a precept to the sheriff or any constable of the county, commanding him to summon twelve qualified 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. 1 R. L., 96, § 3; 7 How. P. R., 443. ᎪᎡᎢ, 1, ings before $9. The jurors shall be summoned, returned and impan- Proceednelled, in the same manner as provided by law, in civil actions jury. 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 competent witnesses who may be offered, on oath, to be administered by such judge; and after hearing the allegations 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. 13 How. P. R., 446; 7 How. P. R., 441. ing jury, shown on S 10. If the jury cannot agree, after being kept together Discharg for such time as such judge shall deem reasonable, he may &c. discharge them, and issue a precept for a new jury; and the same proceedings shall be had, in respect to such new jury. $ 11. On the trial of such traverse, the complainant shall What to be only be required to show, in addition to the forcible entry or trial. detainer complained of, that he was peaceably 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 defence, 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. 1 R. L., 96, § 4; 9 W., 52. on verdict $12. The verdict of such jury shall be received and recorded Judgment by the said judge, and if the defendant is thereby found of guilty. guilty, the said judge shall thereupon award restitution of the premises so forcibly entered or forcibly held out, and shall assess the costs and expenses of the proceedings. 1 R. L., 96, § 5 & 2; 6 How. P. R., 178. restitution costs. S13. He shall thereupon issue his precept, reciting the pro- Process for ceedings before him, and commanding the sheriff of the and for 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 seised or possessed 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 [510] TITLE 10. Ib. if there is no tra verse. Sheriffs, &c. duty are or may be collected on judgments before justices of the peace, in personal actions. 1 R. L., 96, § 5 & 2. 14. If no such traverse shall be made, as authorised in the preceding sections of this Title, in the manner therein specified, within twenty-four hours after the inquisition found, the judge shall, in like manner, award restitution of the premises, and assess the costs and expenses of the proceedings; and shall issue his precept, in the same manner, to cause restitution, and for the collection of the costs. 1 R. L., 96, § 3. S15. Sheriffs and constables, to whom any process issued and power. by a judge, as herein authorised, shall be directed 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; fines for neglect. Witnesses how subpœnaed, &c. Certain officers' powers under this Title. Certiorari to remove proceed. ings. Bond to be given. 1 R. L., 96, § 2 & 3. S16. 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 in justices' courts. S 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 herein before directed to 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. 11 W., 158; 13 How. P. R., 446. S18. Every circuit judge, or supreme court commissioner, and every mayor, recorder and alderman of any city, any special justice, any justice of the marine court, and any assistant justice of the city of New-York, shall have the like powers and authority, respecting forcible entries or forcible detainers, in their respective cities or counties, as are above given to judges of the county courts. 19. No proceeding for the restitution of any premises forcibly entered or forcibly detained, had according to the foregoing provisions, shall be removed by any certiorari, unless the same be allowed by a justice of the supreme court, a circuit judge, or supreme court commissioner. 3 H., 446; 4 W., 213; 24 B., 16. S 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 sufficient 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 party 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 shall be awarded against such defendant. Such bond shall be delivered to the judge to whom such certiorari shall be directed, and until the same be so delivered, such certiorari shall be of no effect. 4 W., 214; 20 How. P. R., 170. ART. 2. [511] writ and S 21. The judge shall annex, and file such bond, with his Return to return to such writ, and the supreme court shall proceed proceedtherein, and cause the defendant to traverse the inquisition, if no traverse has been had, and shall direct a trial. ings. when S22. If the defendant shall omit to traverse such inquisi- Restitution tion, within such time as the court, by rule, shall direct, awarded, restitution shall be awarded by the court, with costs. And if, upon the trial of such traverse, the defendant be found guilty, the supreme court shall also award restitution, with costs; and in either case, the court may authorise the complainant to prosecute the bond given, on the allowance of the writ of certiorari. by criminal $23. Upon the conviction of a defendant upon any indict- Restitution ment for forcible entry or forcible detainer, found in any courts. 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 verdict being rendered before him, as herein provided. ARTICLE SECOND. SUMMARY PROCEEDINGS TO RECOVER THE POSSESSION OF LAND IN SEC. 24. When justice to view deserted premises and give notice to tenant. 25. When landlord to be put in possession. 26. Appeal by tenant, return by justice. 27. Power of common pleas; to award restitution. 28. Cases in which tenants may be removed. 29. Affidavit of facts to be made. 30. Summons to tenant when to be issued. 31. Proof required before granting summons. 32. Summons how to be served. 33. If no cause shown, warrant of possession to issue. 34. Tenant may deny facts alleged. 35. Proceedings to form jury to try facts. 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. TITLE 10. [512] Viewing notice to tenant. SEC. 41. When adjournment may be had; for what time. 45. How stayed where tenant has taken benefit of act. 48. When supreme court to award restitution. 49. Costs by whom paid; damages when to be recovered. 52. Removal of proceedings by appeal. 53. Security to be given. $ 24. If any tenant being in arrear for rent, shall desert premises; the demised premises, and leave the same unoccupied and uncultivated, without any goods thereon subject to distress to satisfy the arrears of rent, any justice of the peace of the 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 specified, not lest than five, nor more than twenty days after the date thereof. Putting landlord sion, &c. 22 W., 611; 16 How. P. R., 451; 2 Hilt., 520. S25. At the time specified in such notice, the justice shall into posses- again view the premises; if the tenant appear and deny that any rent is due to the landlord, all proceeding shall cease. If upon such second view, the tenant or some one for him, shall not appear and pay the rent in arrear, and there shall not be sufficient distress on the premises to satisfy such rent, then such justice may put the landlord into possession of the said demised premises; and any demise of the said premises to such tenant, shall from thenceforth become void. Appeal by tenant. Power of common pleas. 2 Ab., 123. $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 court of common pleas of the county, by serving notice in writing thereof upon such justice, and by giving security to be approved by such justice, to pay to the landlord 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 give notice to the landlord of such appeal. $ 27. The court of common pleas shall examine the proceedings, 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 landlord; or in case of affirming such proceedings may award costs against the tenant. ART. 2. $28. Any tenant or lessee at will, or at sufferance, or for What tenants may be part of a year, or for one or more years, of any houses, lands removed. or tenements; and the assigns, under-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 justice of the peace of the city or town where the premises are situated, or by any mayor or recorder of the city, where such premises are situated; or in the city of New-York, by the mayor, recorder, any justice of the marine court, or any one of the justices of the justices' courts of the city of New-York in the manner herein after prescribed, in the following cases: [513] holding 1. Where such person shall hold over and continue in pos- In case of session of the demised premises, or any part thereof, after the over. expiration of his term, without the permission of the landlord: paying 2. Where such person shall hold over without such permis- Default in sion as aforesaid, after any default in the payment of rent rent. pursuant to the agreement under which such premises are held, and a demand of such rent shall have been made, or three days' notice in writing, 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: benefit of 3. Where the tenant or lessee of a term of three years, or Taken less, shall have taken the benefit of any insolvent act, or been insolvent discharged under any act for the relief of his person from imprisonment during such term : act. Land sold 4. Where any person shall hold over and continue in posses- by execusion of any real estate which shall have been sold by virtue tíon. of an execution against such person, after a title under such sale shall have been perfected. 16 N. Y., 567; 13 N. Y., 304; 9 N. Y., 37, 231; 24 B., 439; 16 B., 478. be made. $29. Any landlord or lessor, his legal representatives, Amdavit to agents or assigns, may make oath in writing, of the facts, which, according to the preceding section, authorise 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. 5 N. Y., 383; 24 B., 438; 16 B., 478; 4 D., 71; 6 H., 317; 3 H., 332; to tenant. $30. On receiving such affidavit, such officer shall issue his Summons summons, describing the premises of which possession is II. — 67 |