CHAPTER XVII. CERTAIN SPECIAL PROCEEDINGS INSTITUTED TITLE II. Summary proceedings to recover the possession of real property. PRELIMINARY NOTE.- The enactments revised in this title are 2 R. S., 507-516, Part 3, ch. 8, tit. 10 (3 R. S., 5th ed., 831-840; 2 Edm., 523-534), entitled "Summary proceedings to recover the possession of land in certain cases," and the subsequent amendatory and supplemental acts, to wit: L. 1842, ch. 240, § 1 (3 R. S., 5th ed., 840; 4 Edm., 661); L. 1849, ch. 193 (3 R. S., 5th ed., 836, 837, 840; 2 Edm., 529, 531, 533, 534); L. 1851, ch. 460; L. 1857, ch. 684 (3 R. S., 5th ed., 837, 838, 839; 2 Edm., 529, 530, 531, 532); L. 1862, ch. 368 (2 Edm., 531); L. 1863, ch. 189 (6 Edm., 86); L. 1868, ch. 764 (7 Edm., 335); id., ch. 828 (7 Edm., 355); L. 1873, ch. 583 (9 Edm., 653); L. 1874, ch. 208, and id., ch. 471 (9 Edm., 874, 961); L. 1876, ch. 356; and L. 1877, ch. 187. The provisions of these statutes have been greatly condensed; not only by amendments of the language used, the consolidation of separate provisions relating to similar subjects, and the omission of superfluous provisions; but also by providing a common mode of procedure for the different classes of cases of which they treat. The corresponding title of the R. S. is divided into two articles, to wit: article 1, entitled, "Of forcible entries and detainers," and article 2, entitled, "Summary proceedings to recover the possession of land in other cases ;" and the remedies under the two articles are different, in substance and in form. The statutes from which article 1 was taken, were originally of a criminal character, and their object was rather to punish the wrong-doer, than to restore the possession to the person wrongfully dispossessed; and although they were afterwards so modified as to be strictly remedial in their character, the mode of procedure was analogous to that in criminal proceedings, and too intricate and expensive to be of much practical value. Indeed, the expression, "summary," as applied to the proceedings under article 1, was a misnomer; for the necessary inquisition before a quasi grand jury, the traverse thereof, and the usual certiorari to the supreme court, with the difficulties and doubts necessarily attending an anoma PART II. JUSTICE'S MANUAL. lous and unusual mode of procedure, constituted a system, under which a complainant would rarely be restored to possession, sooner than he would be by the ordinary action of ejectment. As the effect of the proceedings was only to restore the possession, without trying the title, it was thought unnecessary to preserve them in the form of a separate remedy; and, accordingly, this title consolidates the two articles, and thus provides one method in all cases to recover summarily the possession of land. The remedy under §§ 24-27 of the R. S. (article 2), by a view, etc., of deserted premises has also been abolished. It is unnecessary, since the abolition of distress for rent, as the landlord may obtain possession, in such a case, in the same manner as in other cases, ample provision being made for service of the precept. When tenant may be removed. As a summons is now the appropriate process for the commencement of a civil action, the word, "precept", which was the name of the initial process in proceedings under article 1 of the R. S., has been adopted to designate the process by which each of the special proceedings taken under this title is commenced. For a similar reason, a petition has been substituted, in place of the "complaint," under article 1, and the "affidavit," under article 2; and a final order in place of the "award" and the "judgment," under article 2. § 2231. In either of the following cases, a tenant or lessee at will, or at sufferance, or for part of a year, or for one or more years, of real property, including a specific or undivided portion of a house, or other dwelling, and his assigns, undertenants, or legal representatives, may be removed therefrom, as prescribed in this title: 1. Where he holds over and continues in possession of the demised premises, or any portion thereof, after the expiration of his term, without the permission of the landlord. 2. Where he holds over, without the like permission, after a .default in the payment of rent, pursuant to the agreement under which the demised premises are held, and a demand of the rent has been made, or at least three days' notice in writing, requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served, in behalf of the person entitled to the rent, the person owing it, as prescribed in this title for the service of a precept. upon 3. Where he, being in possession under a lease for a term of three years or less, has, during the term, taken the benefit of an insolvent act, or has been adjudicated a bankrupt, under a bankrupt law of the United States. 4. Where the demised premises, or any part thereof, are used or occupied as a bawdy-house, or house of assignation for lewd persons, or for any illegal trade or manufacture, or other illegal business. [2 R. S., 512, Part 3, ch. 8, tit. 10, § 28, subd. 1, 2 and 3 (3 R. S., 5th ed., 836; 2 Edm., 529), as amended by L. 1849, ch. 193; also § 55, added to the same title by L. 1868, ch. 764, § 1 (7 Edm., 335); and L. 1873, ch. 583, § 1 (9 Edm., 653); consolidated, with several amendments, none of which materially affect the true construction of the former statutes. The expression in § 28 of the R. S., "assigns, undertenants or legal representatives" has been retained, under which it was held, that where a landlord took these proceedings against his tenant, and an undertenant in possession was not made a party, a warrant, following a judgment for the petitioner, to remove "all persons" from the premises, and put the petitioner into possession, was a protection to the marshal for ejecting the undertenant, but that the landlord was liable to the latter in damages, as for trespass. Croft, Adm'x, v. King, Ex'r, N. Y. C. P., 19 A. L. J. 441. In subd. 2, the words, "in the alternative", have been inserted for greater clearness; and the words, "in behalf of", have been substituted for "by", to avoid the possible construction that the notice must be served by the landlord personally. It was held, in People v. Dudley, 58 N. Y., 328, that a demand of the rent may include interest from the time of the default. The ruling will be equally applicable to this subdivision as amended. See, also, People ex rel. Morgan v. Keteltas, 12 Hun, 67. The proceedings cannot be taken for a failure to pay taxes, pursuant to a covenant in the lease, although the lease contains a provision avoiding it in case of such a failure. People ex rel. Jay v. Bennett, 14 Hun, 58. Where, during the life of a lease, the landlord and the tenant entered into a contract for the sale of the property to the latter, providing that it should be void if it was not fulfilled by a specified time, and the tenant failed to fulfil the contract of sale by the time specified, and afterwards rent was paid upon the lease, held, that the landlord might maintain these proceedings, although valuable improvements had been made while the contract of sale was in force; and that the effect of the summary proceedings was to restore the landlord to possession, free from all claims under the lease or contract. Bostwick v. Frankfield, 11 Hun, 475. In subd. 3, the words "he being in possession under a lease for" have been substituted in place of "the tenant or lessee of", so as to correspond with the phraseology of the other subdivisions; and the final clause has been substituted for "under any act for the relief of his person from imprisonment ", as being broader than the original. Subd. 4 contains the substance of the provisions of the acts of 1868 and 1873, without material change.] PART II. holding over land may be § 2232. In either of the following cases, a person, who holds Person over and continues in possession of real property, after notice to sold, etc., quit the same has been given, as prescribed in section 2236 of this removed. act, and his assigns, tenants, or legal representatives, may be removed therefrom, as prescribed in this title: 1. Where the property has been sold by virtue of an execution JUSTICE'S MANUAL. against him, or a person under whom he claims, and a title under the sale has been perfected. Id.; in case of forcible entry or detainer. 2. Where the property has been duly sold, upon the foreclosure, by proceedings taken as prescribed in title ninth of this chapter, of a mortgage executed by him, or a person under whom he claims, and the title under the foreclosure has been duly perfected. 3. Where he occupies or holds the property, under an agreement with the owner to occupy and cultivate it upon shares, or for a share of the crops, and the time, fixed in the agreement for his occupancy, has expired. 4. Where he, or the person to whom he has succeeded, has intruded into, or squatted upon, a parcel of land, in a city or incorporated village, without the permission of the person entitled to the possession thereof, and the occupancy, thus commenced, has continued without permission from the latter; or after a permission given by him has been revoked, and notice of the revocation given to the person or persons to be removed. [Subd. 1, 2, and 3 of this section consist of subd. 4 of § 28 of the R. S., referred to in the note to the last section, as amended by L. 1874, ch. 208, and subd. 5, added by id., ch. 471; and also the last sentence of § 31 of the same title; the whole remodelled and amended as follows: The introductory clause, and subd. 1, have been reconstructed in accordance with the construction given to the corresponding provisions of the R. S., in Spraker v. Cook, 16 N. Y., 567. In subd. 2, L. 1874, ch. 208, has been amended, so as to confine the remedy to a foreclosure, by advertisement as prescribed in title 9th of this chapter, of a mortgage executed by the person in possession, or some one under whom he claims. It is unnecessary to extend this remedy to a purchaser under a foreclosure by action, for the judg ment always provides for letting the purchaser into possession. The restriction of the provision to a case where a person against whom the proceeding is taken, is in privity with the mortgagor, is probably in accordance with the true construction of the act of 1874. Subd. 3 contains the substance of L. 1874, ch. 471. Each of the acts of 1874 is so framed, that a previous notice to quit is apparently unnecessary, in the new case which it creates; but it is presumed that the omission was inadvertent. As this section is remodelled, such a notice will be necessary. Subd. 4 is new. It was suggested by L. 1857, ch. 396, §§ 1 and 2 (4 Edm., 617), which make the acts herein provided for a misdemeanor. The owner will be much more effectually protected, and restored to his rights, by conferring upon him this civil remedy. See People v. Hovey, 4 Lans., 86.] § 2233. An entry shall not be made into real property, but in a case where entry is given by law; and, in such a case, only in a peaceable manner, not with strong hand, nor with multitude of people. A person who makes a forcible entry forbidden by this section, or who, having peaceably entered upon real property, holds the possession thereof by force, and his assigns, undertenants, and legal representatives, may be removed therefrom, as prescribed in this title. [This section is a substitute for 2 R. S., 507, Part 3, ch. 8, tit. 10, §§ 1 and 2 (3 R. S., 5th ed., 831; 2 Edm., 523). The essential language of the original has been preserved unaltered. The reasons for inserting here this section, and the other provisions which are necessary to adapt the proceedings taken under this title, to cases of forcible entry and detainer, have been explained in the preliminary note. Where the owner of land wrongfully held out of possession, regains possession peaceably, he may maintain it, and consequently may lawfully resist an attempt of the former occupant to retake possession, without being guilty of a wrongful detainer. Bliss v. Johnson, 73 N. Y., 529.] РАКТ ІІ. tion, to made. § 2234. [Amended, 1881, ch. 122.] Application for the re- Applica moval of a person from real property, as prescribed in this title, whom may be made to the county judge or special county judge of the county, or a justice of the peace of the city or town, or the mayor or recorder of the city, wherein the real property, or a portion thereof, is situated. Application may also be made, if the property, or a portion thereof, is situated in the city of New-York, to a justice of the marine court of that city or to the district court of the district within which the property, or a portion thereof, is situated; if in the city of Brooklyn, to a police justice of that city; if in the city of Albany, or the city of Troy, to a justice of the justices' court of that city; if in the city of Yonkers, to the city judge of that city; if in the cities of Rochester or Buffalo, to a judge of the municipal court of that city. Where the property is situated in an incorporated village, the boundaries of which embrace portions of two or more towns, application may be made to a justice of the peace of either town, who keeps an office in the village.(*) [The principal amendments of 1881 consist of striking out the city judge and the judge of general sessions in New-York city, and the addition of the last sentence. This section, as enacted in 1880, repro (a) As to the civil jurisdiction of village police justices, see L. 1881, ch. 615, pp. 384, 385. post. L. 1880, ch. 256, § 6, requires summary proceedings in Brooklyn to be brought in the district where the land, or a portion thereof, is situated, or in an adjoining district. |