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CODE OF CIVIL PROCEDURE.

PART 2.

[CHAPTER 178 OF THE LAWS OF 1880.]

AN ACT SUPPLEMENTAL TO THE CODE OF CIVIL PRO

CEDURE.

Passed May 6, 1880; three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. The act, entitled "An act relating to courts, officers of justice, and civil proceedings," passed June 2, 1876, is hereby amended by striking out section fourteen hundred and ninety-six thereof, and by adding, after section fourteen hundred and ninety-five thereof, as follows, that is to say:

CHAPTER XIV.

SPECIAL PROVISIONS REGULATING ACTIONS RELATING TO PROPERTY.

TITLE I-ACTIONS RELATING TO REAL PROPERTY.

TITLE II.-ACTIONS RELATING TO CHATTELS.

TITLE I.

Actions relating to real property.

ARTICLE 1. Action to recover real property.

2. Action for partation.

3. Action for dower.

4. Action to foreclose a mortgage.

5. Action to compel the determination of a claim to real property.

6. Action for waste.

7. Action for a nuisance.

8. Other actions relating to real property.

9. Provisions applicable to two or more of the actions specified in this title.

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§ 1496. In an action to recover real property, or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover, damages for withholding the property.

§ 1497. Those damages include the rents and profits or the value of the use and occupation of the property, where either can legally be recovered by the plaintiff.

§ 1498. A mortgagee, or his assignee or other representative, cannot maintain such an action, to recover the mortgaged premises.

§ 1499. Such an action cannot be maintained, in a case where an action for dower may be maintained, as prescribed in article third of this title.

§ 1500. Where two or more persons are entitled to the possession of real property, as joint tenants or tenants in common, one or more of them may maintain such an action, to recover his or their undivided shares in the property, in any case where such an action might be maintained by all.

$1501. [am'd 1882.] Such an action may be maintained by a grantee, his heir or devisee in the name of the grantor, or his heir, where the conveyance, under which he claims, is void because the property conveyed was held adversely to the grantor. The plaintiff must be allowed to prove the facts to bring the case within this section. In such an action, a judgment against the plaintiff shall not award costs to the defendant; but when the defendant is entitled to costs, as prescribed in section three thousand two hundred and twenty-nine of this act, they may be taxed, and the person who maintained the action in the plaintiff's name may be compelled to pay the same as prescribed in section three thousand two hundred and forty-seven of this act.

1502. Where the complaint demands judgment for the immediate possession of the property, if the property is actually occupied, the occupant thereof must be made defendant in the action. If it is not so occupied, the action must be brought against some person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, at the time of the commencement of the action.

§ 1503. In either of the cases specified in the last section, any other person claiming title to, or the right to the possession of, the real property sought to be recovered, as landlord, remainderman, reversioner, or otherwise, adversely to the plaintiff, may be joined as defendant in an action

therefor.

1504. When six months' rent or more is in arrear, upon a grant reserv-, ing rent, or upon a lease of real property, and the grantor or lessor, or his heir, devisee, or assignee, has a subsisting right by law to re-enter for the failure to pay the rent, he may maintain an action to recover the property granted or demised, without any demand of the rent in arrear, or re-entry on the property.

§ 1505. Where a right of re-entry is reserved and given to a grantor or lessor of real property, in default of a sufficiency of goods and chattels whereon to distrain for the satisfaction of rent due, the re-entry may be made, or an action to recover the property demised or granted, may be maintained, by the grantor or lessor, or his heir, devisee, or assignee, at any time after default in the payment of the rent; provided the plaintiff, at least fifteen days before the action is commenced, serves upon the defendant a written notice of his intention to re-enter, personally, or by leaving it at his dwelling house on the premises, with a person of suitable age and discretion; or, if the defendant cannot be found with due diligence, and has no dwelling house on the premises, whereat a person of suitable age and discretion can be found, by posting it in a conspicuous place on the premises.

1506. At any time before final judgment for the plaintiff is rendered, and the judgment-roll is filed, in an action brought as prescribed in either of the last two sections, the defendant may pay or tender to the plaintiff or his attorney, or pay into court, all the rent then in arrear, with interest and the costs of the action to be taxed; and thereupon the complaint must be dismissed.

§ 1507. In such an action, a verdict, report, or decision in favor of the plaintiff, must fix the amount of rent in arrear to the plaintiff, or, if judgment is taken by default, the amount thereof must be ascertained by or under the direction of the court; and, in either case, it must be stated in the judgment.

§ 1508. At any time within six months after possession of the property, awarded to the plaintiff in such an action, has been delivered to him, by virtue of an execution issued upon a judgment rendered therein, the defendant, or any person who has succeeded to his interest, or a mortgagee of the lease, or of any part thereof, who was not in possession when final judgment was rendered, may pay or tender to the plaintiff, or his executor, administrator, or attorney, or may pay into court, for the use of the person so entitled thereto, the amount of rent in arrear, as stated in the judgment, and the costs of the action, with interest, and all other charges incurred by the plaintiff.

1509. Within three months after making the payment or tender, the person who made it, or his representative, may apply to the court for an order that possession of the property be delivered to him; and thereupon, upon proof of the facts, and payment of the sum due by reason of rent accruing since the judgment was rendered, and upon compliance with all other terms to be complied with by the grantee or lessee, to the time of the application, the court must make an order, directing that possession of the property be delivered to the applicant, who shall hold and enjoy the same, without any new grant or lease thereof, according to the terms of the original grant or lease. Notice of the application must be served upon the plaintiff's attorney.

1510. If possession of the property recovered has been delivered to the

plaintiff, by virtue of an execution issued upon a judgment in the action the order must provide for setting off the sum which the plaintiff has made, or which he might, without wilful neglect, have made, of the property, during the possession thereof, against the rent accruing after the judgment was rendered, and for re-imbursement to the applicant of the balance, if any, of the sum paid into court by him, after making the set-off prescribed in this section.

§ 1511. The complaint must describe the property claimed with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or in some other appropriate manner; so that, from the description, possession of the property claimed may be delivered, where the plaintiff is entitled thereto.

1512. A defendant in an action to recover real property or the possession thereof may, at any time before answering, upon an affidavit that evidence of the authority of the plaintiff's attorney to commence the action has not been served upon him, apply, upon notice, to the court or judge thereof, for an order directing the attorney to produce such evidence.

§ 1513. Upon such an application, the court or judge must, in a proper case, make an order, requiring the plaintiff's attorney to produce, as directed therein, evidence of his authority to commence the action, and staying all proceedings therein, on the part of the plaintiff, until the evidence is produced.

1514. Any written request of the plaintiff or his agent to the plaintiff's attorney, to commence the action, or any written recognition of his authority so to do, verified by the affidavit of the attorney, or any other competent witness, is sufficient presumptive evidence of such authority

1515. Where the action is brought by a tenant in common, or a joint tenant, against his co-tenant, the plaintiff, besides proving his right, must also prove that the defendant actually ousted him, or did some other act, amounting to a total denial of his right.

1516. Where there are two or more defendants, and it is alleged, in the answer of either of them, that he occupies in severalty, or that he and one or more of his co-defendants occupy jointly, one or more distinct parcels, and that one or more other defendants possess other parcels, in severalty or jointly, the court may, in its discretion, upon the application of the plaintiff, and upon such terms as justice requires, direct that the action be divided into as many actions as are necessary. If the action is not so divided, and it appears, upon the trial, that the allegation is true, the plaintiff must, before the evidence is closed, elect against which defendant or defendants he will proceed; and a judgment dismissing the complaint must thereupon be rendered, in favor of the other defendants.

§ 1517. The last section does not apply to a case, where two or more defendants occupy different apartments in a building. In such a case, in an action to recover the building and its curtilage, the plaintiff is entitled to judgment jointly against all the defendants who are liable to him.

§ 1518. Section one thousand five hundred and sixteen of this act does not apply to a case, where one or more defendants, answering as therein presented, hold under another defendant, and the plaintiff elects to proceed against the latter, subject to the rights and interests of the former. In such a case, the proceedings against the defendants so answering must be stayed until final judgment; and if the plaintiff recovers final judgment against

the defendant, under whom they hold, the judgment operates as a transfer to the plaintiff of that defendant's right, title, and interest, and the costs of the defendant or defendants so answering are in the discretion of the

court.

1519. A verdict, report, or decision, in favor of the plaintiff, in an action specified in this article, must specify the estate of the plaintiff in the property recovered, whether it is in fee, or for life, or for a term of years, stating for whose life it is or specifying the duration of the term, if the estate is less than a fee.

§ 1520. If the right or title of the plaintiff, in an action specified in this article, expires after the commencement of the action, but before the trial, and he would have been entitled to recover, but for the expiration, the verdiet, report, or decision must be rendered according to the fact; and the plaintiff is entitled to judgment for his damages for the withholding of the property, to the time when his right or title so expired.

1521. The provisions of title fourth of chapter eighth of this act, as applied to an action specified in this article, are subject to the qualification that the court may, in its discretion, proceed as prescribed either in that title or in the next two sections.

§ 1522. Where, upon the death of a party, different persons succeed to the decedent's title to, or interest in, different distinct parcels of the property sought to be recovered, the court may, upon motion, and upon such terms as justice requires, direct that the action be divided into as many actions as are necessary; and that the successor to the title or interest of the decedent, to or in each distinct parcel, be substituted as plaintiff or defendant as the case requires, in the action relating thereto.

§ 1523. Where the plaintiff seeks to recover damages for withholding the property, and, upon the death of a party, different persons succeed to the decedent's right to or liability for those damages, and to his title to or interest in the property, the court may, upon motion made upon notice to the persons to be affected, and upon such terms as justice requires, direct the action to be divided into two actions, one to recover the possession of the property, with the rents and profits thereof accruing after the decedent's death; the other to recover the damages accruing before his death; and that the successor in interest of the decedent, with respect to the cause of action in each action, be substituted as plaintiff or defendant therein, as the case requires.

§ 1524. Except in a case where it is otherwise expressly prescribed in this act, a final judgment in an action specified in this article, rendered upon the trial of an issue of fact, is conclusive, as to the title established in the action, upon each party against whom it is rendered, and every person claiming from, through, or under him, by title accruing, either after the judgment-roll is filed, or after a notice of the pendency of the action is filed in the proper county clerk's office, as prescribed in article ninth of this title.

§ 1525. The court, at any time within three years after such a judgment is rendered, and the judgment-roll is filed, upon the application of the party against whom it was rendered, his heir, devisee, or assignee, and upon pay ment of all costs, and all damages, other than for rents and profits or for use and occupation, awarded thereby to the adverse party, must make an order vacating the judgment, and granting a new trial in the action. The court upon a like application, made within two years after the second final judgment is rendered, and the judgment-roll is filed, may make an order

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