hand at the said city, the day of in the year of our Lord, 187 . DENIS QTJINN, Justice, &c. [The subpoenas in these proceedings must be signed by the justice.] II. Proof of subpoena. City and county of New York, ss. John Peterson, being duly sworn, says, that on the day of 187 , at No. street, in the city of New York, he served the within subpcsna personally, on John Smith and John Jones, the persons named therein as witnesses, by then and there showing to each of them the said subpoena, and deliv- ing to each of them a subpoena ticket, containing the substance of the said subpoena, and paying [or tendering] to each of them at the same time the witness fee of twenty-five cents. Sworn to before me, &c. ) III. Order for attaehinent against witness. [ Title of cause and of court.'] On reading and filing the affidavit of John Peterson showing that a subpoena was duly served on John Smith, on the day of 187 , whereby he was required to appear before me this day, to testify and give evidence in this proceeding on the part of the landlord, and that said John Smith has wholly neglected to attend as therein required, on motion of landlord's attorney, it is hereby ordered that an attachment issue, directed to any marshal of the city of New York, commanding him to attach the said John Smith, and bring him [forthwith, or] on the day of 187 , at 10 A. M., personally before me, the Justice of the District Court of the city New York, for the first Judi- cial District at the court room of said court. No. Chambers street, in the city of New York, to answer for a certain contempt in not obey- ing said writ of subpoena, and commanding the said marshal to detain the said John Smith in his custody, until discharged by me. Justice, &c. The subpoena, with proof of service, should be annexed to this order, and filed with the clerk, so as to make a record authorizing the attachment, and the attachment must be returnable before the same judge who issued it (Kelly v. McCormick, 38 N. T. 318). CHAPTER OF F0KM8. SSi) IV. Attachment against witness. The People of the state of New York, to any marshal of the city of New York, Greeting : We command you to attach John Smith, if he may be found in said city, and bring him [forthwith, or] on the day of 187 , at 10 A. M., before me, the Justice of the District Court, of the city of New York, for the First Judicial District, at the court room, southwest corner of Chambers and Centre streets, in said city, to answer for a certain alleged contempt in not obeying the writ of subpoena, commanding him to appear this day before me, as such justice, to testify and giye evidence in a certain proceeding then to be tried between John Doe as landlord, and Ricliard Roe as tenant, on the part of the landlord, and you are further commanded to detain him in your custody, until he shall be discharged by me, and have you then and there this writ. Witness the hand of the said justice, at the said city, this day of A. D. 187 . DENIS QUINN, Justice, &c. (Seal of court.) Duty and punishment of witness. A witness duly subpoened to attend court, is bound to make extraordinary efEorts to obey the writ ; nothing but extreme poverty and utter inability to attend, or sickness of himself or family, con- clusively proved, will excuse his non-attendance. Unless the con- tempt is purged, the witness will be fined, not only the costs of the attachment, but to the full amount of the costs of the term incurred by the party who subpoened him, if the trial was put off in con- sequence of his non-attendance (15 Wend. 603 ; BurriU'a Practice, vol. 1, page 452). V. Complaint in ordinary civil action against tenant for rent. Court New York. Plaintiff, Defendant. Complaint for rent against tenant. The complaint of the plaintiff against the defendant shows to 360 LANDLOKD AND TENAWT. this court, that the plaintiff, as landlord, by agreement in writing, bearing date on the day of - 187 , executed by him as landlord and by the defendant, as tenant, the said plaintiff let and rented unto the said defendant as tenant, the premises known as No. in the city of New York, for the term of years from 187 , at the yearly rent, or sum of dollars, payable monthly in advance, which the said defendant, in and by said lease, agreed to pay. 2. That on the day of 187 , there became, and was due, under said lease, the sum of dollars, for rent from 187 to 187 , which he promised to pay, but has not. 3. That by means of the said several premises a cause of action hath accrued to the plaintiff against the said defendant to have and to recover the indebtedness aforesaid. Wherefore the plaintiff demands judgment against the defendant for said sum of $ , and interest from 187 , together with costs. Plaintiff's Attorney, No. street. City and county of New York, ss. being duly sworn, says that he is the plaintiff in this action, and that the foregoing complaint is true to the knowledge of this deponent, except as to those matters stated on information and belief, and as to those matters he believes it toj be true. Sworn to, before me this ) day of 187 Notary Public, New York city. VI. Complaint in ordinary civil action against surety of tenant for rent. Court New York. Plaintiff, Defendant. J Complaint for rent against surety. The complaint of the plaintiff against the defendant shows to this court that tlie plaintiff, as landlord, by agreement in writing, bearing date on the day of , 187 , executed by him as landlord, and by , as tenant, the said plaintiff let and rented unto the said tenant, the premises known as No. , in the city of New York, from the term of years, from , 187 , at the yearly rent, or sum of dollars, payable monthly in advance, which the said tenant in and by said lease agreed to pay. OHAPTEE OP FOKMS. 361 3. That on the day of , 187 , there became, and was due, under said lease, the sum of dollars, for rent from , 187 , to , 187 , which the said tenant promised to pay, but did not, of which the defendant was duly notified. 3. That the said defendant in consideration of the said letting, did by an instrument in writing, under seal, bearing even date with said lease, and duly executed by him, covenant and agree to and with the said plaintiff that if default should be made by the said tenant in the payment of the rent or performance of the covenants in said lease contained on the part of the said tenant, he, the said defendant, would well and truly pay the said rent and all arrears thereof, and also all damages that might arise iu consequence of such non-pertbrmance. without requiring notice of such default. 4. That by means of the said several premises a cause of action hath accrued to the plaintiff against the said defendant to have and to recover the indebtness aforesaid. Wherefore the plaintiff demands judgment against the defendant for said sum of dollars, and interest, from 187 , together with costs. Plaintiff's attorney, No. street. City and county of New York, ss. , being duly sworn, says that he is the plaintiff in this action, and that the foregoing complaint is true to the Itnowl- edge of this deponent, except as to those matters stated oa informa- tion and belief, and as to tiiose matters he believes it to be true. Sworn to before me this day of ) 187 . f Notary Public, New Tork city. VII. Lease, with go tenants. This indenture, made the day of 187 , between of the city of New York, party of the first part, and of the same place, party of the second part, witnesseth. That the said party of the first part hath letten, and by these presents doth grant, demise, and to farm let, unto the said party of the second part the premises known as No. street, in the city of New York, with the appurtenances, for the term of years from the day of one thousand eight hundred and , at the yearly rent or sum of to be paid in equal monthly payments in advance on the first day of each and every month during said term. And it is agreed that if any rent shall be due and unpaid, or if default shall made be in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises, and to remove all persons therefrom. And the said party of the second part hereby covenants to pay to the said party ot the 46 362 LANDLOED AND TBNAKT. first part, the said yearly rent as herein specified. And also, to pay the regular annual rent or charge, which is or may be assessed or im- posed according to law, upon the said premises, for the croton water, on or before the 1st day of August in each year during the tenn ; and if not so paid, the same shall be added to the rent then due. And the said party of the second part further covenants that he will not assign this lease, nor any interest therein or let nor underlet the whole or any part of the said premises, nor make any alterations therein, without the written consent of the said party of the first part, under the pen- alty of forfeiture and damages: and that he will not occupy or use the said premises, nor permit the same to be occupied or used for any business deemed extra-hazardous on account of fire or otherwise without the like consent under the like penalty. And the said party of the second part, further covenants that he will permit the said party of the first part, or his agent, to show the premises to persons wishing to hire or purchase, and on and after the first day of February next preceding the expiration of the term, will permit the usual notice of "to let," or "for sale " to be placed upon the walls or doors of said premises, and remain thereon without hinderance or molestation. And at the expiration of the said term, the said party of the second part, will quit and surrender the premises hereby demised, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted. And the said party of the first part, doth covenant that the said party of the second part, on paying the said yearly rent, and performing the covenants aforesaid, shall and may peaceably and quietly have, hold, and enjoy the said demised premises for the term aforesaid. And it is further under- stood and agreed, that the covenants and agreements, contained in the within lease, are binding on the parties hereto and their legal repre- sentatives. In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. [L. 8. [L. 8. Sealed and delivered in the presence of ) vin. « other covenants for lease. 1. Covenant for renewal. 3. Covenant for repairs. 3. Covenant to pay taxes and assessments. 4. Covenant for performance of the requirements of municipal Boards. 1. Covenant for renewal. " And the said party of the first part, for and in consideration of the premises, hereby promises and agrees, to and with the said party of the second part, to make and execute unto him a new lease, similar in all respects to this, and to run for the same period of years, CHAPTER OF FORMS. 363 of the premises aforesaid, upon receiving from the party of the second part a notice in writing claiming such renewal, at any time within three months prior to the expiration of the term granted by these presents." * 2. Covenant for repairs. " And the said party of the first part, for and in consideration of the premises, hereby promises and agrees, to and with the said party of the second part, to put and keep the said premises in good tenant- able order and repair, at his own cost and expense, during the whole of the term hereby demised." 3. CoTenaut to pay taxes and assessments. "And the said party of the second part hereby covenants to bear, pay, and discharge all such taxes, duties, and assessments, whatso- ever, as shall or may, during the said term hereby granted, be charged, assessed, or imposed upon the said demised premises." 4. Covenant for performance of the requirements of mnnicipal Boards. " And the said party of the second part hereby covenants to respect and fully perform all the ordinances and requirements of the Board of Health, and of all other local and municipal authorities, and to protect and save the said party of the first part harmless there- from." IX. Security for rent to he endorsed on lease. In consideration of the letting of the premises within mentioned to the within named and the sum of one dollar to me paid by the said party of the first part, I, do hereby covenant and agree, to and with the party of the first part above named, and his legal representatives, that if default shall at any time be made by the said in the payment of the the rent or performance of the covenants contained in the within lease on his part to be paid and performed, that I, will well and truly pay the said rent, or any arrears thereof, that may re- main due unto the said party of the first part, and also all damages that may arise in consequence of the non-performance of said covenants, or either of them, withotit requiring notice of any such default from the said party of the first part. Witness ray hand and seal this day of in the year 187 . Witness, ) Ti. s.] 364 LAlfDLOED AND TENANT. The surrender of a term, does not operate to dis- charge the tenant or his sureties from rent already accrued and payable, and a reletting of the demised premises, by the direction of the surety for the pay- ment of the rent, for the account and benefit of the surety, after the tenant has failed and abandoned the premises, does not operate as a surrender, so as to dis- charge the surety from further liability (McKensie ». Farrell, 4 Bosw. 192). Assignment of lease. Know all men by these presents, that I, , ' of the city of !New York, for and in consideration of the snm of lawful money of the United States, to me duly paid, by of the same place, have sold, and by these presents do grant, con- vey, assign, transfer, and set over, unto the said a certain indenture of lease, bearing date the day of in the year 187 , made by to of premises known as No. street, in the city of New York, and recorded in the office of the Register of the city and county of New York, on the day of 187 , in Liber of conveyances, p. with all and singular the premises therein mentioned and described, and the buildings thereon, together with the appurtenances. To have and to hold the same unto the said and liis assigns, from the day of 187 , for and during all the rest, residue, and remainder yet to come of and in the term of years mentioned in the said indenture of lease, subject, nevertheless, to the rents, covenants, conditions, and provisions therein also mentioned. And I do hereby covenant, grant, promise, and agree, to and with the said that the said assigned premises now are free and clear of and from all for- mer and other gifts, grants, bargains, sales, leases, judgments, execu- tions, back rents, taxes, assessments, and incumbrances whatsoever. In witness thereof, I have hereunto set my hand and seal this day of 187 . Sealed and delivered in the presence of ) [l. s.] CHAPTER OF FOEMS. 365 XI. Mortgage on lease. — Interest and insurance clause. This Indenture, made the day of in the year 187 , between John Doe of the city of New York, party of the first part, and Bichard Roe of the same place, party of the second part. Whereas, John Brown did, by a certain indenture of lease, bearing date the day of in the year 187 , demise, lease, and to farm let, unto said John Doe, and to his executors, administra- tors and assigns, all and singular, the premises hereinafter mentioned and described, together with their appurtenances: To have and to hold the same unto the said John Doe, and to his executors, adminis- trators and assigns, for and during, and until the full end and term of twenty-one years, from the first day of May, a. d. 1775, and fully to be complete and ended, yielding and paying therefor unto the said John Brown, and to his executors, administrators, or assigns, the yearly rent or sum of dollars, payable quarterly in advance, on the first days of May, August, November, and February in each and every year during the said terra, and which said lease was duly recorded in the office of the Register of the city and county of New York, on the first day of May, 1875, in Liber 1000 of conveyances, p. 100. And whereas, the said party of the first part is justly indebted to the said party of the second part, in the sum of one thousand dollars, lawful money of the United States of America, secured to be paid by his cer- tain bond of obligation bearing even date with these presents, in the penal sum of two thousand dollars, lawful money as aforesaid, condi- tioned for tlie payment of the said first-mentioned sum of one thou- sand dollars, on the day of , which will be in the year 187 ,*and the interest thereon to be computed from the date thereof, at and after the rate of seven per cent, per annum, and to be paid half-yearly, which said bond also contains an agreement, that should any default be made in the payment of the said interest or any part thereof, on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in] arrear for the space of thirty days, that then, and from thenceforth, that is to say, after the lapse of the said thirty days, the aforesaid principal sum of with all the arrearages of interest thereon, shall, at the option of the said party of the second part, or his legal represen- tatives, become and be due and payable immediately thereafter, although the time limited for the payment thereof may not then have expired; anything in the said bond contained to the contrary thereof notwithstanding, as by the said bond or obligation and the condition thereof, reference being thereunto had, may more fully appear. Now this indenture witnesseth, That the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar, to him in hand paid by the said party of the second part, at or before the enseal- ing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, assigned, transferred, 366 LANDLORD AKD fE3!fANT. and set over, and b^ these presents doth grant, bargain, sell, assign, transfer, and set over unto the said party of the second part, all that certain lot, piece, or parcel of land situate, lying, and being in the ward, of the city of New York, bounded and described as follows : (Here insert the description by metes and bounds) and which said premises are also known, and by the street, No. street, in said city. Together with all and singular the edifices, buildings, rights, members, privileges and appurtenances thereunto belonging, or in any wise appertaining. And also all the estate, right, title, interest, term of years yet to come and unexpired, property, possession, claim and demand whatsoever, as well inlaw as in equity, of the said party of the first part, of, in and to the said demised premises, and every part and parcel thereof, with the appurtenances ; and also, the said in- denture of lease, and every clause, article and condition therein expressed and contained ; to have and to hold the said indenture of lease, and other hereby granted premises, unto. the said party of the second part, his executors, administrators and assigns, to his and their only proper use, benefit and behoof, for and during all the rest, residue, and remainder of the said term of years yet to come and un- expired: subject, nevertheless, to the rents, covenants, conditions and provisions in the said indenture of lease mentioned. Provided always, and these presents are upon this express condition, that if the said party of the first part, shall well and truly pay unto the said party of the second part, the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then and from thenceforth, these presents and the estate hereby granted, shall cease, determine, and be utterly null and void, anything herein before contained to the contrary in any wise notwithstanding. And the said party of the first part doth hereby covenant, grant, promise and agree to and with the said party of the second part, that he shall well and ■T;ruly pay unto the said party of the second part, the said sum of money men- tioned in the condition of the said bond or obligation, and the interest thereon, according to the condition of the said bond or obligation. And that the said premises hereby conveyed, now are free and clear of all incumbrances whatsoever, and that he hath good right and lawful authority to convey the same in manner and form hereby con- veyed. And if default shall be made in the payment of the said sum of money above mentioned, or in the interest which shall accrue thereon, or of any part of either, that then and from thenceforth it shall be lawful for the said party of the second part, and his assigns, to sell transfer, and set over, all the rest, residue and remainder of the said term of years then yet to come, and all other the right, title, and interest of the said party of the first part, of, in and to the'same, at public auction, according to the act in such case made and provided: And as the attorney of the said party of jthe first part for that purpose by these presents duly authorized, constituted and appointed, to make, seal, execute and deliver to thfe purchaser or purchasers thereof, a good and sufiBcient assignment, transfer, or other conveyance in the law for the same premises, with the appurtenances, and out of the money arising from such sale to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the same premises, CHAPTER OF FORMS. 367 rendering the overplus of the purchase money (if any there shall be), unto the said party of the first part, or his assigns, which sale, so to be made, shall be u perpetual bar, both in law and equity, against the said party of the first part, and against all persons claiming or to claim the premises, or any part thereof, by, from, or under him, them or any of them. And it is also agreed by and between the parties to these presents, that the said party of the first part, shall and will keep the buildings erected and to be erected upon the lands above con- veyed, insured against loss and damage by fire, by insurers, and in an amount approved by the said party of the second part, and assign the policy and certificates thereof to the said party of the second part, and in default thereof, it shall be lawful for the said party of the second part to eflfect such insurance, and the premium and premiums paid for effecting the same shall be a lien on the said , mortgaged premises, added to the amount of the said bond or obligation, and secured by these presents, and payable on demand, with interest at the rate of seven per cent, per annum. In witness whereof, the party of the first part to these presents hath hereunto set his hand and seal, the day and year first above written. JOHN DOE. [l. 8.] Sealed and delivered in the presence of ) John Pbtkrsois. \ XII. Bond to accompany foregoing mortgage — interest con- dition. Know all men by these presents, that I John Doe, of the city of New York, am held and firmly bound unto Richard Roe, of the same place in the sum of two thousand dollars, lawful money of the United States of America, to be paid to the said Richard Roe, his executors, administrators or assigns: for which payment well and truly to be made, I bind myself, my heirs, executors and administrators firmly by these presents. Sealed with my seal dated the day of 187 . The condition of the obligation is such, that if the above bounden John Doe, his heirs, executors or administrators, shall well and truly pay, or cause to be paid, unto the above named Richard Roe, his ex- ecutors, administrators, or assigns, the just and full sum of one thou- sand dollars, on the day of which will be in the year 187 , and the interest thereon, to be computed from the date hereof, at and after the rate of seven per cent, per annum, and to be paid half yearly, then the above obligation to be void, other- wise to remain in full force and virtue. And it is hereby expressly agreed, that should any default be made in the payment of the said interest, or any part thereof, on any day whereon the same is made payable as above expressed, and should the same remain unpaid and in arrear for the space of thirty days, then and from thenceforth, that is to say, after the lapse of the said thirty days, the aforesaid principal sum of one thousand dollars with all ar- rearge of interest thereon, shall, at the option of the said Richard Roe 368 LANDLORD AND TENANT. or his legal representatives become and be due and payable imme- diately thereafter, although the period above limited for the payment thereof may not then have expired, any thing herein before contained to the contrary thereof in any wise notwithstanding. JOHN DOE. [L. s.] Sealed and delivered in the presence of f John Pbtbksoh. XIIL Party wall agreement. This agreement made the day of 187 , between John Doe of the city, county, and state of New York of the first part, and Eichard Roe of the same place, party of the second part, witnesseth: That whereas the said John Doe is the owner of the house and lot known as No. street in the said city of New York, and the said Richard Roe is the owner of the lot adjoining the same, on the northerly side thereof, on which last mentioned lot the said Richard Roe is about to erect a brick building; now, therefore, the said John Doe, in consideration of the sum of $ , to him in hand paid, the receipt whereof is hereby acknowledged, doth for himself, his heirs, executors, administrators, and assigns, covenant, grant, promise, and agree to and with the said Richard Roe, his heirs, executors, administrators and assigns, that he the said Richard Roe, his heirs and assigns, shall and may, in the erection of the brick build- ing about to be built, as aforesaid, freely and lawfully, but in a work- manlike manner, make use of the northerly gable end wall of the said John Doe's house, or so much thereof as the said Richard Roe, his heirs or assigns may desire, as a party wall, to be continued and used as such forever. And the said John Doe and Richard Roe do hereby mutually cov- enant and agree, for and with themselves, and their respective heirs and assigns, that if it shall hereafter become necessary to repair or rebuild the whole, or any portion of the said party wall, the expense of such repairing or rebuilding shall be borne equally by the said John Doe and Richard Roe, their respective heirs and assigns, as to so much and such portion of the said wall as the said Richard Roe, his heirs and assigns, shall or may use for the purpose aforesaid ; and that whenever the said party wall, or any portion thereof, shall be rebuilt, it shall be erected on the same spot where it now stands, and be of the same size, and the same or similiar materials, and of like quality, with the present wall. It is further mutually understood and agreed between the afore- said parties, that this agreement shall be perpetual, and at all times be construed into a covenant running with the land ; and that no part of the fee of the soil upon which the wall of- the said John Doe, above described, now stands, shall pass to, or be vested in, the said Richard Roe, his heirs and assigns, in or by these presents. In witness whereof the said parties have hereunto set their hands and seals the day and year aforesaid. In presence of ) JOHN DOE. [l. s.J f RICHARD ROE. [l. s.J CHAPTER OF FORMS. 369 Another form of party wall agreement. This agreement made the day of 187 , -between John Doe of the city, county, and state of New York, party of the first part, and Richard Roe of the same place, party of the second part, witnesseth : That whereas the said John Doe is the owner of the lot of land known as No. street, in the city of New York, and the said Richard Roe is the owner of the lot adjoining the same on the northerly side thereof; and whereas the said .lohn Doe is about to erect on his said lot a five-story brick building, fifty feet in height, and sixty feet in depth, the northerly division walls of which are to be of brick and sixteen inches thick, and the foundation wall of which is to be of stone twenty inches thick, and is to be put down fifteen feet below the curb. Now, therefore, in consideration of the mutual covenants herein contained, and for the purpose of making the said northerly wall a party wall, the said parties have mutually agreed to and with each other as follows : First. That the said wall shall be built by the said John Doe, in manner aforesaid, equally upon the land of each of the parlies hereto. Second. That the said Richard Roe will pay to the said John Doe at the time he makes use of the said party wall, one half of the ex- pense of erecting the same, with the interest added. Third. That in case there shall be any dispute as to the amount of such expense, and the parties hereto shall be unable to agree upon the amount thereof, the same shall be left to the arbitrament of John Jones, an indifEerent person hereby chosen as arbiter to determine the same ; and the award to be made by the said Jones is to be final and conclusive upon each of us, and the amount so determined is to be paid on demand. Fourth. This agreement is to apply to and bind the parties hereto, and their respective heirs, grantees, and assigns, as a covenant run- ning with the land. In witness whereof, &c. [as in last form]. XIV. Permission to insert beams in wall of the adjoining house. This agreement made this day of 187 , between Jonn Doe of the city, county, and state of New York, party of the first part, and Richard Roe of the same place, party of the second part, as follows: Whereas the said John Doe is the owner of the house and lot known as No. street, in the said oity of New York, and the said Richard Roe is the owner of the lot adjoining the same, on the northerly side thereof, on which last-mentioned lot the said Richard Roe is about to erect a brick building, and desires permission to in- 47 370 LANDIiOKD AND TENANT. sert the beams thereof into the said northerly wall of the said John Doe's building. Now therefore this agreement witnesseth : That the said John Doe, for and in consideration of the sum of dollars, to him in hand paid, the receipt whereof is hereby acknowledged, doth covenant, grant, promise, and agree, to and with the said Eichard Eoe, his heirs, executors, administrators, and as- signs, that he, the said Eichard Eoe, his heirs and assigns, shall and may, in the erection of the brick building about to be built by him, insert the beams thereof into the said northerly wall of the said jTohn Doe's house aforesaid, and that the same may there remain as long as the said wall stands. The covenants aforesaid are to run with the land, and bind the parties hereto, the heirs, grantees, and assigns. In witness whereof, &c. [as in Form XIU.] XV. Builder's contract. Articles of agreement, made this day of 187 , between John Doe, of the city of New York, party of the first part, and Eichard Eoe, of the same place, party of the second part. First. The said party of the second part doth hereby for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said party of the first part, his executors, adminis- trators or assigns, that he, the said party of the second part, his exe- cutors or administrators, shall and will, for the consideration hereinafter mentioned, on or before the day of 187 , well and sufficiently erect and finish the new building upon the lot known as No. street, in said city, agreeably to the drawings and specifications made by John Jones, architect, and signed by the said parties and hereunto annexed, within the time aforesaid, in a good, workmanlike and substantial manner, to the sat- isfaction and under the direction of the said Jones, to be testified by a writing or certificate under the hand of the said Jones, and also shall and will provide such good, proper and sufficient materials, of all kinds whatsoever, as shall be proper and sufficient for the completing and finishing all the and other works of the said building mentioned in. the specification for the sum of % And the said party of the first part, doth hereby for himself, his heirs, executors, and administrators, covenant, prom- ise and agree, to and with the said party of the second part, his excutors and administrators, that he, the said party of the first. part, his executors or administrators, shali and will, in consideration of the covenants and agreements being strictly performed and kept by the said party of the second part, as specified, well and truly pay, or to cause to be paid unto the said party of the second part, his executors, admin- istrators or assigns, the siim of $ , lawful money of the United States of America in manner following : that is to say. 1st Payment f when 2nd " $ when 3rd " % when 4th " $ when Last " $ when the said work is en- tu-ely completed, according to said drawings and specifications. OHAPTEE OF FOEMS. 3?1 Provided, that in each of the said cases, a certificate shall be ob- tained and signed by the said architect, John Jones. And it is hereby further agreed by and between the said parties : Mrst. The specifications and the drawings are intended to co-oper- ate, so that any works exhibited in the drawings, and not mentioned in the specifications, ' or vice versa, are to be executed the same as if it were mentioned in the- specifications and set forth in the drawings, to the true meaning and intention of the said drawings and specifica- tions, without any extra charge whatsoever. Second. The contractor, at his own proper cost and charges, is to provide all manner of materials and labor, scaffolding, implements, moulds, models, and cartage of every description, for the due perform mance of the several erections. Third. Should the owner, at any time during the progress of the said building, request any alteration, deviation, additions, or omis- sions, from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation. Fourth. Should the contractor at any time during the progress of said works, refuse or neglect to supply a sufliciency of materials or workmen, the owner shall have the power to provide materials and workmen, after three days' notice in writing being given, to finish the said works, and the expense shall be deducted from the amount of the contract. Fifth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by said architect, Jones, and his decision shall be final and conclusive; but should any dispute arise respecting the true value of the extra work, or of the works omitted, the same shall be valued by two com- petent persons — one employed by the owner, and the other by the the contractor — and those two shall have power to name an umpire whose decision shall be binding on all parties. Sixth. The owner shall not in any manner be answerable or ac- countable for any loss or damage that shall or may happen to the said works, or any part or parts thereof respectively, or for any of the materials or other things used and employed in finishing and comple- ting the same (loss or damage by fire excepted). Seventh. [Here insert any other conditions.] In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year above written. JOHN DOE. [L. 8.] RICHARD ROE. [l. s.] In presence of ) John Brown. \ 372 LANDLORD AND TENANT. XVI. Forms of proof and acknowledgment of instruments. * 1. By one or more persons. 3. By subscribing witness. 3. By husband and wife. 1. By one or more persons. State of New York, city and county of New York, ss. I certify that on this day of 187 , before me personally appeared known to me to be the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same. Notary Public, N. Y. Co. 2. By subscribing witness. State of New York, city and county of New York, ss. On this day of a. d. 187 , before me personally came to me known to be the subscribing witness to the foregoing instrument, who, being by me duly sworn, did depose and say, that he resided in the city of New York; that he knew the individual described in, and who executed the foregoing instrument ; that he was present, and saw [him or them] execute the same; that [he or they] acknowledged the execution thereof; whereupon he, the said affiant, became subscribing witness thereto. Notary Public N. Y. Co. 3. By husband and wife. State of New York, city and county of New York, ss. I certify that on this day of 187 , before me personally appeared and his wife, known to me to be the individuals described in, and who exe- cuted the foregoing instrument, and severally acknowledged that they executed the same ; and the said on a private examination by me made, separate and apart from her husband, acknowledged to me that she executed the same freely, without any fear or compulsion of or from her said husband . Notary Public N. Y. Co. * Of course the various forms must be made to suit the peculiar circumstances of each particular case. APPENDI'lX:. Party walls. In the case of Nash v. Kemp (reported in the New York Daily Register, October 25th, 1875), tried before Judge Van Voest, at the Special Term of the Supreme Court, and decided by him on the fourth of that month, it appeared that the plaintiff was the owner of a lot of land on the easterly side of Fifth Avenue, in the city of New York. Sarah A. Livermore, the defendant's grantor, was the owner of a lot adjoining the north- erly line of the plaintiffs lot. The plaintiff being about to erect a building upon his land, entered into an agreement, in writing, with Sarah A. Livermore, in respect to the northerly wall of the building to be erected by him, in which it was agreed that the north- erly wall of such building so to be erected, should be constructed partly upon the land of the plaintiff, and partly upon the land of Sarah A. Livermore ; that is to say, two inches of the wall should be upon the land of the plaintiff, and fourteen inches thereof upon the land of Sarah A. Livermore, and should be a party wall between the building so to be erected by the plaintiff, and any building which might be erected upon the land of Sarah A . Livermore. The wall in question was to be built by the plaintiff, at his individ- ual cost, in a substantial manner. He agreed to build it sixteen inches thick throughout its entire length and 374 landloJbI) awd tenan*. ieight. It was to be seventy feet in length along the north side of the plaintiff' s building, and to be at least four stories high. It was agreed that Sarah A. Liver- more and her assigns might, without cost or expense to her or them, use " the party wall so to be con- structed," whenever she or they should erect any building upon her land. The plaintiff proceeded at once to erect his build- ing, and completed the same, including the north wall in question. The plaintiff built the front wall of his house at the same time with the northerly wall, except carrying the latter up one story ahead, the brick work of the two walls constituting, in fact, one structure, blocked and toothed in at their junction at the northwest corner of the building. The front wall was faced with brown stone. The ashlar was anchored to the brick wall be- hind, as that went up. The brick work of the front wall, to which the ash- lar was anchored, at its junction with the northerly wall, although toothed and blocked in, was further secured thereto, by means of anchors firmly imbedded in the brickwork, of which there are two in each story, about eight feet apart. These anchors run diagonally from about the centre of the northerly or party wall to the centre of the front wall. The object of this further security being to tie and hold the two walls more firmly together. The front wall of the plaintiff's house, ex- clusive of the ashlar, is about fifteen inches in thick- ness. The northerly or party wall was constructed of the agreed thickness up to a point ten inches from the line of the avenue, where, as to the north half of the wall, the same terminated. The south half, however, was continued, and interlaced with the front wall, as already observed, until within about four inches of the street line, leaving a space of four inches between it and the front line for the ashlar. By this method of construction, there was a jog in APPEBDIX. 376 the northwest corner of the wall, ten inches in depth and eight inches in width, formed by the intersection of the face of the north half and the north line of the wall, as carried by the plaintiff towards the street line of the lots, in front. This jog was left by the plaintiff, extending from the foundation to the top of the wail, to be occupied by the owner of the adjoining lots in connecting his front with and supporting the same thereon. After the completion of the plaintiff's build- ing, the defendant acquired title to the land of Sarah A. Livermore, and erected thereon a building known as the "Buckingham Hotel." When the defendant came to connect his front wall with the party wall, he complained to the plaintiff that he had occupied with his front wall, including the ashlar, more space of the party wall than he was j ustly entitled to. The claim of the defendant being that, as to his front wall, the plaintiff was entitled to occupy or over- lap the party wall to the extent of two inches only, and up to the northerly line of his lot, whereas he had covered the same with his front wall to its centre, and had in this manner appropriated to himself a frontage of six inches of the defendant's land lying in front of the party wall and up to the line of the avenue. The defendant commenced to cut away six inches of the plaintiff's ashlar, lying immediately south of the centre line of the party wall, when he was restrained by an injunction order obtained in this action, and the plaintiff, by his complaint and upon the trial, asks that it be adjudged that he, the plaintiff, is entitled to use the front of the said party wall up to the centre line thereof, and that the defendant be enjoined from in- terfering with the plaintiff in such use. The plaintiff claims in his complaint to have built the party wall as agreed, and to have used eight inches of its front, and up to the centre line thereof with the front of his building. He would appear to concede that the party wall proper, which he agreed to build, 376 LANDLORD AND TENANT. was not itself to extend in front to the street line of the lots. The court, after remarking that the precise c[uestion as to how much of the face of the wall in question, regarded as a party wall, the plaintiff might use to connect therewith his front, had not been decided by any case to which reference had been made by the counsel for the parties herein, finally decided that the plaintiff was not entitled to the relief demanded, that he was only entitled to use so much of the face of the wall as was erected upon his own land (which in the present case was two inches), and the injunction restraining the adjoining owner from cutting away that portion of the face of the plaintiff's wall which (in excess of the two inches) overlapped the defendant's premises, was removed by the dismissal of the plaintiff's complaint. AffldaTit for appeal to county court. In addition to the explanation given on p. 328, in reference to the affidavit upon appeal to the county court it was deemed advisable to give the form of the affidavit required for such appeal, prior to the method provided by the Code, § 351. State of New York, county, ss. Eichard Roe, being duly sworn, deposes and says : That on the day of 187 , John Doe of in said county, made and presented to justice of the peace in and for said county, his affidavit, of which the, following is a copy, to wit : (Insert here the affidavit.) Whereupon the said justice issued his summons, dated on the day of 187 , requiring this de- ponent forthwith to remove from the premises, in the said affidavit of the said John Doe mentioned, or to show cause before the said jus- tice, at his office in on the day of 187 , at o'clock in the noon, why pos- session should not be delivered to the landlord (If the summons is in- formal, insert a copy of it) ; on which said day, to wit, the day of 187 , the said John Doe and the said Richard Roe, appeared before the said justice, whereupon the follow- ing proceedings were had (Here state the proceedings, with the evi- dence of the witnessess, if any were sworn). Deponent further says, that upon such hearing the justice gave judgment for the said John Doe, that the said premises in his said APPENDIX. 377 affidavit mentioned, should be delivered to him as the landlord (oi-, against the said John Doe, and that the said premises in his said affidavit mentioned, should not be delivered to him as the landlord). And deponent assigns the following grounds of error, upon which he appeals to the county court of the said connty of , to wit: (State the grounds of error distinctly and concisely.) RICHARD ROE. Sworn to before me, &c. ) I hereby allow the within appeal, this day of 187 . Justice of Supreme Court, (or) County Judge. 48 GENERAL INDEX. For Index to Chapters, see Table of Contents, at page 5. For Index to Forms, see that title, page 10. Abatement — by tenant's death, 298. Acknoirlcdgments — Forms of, 373. Act — in reference to untenantable premises, 129. " " Construction of, 129. " Forcible Entries, 174. " Summary Proceedings, 183. " Bawdy Houses, 303. " Illegal Trades, 307. " Squatters, 346. Action for rent — See titles "Rent," "Use and Occupation," and "Remedies." Adjoining — building, damages from, 73, 134. See "Party Walls." Rights under covenant as to character of, 163. Inserting beams in, 147, 369. Excavations, damages from, 134. Owners, other acts of, 143. Adjournments — When and for what time, 191, 372. Affidavit to adjourn, form of, 272. Adjudication — by magistrate, its effect, 385, 386, 388. by Jury, 283. Certified copy as evidence, 289. Administnilors — When to commence proceedings, 75, 76. Remedies of, 75, 76, 77, 96, 214, 315, 248. Preference in payment of rent, 63. Liability of, if possession taken, 85. Admissions — See title Counter Affidavit. Attidarit — in proceedings of forcible entry, 175, 200, 301. of service in same proceedings, 203. of facts in summary proceedings, 186. in summary proceedings, who to make, 186. " " its requisites, 337 to 349. Sufficiency of, tenancy at sufferance, 343. Whom to be sworn before, 345. Forms of in summary proceedings, 345 to 350. Form of by landlord for non-payment of rent, 345. " agent " " 246. " landlord, expiration of term, 247. " " tenancy at will, 347. " on sale under execution, 248. 380 INDEX. Affidavit — Form of on mortgage foreclosure, 249. of service of summons, forms of, 359 to 261. to adjourn trial, form of, 273. of claim, proceeaings on execution sale, 393. under bawdy house act, by landlord, 309. " " " neighbor, 311. " illegal trades act, 313. on appeal to county court, 376. Affirm — .Election to,, in case of fraud, 415. Ag:eiit — Power of agent to execute lease, 29. Effect of lease signed by agent without disclosing the owner's name, 30. Power to accept surrender, 119. of landlord, may remove certain tenants, 186. Agreements — for occupation of land in city of New York, 8. effect of tenant entering and refusing to accept lease, 14, 61, 813. for lease, and lease distinguished, 30. annulled by warrant, 192, 295. for party wall, forms of, 368, 369. for inserting beams in adjoining house, forms of, 369. Aldermen — have jurisdiction on "forcible entries," 199. Amendments — in summary proceedings, 370. Amended Return — How procured, 337. Amount of Costs — Appeal to County Court, 345. Answer — See title " Counter Affidavit." Appeals — See titles " County Court," and "Certiorari." to Court of Appeals, in summary proceedings, 193, 194. from Justices of Peace to County Court, 195, 334. security thereupon, 195, 330. from Justices of Peace, 834 to 345. notice of, form, 328. by one not a party, 345. Appearance — want of, admits facts alleged by landlord, 263. Appendix, 373. ' Application — of payments, 54, 55. Appropriation — of payments, 54, 55. Appurtenances — defined, 31. Argument— upon appeal, 339, 340. Notice of, 339, 340. Assignment — of lease, form, of, 364. Assigrnation Houses — Of proceedings against, 303 to 313. Assigning — lease, in violation of covenant, 71, 73. " 83, 84. Assignees— of landlord, remedies of, 76 to 78, 96, 214, 315, 243 Who are, 84. Liability of. 84, 85. Discharged by further assigment, 85. of lessor, may remove certain tenants, 186. General, lor "Benefit of Creditors ' when liable, 85. Liability as, of party buying at foreclosure sale of leasehold interest, 222. Assignor — remains liable after assignment, 84. Attachment — against witness, form of 359. Order for, 358. Auxiliary remedies, 232. Avoiding— lease for fraud, 34, 36, 37. Award — of restitution after inquisition, form of, 205. " " Verdict, form of, 310. See title "Restitution." Bawdy House Act, 303 to 313. houses, a nuisance, 307. houses, criminal liability, 307. Beams — ^inserted in adjoining house " Form of agreement," 369. Bills — ^Payment of rent in, 47 to 62. Board and lodging' — Illegal contracts for, 37, 38, 39. " Agreement for does not create relation of landlord and tenant, 313. Boarders — Eights of, 30. Bond — on removal of forcible entry proceedings, 180, 316. how returned thereon, 181. to stay warrant, form of, 389. Insolvent tenant, 290. Tenant on execution sale, 391. Certiorari, "Forcible Entry Proceedings," 316. Ordinary form, 367. Bowling alley — Premises let for, 40. Breach of covenant — When no defense to summary preceedings, 338. Brooklyn — City Judges have jurisdiction of summary proceedings, 319. Brothel — Houses occupied as, 36 to 40, 303 to 313. Buffalo — Justices of Superior Court have jurisdiction. In summary proceedings, 319. Bnilder's contract— " Form of," 370. Buildings — Tenant's right to remove, 87, 88. See "Adjoining buildings." Caveat emptor — Maxim of, applies to lettings, 34. Certified copy — Adjudication as evidence, 398. Certiorari — to remove proceedings on forcible entry, 180, 314. Bond to be given thereupon, 180, 316. proceedings in Supreme Court, 181. to review summary proceedings, 193, 317. not to stay proceedings, 193. to review proceedings on forcible entry and detainer, with forms, 314 to 317. Petition for, form of, 317. to remove proceedings, form of, 316. Bond on allowance of, form, 316. Beturn of justice to, 317. to review summary proceedings, 317. Writ of, how obtained, and how returnable, 317 to 319. Rule in England as to removal of convictions upon certiorari, 830. Petition for to review summary proceedings, form of, 330. i382 TKDEX. Certiorari — Order directing, form of, 331. Return of justices upon, 333, 335, 336. Reversal of judgment upon, form of order, 3a3. Restitution upon form of writ, 333. by one, not a party, 345. See " Appeals to County Court.'' Challenges — to jury, 378. Character — of previous occupant, effect on lease, 34. See "Bawdy Houses " and "Validity of Lease." Charge— of judge, 380 to 383. Chattels — Real, 5. Check — Payment of rent, in, 47 to 53. City — Judge of New York, has certain jurisdiction, 199, 319. Judges of Brooklyn, have certain jurisdiction, 199, 319. of New York, agreements for lettings, 8. Common law — Demand for rent, 335. Common Pleas — Jurisdiction on forcible entries, 199. See "County Courts," Complaint — for forcible entry, 175, 300. Form of, 300. to be in writing, affidavit therewith, 175, 301. Form of, 301. to be filed, 301. against squatter, 348. • tenant for rent, " form of," 359. surety for rent, "form of," 360. Concealing — oliaracter of former occupant, 84, 35. other facts, 43, 48. Conclusive — Return of justice, 337. Condition — of premises, when to be disclosed, 34, 35. Conditions — enforcing compliance of by action, 64. Constable — to summon jury, in summary proceedings, 189, 371. Constable's — return to venire, in summary prooceediugs, 371. to execute process on forcible entry, 179. return to precept on proceedings on forcible entries, 303. in city of New York are marshals, 396. Construction — Rules applicable to summary proceedings, 316. Contents — See " table of," in front of book. Contract-Builder's, form of, 370. Conyentional — relation of landlord and' tenant, when it exists, 59 to 63, 311, 313. Cornish — of adjoining house overhanging, 73, 73. Corporations — Leases by, and to, 103, 103. Costs — on reversal of summary proceedings, 194, 319. . Forcible entry proceedings, 815. Appeal to County Court, 348 to 345. Setting ofl in County Court, 843. How awarded, 843. of summary proceedings in city of New York, how col- lected, 296. INDEX. 383 Cultiyation — tenants under agreement for, 185, 313. Counter aliidavit — in summary proceedings, 189, 366 to 369. Counter claim — for want of repairs, 104, 105. County Courts — Appeals to, from justices of peace, 193, 334 to 345. Review of adjudication before justices, 335, 336. Notice of appeg,! to state grounds, 337. Form of notice of appeal, 338. " appeal, 338. Service of notice of appeal, 338, 330. Security upon appeal, form of, 330, 331. Errors and omissions in, 333. Execution, how stayed pending appeal, 333. Efiect of appeal and extent of stay, 833. Death of justice and filing undertaking, 333. filing notice of appeal instead of service, 333. Return when and how made and compelled, 333. " what to contain, 334. Impeaching return, 335. False return. 335. Form of justice's return, 335, 336. Return how made, if justice out of ofBce, 337, 338. Further return may be ordered, 337. Return conclusive, 337. How to procure amended return, 337. Form of order to show cause, 337. In case justice be dead, insane, or absent, 338. hearing upon return, 339, 340. dismissing appeal if not brought on, 339. Only one notice necessary, 339. , To be heard on original papers, ;339. Objections and exceptions, 340. rehearing, 341. Respondent must appear, 341. Judgment, how given, 341. Judgment roll, 343. Costs, how awarded, 342. ordering restitution, 343. setting off costs, 343. Costs on appeal, 343 to 345. By one not a party, 345. rehearing upon appeal, 341. Respondent must appear at argument, 341. Affidavit upon appeal to, 876. County Judges — Jurisdiction, forcible entries, 175, 180. " " in summary proceedings, 184, 319. Court of Appeals — Review by, in summary proceedings, 193, 194. " forcible entries, 815. Covenants — express and implied, 37. to renew, see "Renewals " and "Foi'ms of." Enforcing by action, 64. " Forfeitures for breach, 69. to repair, 106 to 108. " includes what, 108. " effect of, 108. 384 INDEX. CoTenants — Artion for breach, 109, 110. running with the land, 111. as to character of adjoining buildings, 163. in leases, 361 to 363. Creation — and division of estates, 5. Criminal Courts — may award restitution for forcibles entries, 181. Damages — to property by malicious injury, 57, 68. " " from adjoining buildings, 73 to 74, 134 to 143. for withholding possession of property from tenants, 83. to evicted tenant, 83. UBon reversal of summary proceedings, 194, 319, 350, 355. Summary proceedings in cases in which magistrate has no jur- isdiction, 350. Death— of landlord, rent to go to whom, 75, 76, 96, 314, 315, 343. " , who to commence proceedings, 76, 314, 315, 343. " tenant, effect of, 398. Decision — of magistrate, 384. " " its effect, 384, 388. " " when to be rendered, 387. Default — of tenant on return day admits facts, 363. Defense — filing counter affidavit. 189, 366 to 369. breach of covenant, 238. See eviction, surrender, untenantable premises. Validity of leases. Definition — of year, half year and quarter of year, 9. of month, 10. of leases, 19. of certain terms, 30. of rent, 31, 331. of covenants running with the land, 111. of surrender, 115. of easement, 161. of real estate, 33. Deliberations — of jury, 383. Demand— for rent, 185, 333 to 338. " when and how made, 333 to 228. " on joint tenants, 328. for jury trial when to be made, 370. Denial — See title, "Counter Affidavit." Demise — The act of granting, an estate is called a demise, 19. Description — of premises, what sufficient, 343 to 345. Deserted Premises — Statute in reference to, 183. When justice to view, 183. When landlord to be put in possession, 183. Appeal by tenant when and how made, 183. Power of county court restitution, 184. Detainer — forcible, see title forcible entry and detainer. Determination — of particular estate by notice to quit, 13. of certain leases, 28. Disclosing' facts — See title, concealment and svppressio veri. Dismissing appeal — if not brought on, 339. INDEX. 385 Disorderly house- Proceedings against 303 to 313. Dispossession — Remedy after, 395. Dispossessing proceedings — The statute relative to, 183 to 196. Law and practice upon, 311 to 398. Injunction enjoining, 399 to 303. against bawdy houses, 303 to 313. against illegal trades, 307 to 313. District Conrt — Justices jurisdiction, forcible entries, 180, 199. " " " Summary proceedings, 184, 185, 319. Division — of estates, 5. Docliet — of justice of peace, 195, 834. Double Kent, 17. Easements Certain, 161. .. " Definition of, 161. " See title, "Party Walls." Eaves — of adjoining-buildings overhanging, 73, 73. Effect— of tenant's death, 398. Eiection — to affirm in case of fraud, 45. between inconsistent remedies, 79. Purposes rooms hired for, 40. Eminent — Domain, effect of exercising right of, 137. Endorsement — upon summons in summary proceedings, 188. " form of, 357, 358. Enjoining — summary proceedings, 399 to 303. Entries — upon land to be peaceable, 174, 197, 198. Estates — creation and division of, 5. Of inhei'itance, 5. for life, 5. for years, 5, 8. at will, 5, 10, 15, 335. by sufferance, 5, 10, 15, 335. of freehold, 5. Determination of, see Holding over, 7. at will and by sufferance terminated by notice to quit, 13. Estoppel — Tenant estopped from disputing landlord's title, 97. " Extent of rule, 97. Eviction — and what amounts to, 131 to 138. Effect of erections on adjoining lot, 137, 141. Effect of, 137, 128. " ' acts of adjoining owners no eviction, 137, 141. Eminent domain, 137. Damtiges for, 83. Evidence — upon trial, 379. Certified copy adjudication, 398. Excavations— 133 to 144. Right to make, 133. as affecting adjoining owners, 134. Effect of adjoining upon tenants, 134. "? , Other acts of adjoining owners, 143. adjoining highway, 143. 49 386 INDEX. Exceptions — and objections, 340. Execution — sale on judgment tenant holding over after, 185, 236. proceedings founded upon bond therein, form of, 391. Sale, affidavit in such case, 392. liow stayed upon appeal to county court, 333. form of other affidavits in proceedings on sale, 348. Executors — Preferance by in payment of debts, 63. Remedies of, 75, 76, 96, 314, 215, 243. When to commence proceedings. 75, 76, 96, 314, 215, 243. E.xpinitioii — of term, see title Holding-over. of certain leases, 28, 333. Express covenants, 27. Extension of lease — s'ee title. Renewal. False — Representation, see title Fraud. Return of justice, 335. Farms — Cultivation agreement for, 186, 213. Fee — Simple absolute, 5. Feudal — Tenures in this country, 1 to 4. Tenures iu England, 1 to 4. T'Mxtures — Right of tenant to remove, 86, 87, 88. Forcible entry and detainer — Statute relating to, 174. " " Index to said statute, 174. " " The law and practiice upon, with all the forms used therein, 197 to 210. " " Proceedings how instituted, 199. " " Review by certiorari, 314 to 317. " '' Officers having jurisdiction, 180, 198. Foreelosnre— of mortgage, tenant holding over after, 185. " " upon lease, effect of, 323. Foi'feiture — for breach of condition, enforcing, 69. Former adjudication— Effect of, 383, 384, 288. Forms — See index to, in front of book. under forcible eatry proceedings, see pp. 197 to 810. under summary proceedings, see pp. 211 to 303. under bawdy house proceedings, see pp. 309 to 813. under illegal trade proceedings, see pp. 309 to 313. Fraud — Effect of, upon lease, 34 to 44. in misrepresenting rental, 41. " " value, 41. Remedy in case of, 44. Election to affirm, 45. Effect of taking possession, 45. See title Rescission. Rescission for, 91. Freehold estate, 5. Furnished house — Implied warranty in letting, 123. Further return— of justice, how pro(!ured, 337. Gutter — of adjoining building, damages from, 72, 73. Grantees— Remedies of, 76 to 78, 214, 215, 243. Hearing— Notice of, 339, 340, INDEX. 387 Hearing —Notice of only one notice necessary, 339, 340. " " of on original papers, 339. " " of objections and exceptions, 340. " " of judgment how given, 341. " See title, " Trial." Hereditaments — defined, 31. Heirs-iit-law— right of, to rent, 75, 76, 96, 314, 215, 343. when to commence proceedings, 76, 314, 315, 343. Highway — work upon, and assessment therefor, 100. Excavations iipon, see Excavations. Holdiiig-OTCr — ^liability for, after determination of certain estate, 7. Effect of, 8, 25, 230, 331, 332. after notice to quit, eflect of, 17. tenants to be removed, 184. after expiration of term, 185. after sale on excution of mortgage, 185. after taking insolvent act, 185. after term on agreement to cultivate, 185. the cases contemplated by statute, 331. must be without landlord's permission, 333, wbo to commence proceeding for in certain cases, 333, 334. increased rent after notice, 335. remedy of landlord for rent against over-holding tenants, 39f . House— and messuage are synonymous terms, 31. " ' " What is included in the term, 31. Tenant's rights to remove house erected by him, 87. Illegal— purposes, houses hired for, effect of, 36, 37, 38, 39, 40, 307. " knowledge required, 88, 39, 40. leases, see titles signifying illegal purposes. Trades, proceedings against, 307 to 313. Ill-fame — Houses of, proceedings against, 303 to 818. Immoral— purposes, hiring for, effect of, 36, 37, 38, 39, 308. Impeaching — Justice's return, 335. Luplied — covenants, 37. warranty in lettings, 84, 85, 133. Incoming Tenant, 338. Inconsistent — Remedies, election between, 79. Increasing— rent by notice, 335. Infants — leases to, 100. removal of by summary proceedings, 100. Infancy — no defense to summary proceedings, 315. Inheritance — Estate, of, 5. Injunction — to enjoin summary proceedings, 399 to 303. Injury — maliciously done to property, 57, 58. Inquisition — Jury to examine and return, 176. Form of, 304. Traverse of, 176. Traverse, form of, 306. when to stay proceedings, 176.- when and on what terms landlord may traverse, 176, 3§8 IlfDE^. Insolrenl Act — Tenant taking may be removed, 185. Bond to stay proceedings, form of, 390. Interest — on rent, landlord entitled to, 333. Intruders — are not Tenants, 314. Joinder — of parties as landlord in summary proceedings, 333, 333, 334. Joint — Tenants, Remedies of, 96. Tenants, Demand upon, 338. Judge's— Charge, 380 to 383. Judgment — for defendants if not guilty on forcible entry, 178. sale under execution upon tenant holding over, 185. How given, 384, 385. Form of, 385. Validity of, 386. Within what time, 387. Effect of, 388. before justice of the peace, 195. " " " " form of, 385, 334. " " " " docket of, 334. Form of, under Bawdy House Act, 313. " " Illegal Trades Act, 313. How given upon appeal, 341. Roll, " " " 343. Effect upon other remedies, 79. Jurisdiction — ^in forcible entry proceedings, 180, 198. in summary proceedings, 184, 319. of district court justices, 185. Rule in reference to, 850 to 356. Juror's — summons, Form of, 373. Drawing of, 377. Talesmen, 375. Form of oath to, in summary proceedings, 378. " " "on forcible entry, 303, 309. In forcible entry proceedings, fine, &c., 179. Jury — ^Precept for, on forcible entries, 175, 303. Form of, 301. Number composing, 303. to be sworn to examine and return inquisition, 176. Form of oath, 303. to be summoned to try traverse, 177, 307. Form of precept, 308. to be sworn, proceedings before them, 177. " form of osfth, 309. ■when to be discharged, and whenever one to be summoned, 177. trial in summary proceedings, 189, 370, 371, 375. " waived if not demanded, 370. how summoned, 189, 370, 371. drawn and sworn, 190, 375, 376, 377; Talesmen, when and how summoned, 190, 375. how kept, 190, 383. Officer in charge to be sworn, 190, 365, 366, 383. form of. oath, 383. . Jury — When disoliarged and new one formed, 190. Venire, form of, 371. Officers' return of service, 371. Deliberations of, 383. Polling, 383. Justice ot the peace — Judgments before, 195, 385, 334. Appeal from to county court, see title, " County Court." Justices — Liability in certain cases, 850 to 356. return on forcible entry proceedings, 317, 335. " on summary " " 333, 334 to 836. charge to jury, 380 to 383. Keeper of poor-houses — may be removed, 186. King — The source of title in England, 4. Land —defined, 30. entries upon to be peaceable, 174, 197, 198. sold on execution proceedings upon sale, 336. Lands — Title to, in certain cases in the people of the state, 1. " " " United States, 4. Landlord — Eights of after service of notice to quit, 17. duty as to informing tenant of character of previous occupants, 34, 35. Remedies of the, 56 to 80. Remedy of use and occupation, 59 to 63. enforcing covenants and conditions by action, 64. Liability for withholding possession, 81, 83. and tenant, certain rights and disabilities, 97. Tenant can not dispute landlord's title, 97. " " " " extent of rule, 97. Liaiblity to third persons, 165 to 173. may remove certain tenants, 184, 186, 311. and tenant, when relation exists, 59 to 63, 311 to 314. " liabilities incidental to remedies, 350 to 356. Law and practice — On forcible entries, 174 to 181. " " summary proceedings, 311 to 398. " " enjoining " 399 to 303. " " Bawdy houses, 303. " " Illegal trades, 807. " " Squatters, 346. Lease — Expiration of, see .title. Holding-over. defined, 31, 19. void, possession under, effect of as to term, 9, 14, 30. Definition, nature and validity of, 19. Parties to, 19. Words necessary to constitute, 19. by correspondence, 30. and agreement for distinction, 30. How far receipts operate as a lease, 31. certain to be in writing, 35. different covenants, 363. Effect of refusal to accept after entry, 14, 61. Leases — ^for years are no longer deemed terms, but estates, 36. how subscribed, 36. Validity of future terms, 36. 390 INDEX. Leases — Validity of covenants, 37. Eenewal of, 37. " Option of renewal, 38. When certain lease expire, 28, 39, 333. Power of agent to execute, 39. Execution of by agent, owner's name not disclosed, 30. Recording of, 33. Validity of, as affected by fraud, 34. Rescinding for fraud, 34, 36, 37 to 46. See titles "Fraud," "Recission." Restrictions in, effect of. 64 to 73. Assigning, 83, 84, 85, 86. annulled by warrant in summarv proceedings, 193. 284 to 388. Other rights not affected, 194, 288. Effect of foreclosure of mortgage upon, 332. Certain, void, 34 to 46, 303, 307. with covenants, form of, 361, 363, 363. Covenants in, 363, 363. Assignment of form of, 364. Mortgage on, form of, 365. Leasehold Estate — Sale of, 86. " " " conditions of, 86. Legal — representatives may remove certain tenants, 75, 76, 96, 186, 314, 315, 343. meaning of certain terms, 30, 31. Lessees^uader Brooklyn tax sales may institute summary proceed- iDgs, 186. Lessor — may remove certain tenants, 184, 186, 311. Letting — See title, "Leases." Liability — for holding over after determination of certain estates, 7. of "Landlord," "Tenant," and of "Justice," see those titles. of landlord withholding possession, 81, 83. See titles Assignee, Assignor, Landlord, Tenant. to third persons, 165 to 173. of third persons to landlord, 173. incidental to remedies, 350 to 356. Life— Estates for, 5, 6. Tenancy for, 5, 6, 7. Incidents of estate for life, 6, 7. Estates for incidents of, 6, 7. Remedy on leases for, 7. rents dependent upon life of another, 63. Lodgers —Rights of, 30. Lodging — ^Illegal contract for, 34 to 41. Magistrates— having jurisdiction of forcible entries, 180, 198. " " " '' summary proceedings, 184, 219. Malicious — injury to property, remedies for, 57, 58. Marine^Court justices have no jurisdiction of forcible entry pro- ceedings, 180, 199. Court justices have jurisdiction of summary proceedings, 184, 319. Marshals — to execute process on forcible entries, 179, 296. INDEX- 391 Marshals — in the city of Wew York are constables, 396. return to precept on forcible entry, 303. to suQimon jury in summary proceedings, 189j 370, 371. return to venire in summary proceedings, 371. Master — and servant, relation of, 314. Maxims— 37, 34. Mayors — of cities liave jurisdiction on forcible entries, 180, 199. of cities have jurisdiction in summary proceedings, 184, 319. Messnaare — and House are synonymous terms, 31. and House, what is included in term, 31. Misrepresentation — See "Fraud." Mistake — ^Recision for, 91. Month — Definition of, 10. Monthly— Tenancies, 9, 14, 31, 33 to 35 More — or less defined, 31. Mortgage— on lease, form of, 365. on lease, eflfect of foreclosure, 333. Nature of leases, 19. New York City — Agreements for occupation of lands in, 8, 9, 14, 31 to 35, 30. " " Officers having jurisdiction, see titles, "Forcible Entry," " Summary Proceedings. " Note — payment of rent in, 47 to 53. Notice to quit — in what cases necessary, 13 to 18, 31 to 35, 333, 385. " form of, 16. service of, 16. " rights of landlord after notice, 17. " by tenant, eflfect of not yielding possession, 17. Eflfect of possession as, 33. to defendant in forcible entry proceeding, 175. " form of, 303. of appeal to county court, form of, 338. termination of certain estates by, 333, 338. " " " " see Tenancies at will and by suflEerance. Hearing, 339, 340. " only one notice necessary, 339, 340. to quit to squatters, 847. Nuisances — upon adjoining property, 34, 35, 73, 73, 74, 137, 134. Eight to abate, 34 to 46, 73, 74. Effect of, upon hiring, 34 to 46. Oath — to jurors in summary proceedings, form of, 378. to officer having charge of, form of, 383. to witnesses in summary proceedings form of, 374. to jurors in forcible entry proceedings, 176, 177, 303, 309. form of in suchi proceedings, 303, 308. to witnesses in forcible entry proceedings 304, 309. form of, 303, 309. Objections — ^to be made or be deemed waived, 363 to 366. and exceptions, 340. Occnpatiou — Covenants as to mode of, effect of, 66 to 73. 392 IKDEX. Occupation — Effect of as notice, 33 . " See Use and occupation. Occnpants — character of, former effect on lease, 34 to 36. Officers — having jurisdiction, see "Forcible Entry," Summary pro- ceedings. Openings — on sidewalk, liability for, 173. Option — on renewal, 28. ' rder— directing certiorari to issue, form of, 331. of reversal of summary proceedings, form of, 333. to show cause for amended return, 337. Parties — Joinder of as landlords in summary proceedings, 333, 333, 334. Partners — leases to, 101. Payment of rent — Time of, 47. Mode of, 47. in check, note, or bill, 47 to 52. Tender of, when and how made, 53, 53. after commencement of proceedings, 338, 288. Payments — application of, 54, 55. Party-walls, 145 to 160, 373. When ageementruns with land, 114, 145 to 164, 373 to 376. exist by grant or prescription, 145. when by verbal agreement, 143. when certain walls become, 148 to 151. not an incumbrance, 151. Provisions of building law as to, 151 to 154. increasing thickness, 154. diminishing thickuess, 155. increasing heighth and depth, 155. repairing, 156. taking down, 157. rebuilding, 159. Agi'eement as to three forms, 368, 369. Right to use face of, 373 to 376. Peace — Justices of. Proceedings before, 195. " Judgment and docket, 195, 385, 386, 334. " Appeals to County Court. See title "County Court." " Jurisdiction of summary proceedings, 184, 219. Penalty — on tenant not yielding possession, 17. " holding over after notice, 17. Peremptory — right of challenge not allowed in summary proceedings, 378. Permission— holding over must be without, 333. Petition — ^for certiorari on forcible entry, form, 315. " " on summary proceedings, forms, 330. Pier — or wharf, when within the act, 313. Polling— the jury, 388. i Poor House — keeper may be removed, 186, 212. Possession — under void lease, effect of, 9, 14, 30, 84 to 46. under lease void for fraud, 45. INDEX. 393 Possession — when remaining in amounts to election to renew, 37. Effect of as notice, 33. right of, and damages for withholding, 81, 83. of sub-tenant, possession of tenant, 86. Certain provision affecting tenant's, 99. ' of tenant when deemed possession by landlord, 99. any person in possession may file counter affidavit, 189, 366 to 369. Practice — upon forcible entry proceedings, 174 to 181. upon summary proceedings, 311 to 398. upon return day, 363. Precept — for jury on forcible entry proceedings, 175. " " " form, 301. " notice of, 173. " " proof of service of notice, form, 303. " " officer's return to, form of, 303. or writ of restitution, form, 306. for jury to try inquisition, form, 308. Preface — see front of book. Premises — sufficiency of description, 243 to 365. Process — Keturn of, 363. Proof — of service on tenant, what to contain, 188. " " " • forms of, 359 to 361. Prostitution — Rooms hired for, 36, 38, 39. Houses, proceedings against, 303 to 313. Protection — of warrant, 395. Quit — Notice to, in what cases necessary, 13, 335. " " see title "Notice to Quit." Bace-course — ^Premises let for, effect of, 41. Beal — chattels, 5. estate defined, 32. Receipt — operates as a lease, when, 21 to 25. How far open to explanation, 21. Tenant" not entitled to, 53, 339. Eesclnding- — ^lease for fraud, 34 to 37, 44, 45, 46. Kescission — for fraud or mistake, 91. Recording — leases, 32. Recorders — of cities have jurisdiction in forcible entry proceedings, 180, 199. " " " " summary proceedings, 184, 319. Redemption — Right of, after warrant, 196, 397. Refiisal — -lllffect of giving tenant's refusal on renewal, 27. Option of tenant, 28. Relation — of landlord and tenant, when and between whom it exists, 59 to 63, 211 to 214. Remedies — on leases for life, 7. in cases of fraud, 44. of the landlord, 56 to 80. Executors and administrators, 75. 50 394 INDEX. Bemedie^ — Grantees and assignees, 76 to 78. Effect of judgment upon other, 79. Election between inconsistent, 79. of the tenant, 81 to 90. of the tenant for wrongful entry, 94. of assignees and representatives, 96. of legal representatives, 96, 314, 315, 343. Joint tenants, 96. see titles "Forcible Entries," " Summary Proceedings. " of landlord for rent after issuing warrant, 395. Auxiliary, 333. Liabilities incidental to, 350. Kemoval — of squatters — see title Squatters. Renewal — of leases, 37, 38. What amount's to, 37, 38. Covenant for, how construed, 38. whether new lease necessary, 38. Rent — when payable on void lease, 9, 14, 30. when payable nn void lease, 14, 30. defined, 31, 331. Time of payment, 47. Mode of payment, 47. Payment by check, note or bill, 47, 48. depending "upon life of another, 63. Preference in payment of by executor, 68. To whom it belongs in case of landlord's death, 75, 76. not suspended by adjoining excavations, 137, 141. Payment by sub-tenant, 89. • Tenants failing to pay may be removed, 184. Demand for, 185. 333 to 338. In kind, how collected, 331, 333. Interest upon, landlord entitled to, 333. Payment of, after commencement of proceedings, 338, 388. increased by notice, 335. Security for, form of, 363. Complaint against tenant for rent, form of, 359. Complaint against surety for rent, from of, 360. See title, " Use and Occupation." after dispossession, 395. Rental — ^Misrepresenting effect on lease, 41. Repair — Obligation to, 104. Obligation to, under covenant, 106 to 108. Action for breach of covenant to, 109. Extent of landlord's liability, 109, 110. Effect of covenant, 108. Representatires — Legal, may remove certain tenants, 186. Legal remedies of, 75, 76, 96, 314, 315, 343. Legal who are, 343. Res adjudicata— 383, 384, 388. Restitution — and collection of costs, forcible entry proceedings, 178. to issue if there be no traverse, 179. Form of award, 305. to be awarded in certain cases, 181, 305. IWDEX. 395 Restitution — Criminal courts may award, 181. ! Precept or writ, form of, 206. after verdict, form of award, 210. " " " writ, 210. by Supreme Court in summary proceedings, 194, 319. in summary proceedings, writ of, 838. Restraint — of trade, 64 to 72. Restrictions — in lease, effect of, 64 to 72. Returnable — when summary proceedings to be made, 186, 353. where summary proceedings to be made, 185, 384 to 288. Return day — Practice upon, 262. of Justice to certiorari, forcible entry, 817. "' " " summary proceedings, 822, 333 to 336. " of justice, how compelled, 833. " what to contain, 334. " impeaching, 335. false, 835. form of, 335, 336. " how made if justice out of office, 337, 338. " further return may be ordered, 387. " concluaive, 337. " How to procure amended return, 387. " form of order to show cause, 387. " in case justice be dead, insane, or absent, 388. '• in case justice in another county, 338. " Hearing upon return, 339, 840. Kerersal — of summary proceedings, order on, 333. " " " damages on, 355, 356. Reversioner — ^Rights of 58. Review — See "Appeal," "Certiorari." Riglits — of landlord after service of notice to quit, 17. of lodgers, 30. of tenants. See "Rights of Lodgers," 30. of the tenant, 81 to 90. " under-tenant, 88. of way, 161. annulled by warrant, 192, 194, 295. of redemption, 196, 297. Rules — of construction, 316. Sale execution — Bond in proceedings, form of, 391. Affidavit of claim in same case, form of, 392. or foreclosure — tenant holding-over after, 185, 386. of leasehold estate, 86. landlord's affidavit on, 348. Sales — Tax in Brooklyn, lessees may institute summary proceedings, 186. Security — upon appeal to county court, 195, 380, 331. " " " form of, 830, 381. " errors and omissions in, 333. for rent, form of, 868. Servant — and master, relation of, 314. :^, Service — of subpcena, proof of, 858. , ;- ^^ 396 IITDEX Service — of summons, manner of, 338. of summons time of, 359. " " proof of, 359 to 361. " " forms of, proof of, 359 to 361. " " how made, 187, 358. " " proof of what to contain, 188. " " 359 to 361. Setting — off costs upon appeal, 343. Sheriff — ^to execute process on proceedings for forcible entry, 179. Eeturn of on precept, proceedings for forcible entry, 183. to summon jury in summary proceedings, 189, 370, 371. Eeturn of to venire in summary proceedings, 371. Sidevralk — openings upon liability, for, 173. Socage — tenure, 3. Sovereignty — title of the People, 1. Specific performance, 64 to 73, 86. Squatter act, 846 to 849. Removal of squatters, 346, 347. Penalty, 346. serving of notices, 346. Notice to quit, 347. Complaint against squatter, 348. warrant against squatter, 348. Proceedings upon, 349. Statute — relating to occupation of lands in the city of New York, 8. " the creation and division of estate, 5. " untenantable premises, 139. '• forcible entries and detainers, 174 to 181. " summary proceedings, 183, 311 to 398. " " " object of, 311. " " " construction of, 316. " Review of summary proceedings upon certiorari, 193, 317. " bawdy houses, 308. " illegal trades, 307. " squatters, 346. Statutory — demand for rent, 336. Staying^ — warrant in case of rent, 193. •' " insolvent tenant, 193. " " land sold under execution, 193. proceedings by certiorari, see Certiorari, proceedings by appeal, see Appeal, summary proceedings, form of, bonds for, 389 to 393. summary proceedings by injunction, 399 to 303. Subpoenas — for witness on forcible entries, 179. " " on summary proceedings, 857. " " form of, 357. " " proof of, service of, 358. Substitution — of tenant's power of, agent to consent to, 39. " " see Surrender. Sufferance — tenancy by terminated by uotice to quit, 13 to 18, 31 to 35, 335. Index 397 Snfferance — Estates by, 5, 10, 15, 335. Tenancies by, 5, 10, 15, 235. Tenant by proceedings against proof required, 187. Notice to quit, see title Notice to Quit . Snfflciency — of papers, objections to, 362. Suggestio Falsi, effect of, 42. Summary proceedings — The statute relating to, 183 to 196, 311 to 398. Index to statute, 183. Law and practice, 311 to 398. Who may institute, 186, 238. The object of the statute, 311. Construction of statute, 316. Review of, upon certiorari, 193, 317. See title Joinder of Parties, against bawdy houses, 308 to 813. against illegal trades, 307 to 313. Reversal upon certiorari, form of order, 822. Restitution upon certiorari, form of writ, 832. Officers having jurisdiction, 180, 184, 198, 219. Summons — What to contain, 251, 252. Time of return, 252. Forms of, 253 to 258. Forms of for non-payment of rent on landlord's affidavit, 353. " " agent's affidavit, 353. . proceedings against tenant and under-tenants, 358. for holding-over, 354. tenancy at will, 355. Sale under execution, 355. Mortgage foreclosure, 356. Endorsement upon, 357, 358. Proof of service of, 359 to 361. Manner of service, 187, 358. Time of service, 359. Forms of proof of service, 359 to 361. i for jurors, form of, 373. Endorsement required upon, 188. to tenant when and what to contain, 186. Proof required iu certain cases before issuing, 187. under bawdy house act, affidavit landlord, 810. " " neighbor, 311. under illegal trades " landlord, 318. Endorsements upon, 813. Superior Court — of Buffalo, justices have jurisdiction of summary proceedings, 319. Jurisdiction of forcible entries, 199. Snppressio veri — Effect of, 43, 43. Supreme Court — Justices of, have jurisdiction of forcible entry pro- ceedings, 180, 199. General term to review adjudication of magistrates upon cer- tiorari, 193. Proceedings in upon certiorari on forcible entries, 181. Traverse in forcible entry proceedings removed into Supreme Court, 817. 398 INDEX. Surrender, 115 to 130. HoTV made and what amounts to, 115 to 130. Agent's power to accept, 119. by accepting new lease, 119. of tenant's power of agent to consent to, 39. Talesman — in summary proceedings, how summoned, 190, 375. Tax sale — in Brooklyn, leesses under may institute summary pro- ceedings, 186. Tenancy — ^for life, 5. for years, 5. at will 5, 10, 335. by sufferance, 5, 10, 15, 335. by the month, 9, 14, 31 to 35. at will, and by sufferance how terminated, 18, 335. from year to year, 15, 35, 385. Tenant — entering and refusing to accept lease, 14, 61. Penalty for not yielding possession, 17. Penalty for holding-over after notice, 17. not entitled to receipt, 53, 339. Rights of, 81 to 90. right of possession or damages, 81, 83. Damages to evicted tenant, 83. right to remove fixtures, 86 to 88. Remedies of, 91 to 96. Remedy for wrongful entry, 94. estopped from disputing landlord's title, 97. " extent of rule, 97. to deliver certain writs to landlord, 99. Possession of, when deemed landlord's, 99. Liability of for want of repairs, 104. Liability of to third persons, 165 to 178. See Holding-over, Rent, Lodgers, and other titles. may be removed in certain cases, 184, 311. " " for holding-over, 184, 330. ' " " for not paying rent, 184,331. " " if he takes the benefit of Insolvent Act, 185. " " on execution or mortgage sale, 185. " " for holding-over under agreement to cultivate land on shares, 185. may file counter affidavit, and have trial, 189, 366 to 369. may redeem after warrant, 196. Death of, effect of, 398. See titles Bawdy Houses, Illegal Trades. Tender — of payment, 53, 58. Plea of, 58. demand for receipt defeats, 53, 339. Tenement — defined, 81. Tenure — of real property, 1. signifies a holding, 8. Termination — of estates — see under titles of the Particular Estates. of certain estates by notice, 13 to 18, 31 to 25, 333, 335. of certain leases, 38, 333. Three days' notice — Demand of rent by service of, 234. INDEX. 399 Time— See "Holding Over." Title — to certain lands in the people of the state, 1, S. " " " United States, 4. Trades— Illegal, 307 to 313. Restraint of, 64 to 72. Traverse of iHquisition — ^in forcible entry proceedings, 176. Form of, 306. ■when to stay proceedings, 176. When landlord may, 176. Jury to try, 177. Supreme Court, 317. Trespassers — upon lands, 57, 58. See titles " Squatters," "Intruders." Trial — of inquisition in forcible entry proceedings, 176. of traverse of inquisition, " 177. Matters to be shown thereon, proceedings, 178, 307, 209. by jury in summary proceedings, 375 to 378, 383, 383. Adjournment of, 373. Affidavit to adjourn, form of, 373. Proceedings upon, 374 to 283. without a jury, 374. Oath to witnesses, form of, 374. by jury, 375. Talesman, 375. Qualifications and drawing of, 376, 377. Evidence upon, 379. Underletting, 83, 84. Right of, 89. Undertaking — upon appeal to county court, 195. " " " " form of, 830, 831. Errors and omissions upon, 833. Under-tenant — Rights of, 88. right of to pay original landlord, 89. right to sub-let, 89. Untenantable premises — Statute in reference to, 139. Construction of said statute, 139. Use — and occupation, 59 to 63. Validity— of judgments, 386. of leases, 19, 30, 34 to 44. " future terms, 36. Value — Fraudulently misrepresenting, 41. Various — statutes relative to summary proceedings, 311 to 398. Vendee — of real estate, 60, 61, 313. Vendor— " " 60, 61, 313. Venire — for jury summary proceedings, 189. " " " form of, 371. Verbal — agreements, 35, 36. Leases, 35, 36. Verdict— of the jury, 383, 383. " EfEectof, 388. Void lease — ^Possession under efEect of, 9, 14, 30. Effect of occupation thereunder, 30. 400 INDEX. Tfaiver— of objections, 263 to 365. " jury trial, 370. Walls — of adjoining house over-hanging, 73 to 74. . Party. See title " Party Walls," and title "Excavations. " Warrant — Annuls lease, 193, 395. Not to effect other rights, 194. How stayed in case of rent, 193. How stayed in case of sale, 193. How stayed in case of insolvent tenant, 193. How stayed under execution, 193. Bond to stay, different forms of, 389, 390, 391. Issuing of, its form and effect, 393. Forms of, 393, 394, 395. Effect of, 395. Remedy of landlord after issuing of, 395. Protection of, 395. Right to remove person not named in, 396. Form of, under bawdy house act, 313. Form of, under trade illegal act, 313. Form of, by Justices of the Peace, 825. Form of, against squatter, 348. to issue if no cause shown, 188. to issue if decision or verdict be for landlord, 191. how executed, 191. Warranty — when and to what extent implied in a letting, 34, 35. in case of furnished house, 133. Waste, 6, 7, 57. Way— Right of, 161. Widow — of deceased, tenant proceeding against, 314. Will— Estate at, 5, 10, 15, 335. Tenancy at, 6, 10, 15, 335. " terminated by notice to quit, 13, 335. Tenant at proceedi&gs against certain proof required, 187. Wharf — or pier, when within the act, 313. Witnesses — Subpoenas for on forcible entries, 179. Penalty for neglecting to attend, 179. Oath to, on proceedings for forcible entry, 304, 309. How compelled to attend and testify summary proceedings, 191. Oath to, form of upon trial, summary proceedings, 274. Attachment against, 359. Order for, 358. Writ — of error in certain proceedings, 315. of restitution on forcible entries, form of, 306. " " " " after verdict, 310. of certiorari to reivew forcible entry proceedings, 314 to 317. " " " " form of, 331. of error, see " Court of Appeals." Writing — Certain leases to be in, 35, 36. Wrongful acts— See titles Trespassers, Holding-over, Eviction, Damages. Tear — Definition of, 9. Yearly tenancy, 15. Tears — Estates for, 5. Tenancy for, 5, 16. LAW PUBLICATIONS OF WARD & PELOUBET. 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