2 Dem. 242, rendered in the court, of which the judge or justice is the presiding officer. § 2251. [Am'd 1882.] Where the final order is in favor of the petitioner, the judge or justice must thereupon issue a warrant, under his hand, directed to the sheriff of the county or to any constable or marshal of the city in which the property or a portion thereof is situated, or if it is not situated in a city, to any constable of any town in the county, describing the property and commanding the officer to remove all persons therefrom; and also, except where the case is within section two thousand two hundred and thirty-seven of this act, to put the petitioner into the full possession thereof. § 2252. The officer, to whom the warrant is directed and delivered, must execute it, according to the command thereof, between the hours of sunrise and sunset. 2253. The issuing of a warrant, for the removal of a ten ant from demised premises, cancels the agreement for the us of the premises, if any, under which the person removed held them; and annuls accordingly the relation of landlord and tenant, except that it does not prevent a landlord from recovering, by action, any sum of money, which was, at the time when the precept was issued, payable by the terms of the agreement, as rent for the premises; or the reasonable value of the use and occupation thereof, to the time when the warrant was issued, for any period of time, with respect to which the agreement does not make any special provision for payment of rent. § 2254. [Am'd 1885.] The party, against whom a final order is made, requiring the delivery of possession to the petitioner, may, at any time before a warrant is issued, stay the issuing thereof; and also stay an execution to collect the costs, as follows: 1. Where the final order establishes that a lessee or tenant holds over, after a default in the payment of rent, or of taxes or assessments, he may effect a stay, by payment of the rent due, or of such taxes or assessments, and interest and penalty, if any thereon due, and the costs of the special proceeding; or by delivering to the judge or justice, or the clerk of the court, his undertaking to the petitioner, in such sum and with such sureties as the judge or justice approves, to the effect that he will pay the rent, or such taxes or assessments, and interest and penalty and costs, within ten days, at the expiration of which time a warrant may issue, unless he produces to the judge or justice satisfactory evidence of the payment. 2. Where the final order establishes that a lessee or tenant has taken the benefit of an insolvent act, or has been adjudicated a bankrupt, he may effect a stay, by paying the costs of the special proceeding, and by delivering to the judge or justice, or the clerk of the court, his undertaking to the petitioner, in such a sum and with such sureties as the judge or justice approves, to the effect, that he will pay the rent of the premises, as it has become, or thereafter becomes due. 3. Where the final order establishes that the person against whom it is made, continues in possession of real property, which has been sold by virtue of an execution against his property, he may effect a stay, by paying the costs of the special proceeding, and delivering to the judge or justice, or the clerk of the court, an affidavit, that he claims the possession of the property, by virtue of a right or title, acquired after the sale, or as guardian or trustee for another; together with his undertaking to the petitioner, in such a sum and with such sureties as the judge or justice approves, to the effect, that he will pay any costs and damages, which may be recovered against him, in an action of ejectment to recover the property, brought against him by the petitioner within six months thereafter; and that he will not commit any waste upon or injury to the property, during his occupation thereof. § 2255. Where an undertaking is given, in a case specified in subdivision first of the last section, the judge or justice must deliver it to the person against whom the final order was made, upon his producing the evidence of payment, mentioned in that subdivision. If he does not produce such evidence within ten days, the judge or justice must deliver it to the petitioner. In every other case speciied in the last section, the judge or justice must deliver the undertaking to the petitioner, immediately after his approval thereof. 2256. Where the special proceeding is founded upon an allegation that a lessee holds over, after a default in the payment of rent, and the unexpired term of the lease, under which the premises are held, exceeds five years, at the time when the warrant is issued; the lessee, his executor, administrator, or assignee, may, at any time within one year after the execution of the warrant, pay or tender to the petitioner, his heir, executor, administrator, or assignee, or if, within five days before the expiration of the year, he cannot, with reasonable diligence, be found within the city or town, wherein the property, or a portion thereof, is situated, then to the judge or justice who issued the warrant, or his successor in office, all rent in arrear at the time of the payment or tender, with interest thereupon, and the costs and charges incurred by the petitioner. Thereupon the person, making the payment or tender, shall be entitled to the possession of the demised premises, under the lease, and may hold and enjoy the same, according to the terms of the original demise, except as otherwise prescribed in the next section but one. § 2257. In a case specified in the last section, a judg ment creditor of the lessee, whose judgment was docketed 18 Abb. N. C. 242. 18 Misc. 415. in the county, before the precept was issued, or a mortgagee of the lease, whose mortgage was duly recorded, in the county, before the precept was issued, may, at any time before the expiration of one year after the execution of the warrant, unless a redemption has been made as prescribed in the last section, file with the judge or justice who issued the warrant, or with his successor in office, a notice, speci fying his interest and the sum due to him; describing the premises; and stating that it is his intention to redeem, as prescribed in this section. If a redemption is not made by the lessee, his executor, administrator, or assignee, within a year after the execution of the warrant, the person so filing a notice, or, if two or more persons have filed such notices, the one who holds the first lien, may, at any time before two o'clock of the day, not a Sunday or a public holiday, next succeeding the last day of the year, redeem for his own benefit, in like manner as the lessee, his executor, administrator, or assignee might have so redeemed. Where two or more judgment creditors or mortgagees have filed such notices, the holder of the second lien may so redeem at any time before two o'clock of the day, not a Sunday or a public holiday, next succeeding that in which the holder of the first lien might have redeemed; and the holder of the third and each subsequent lien, may redeem, in like manner, at any time before two o'clock of the day, not a Sunday or a public holiday, next succeeding that in which his predecessor might have redeemed. But a second or subsequent redemption is not valid, unless the person redeeming pays or tenders to each of his predecessors who has redeemed, the sum paid by him to redeem, and also the sum due upon his judgment or mortgage; or deposits those sums with the judge or justice, for the benefit of his predecessor or predecessors. § 2258. Where a redemption is made, as prescribed in either of the last two sections, the rights of the person redeeming are subject to a lease, if any, executed by the petitioner, since the warrant was issued, so far that the new lessee, his assigns, undertenants, or other representatives. may, upon complying with the terms of the lease, hold the premises so leased until twelve o'clock, noon, of the first day of May, next succeeding the redemption. And, in all other respects, the person so redeeming, his assigns and representatives, succeed to all the rights and liabilities of the petitioner, under such a lease. § 2259. The person redeeming, as prescribed in the last three sections, or the owner of the property so redeemed, may present to the judge or justice who issued the warrant, or to his successor in office, a petition, duly verified, setting forth the facts of the redemption, and praying for an order, establishing the rights and liabilities of the parties upon the redemption. Whereupon the judge or justice must make an order, requiring the other party to the redemption to show cause before him, at a time and place therein specified, why the prayer of the petition should not be granted. The order to show cause must be made returnable, not less than two nor more than ten days, after it is granted; and it must be served at least two days before it is returnable. Upon the return thereof, the judge or justice must hear the allegations and proofs of the parties and must make such a final order as justice requires. The costs and expenses must be paid by the petitioner. The final order, or a certified copy thereof, may be recorded in like manner as a deed. A person, other than the lessee who redeems as prescribed in the last three sections, succeeds to all the duties and liabilities of the lessee, accruing after the redemption, as if he was named as lessee in the lease. § 2260. An appeal may be taken from a final order, made as prescribed in this title, to the same court,* within the same time, and in the same manner, as where an appeal is taken from a judgment rendered in the court, of which the judge or justice is the presiding officer, and with like effect; except as otherwise prescribed in the next two sections. § 2261. [Am'd 1893, 1895, amendment to take effect Janwary 1, 1896.] The issuing or execution of the warrant can not be stayed by such an appeal, or by the giving of an undertaking thereupon, otherwise than as prescribed in the next section. An appeal can not be taken to the court of appeals, from a final determination of the appellate division of the supreme court upon such an appeal, unless the latter court, by an order, made at the term of the appellate division where the final order is made, or the next term thereafter allows it to be taken. 18 Week. § 2262. [Am'd 1893, 1895, amendment to take effect January 2 Civ. Pro. 1, 1896.] Where an appeal is taken from a final order, 285. awarding delivery of possession to the petitioner, which establishes that a lessee or tenant holds over, after a default in payment of rent or from an order or judgment affirming such final order, the issuing and execution of the warrant may be stayed by the order of the county judge, and in the city and county of New York by a justice of the supreme court, upon the appellant's giving the security required to rerfect the appeal, and to stay the execution of the order appealed from and also an undertaking to the petitioner, in a Sun and with sureties, approved by the county judge, or in the city and county of New York by a justice of the supreme court, to the effect that if, upon the appeal, a final determintion is rendered against the appellant, he will pay all rents accruing or to accrue upon the premises, or if there is no lease thereof, the value of the use and occupation of the preises subsequent to the institution of the special proceedings. 2263. If the final order is reversed upon the appeal, 182 N. X. 368. he appellate court may award restitution to the party jured, with costs; and it may make an order, or issue any other mandate, necessary to carry its determination into effect. The person dispossessed may also maintain an action, to recover the damages which he has sustained by the dispossession. •See note to 3215 73 Hun, 415. 25 Hun, 268. 12 Abb. N. C. 348. § 2264. This title does not impair the rights of a landlord, lessor, or tenant, in a case not therein provided for. Where a special statutory provision confers a right to take proceedings, in the manner heretofore prescribed by law, for the summary removal of a person in possession of real property, the proceedings thereunder must be taken as prescribed in this title. A final order, made in a special proceeding, taken as prescribed in this title, is not a bar to an action of ejectment, to recover the property affected thereby. § 2265. Where a petition is presented, as prescribed in this title, the proceedings thereupon before the final order. and, if the final order awards delivery of the possession to the petitioner, the issuing or execution of the warrant there upon, cannot be stayed or suspended by any court or judge, except in one of the following methods: 1. By an order made, or an undertaking filed, upon an appeal, in a case and in the manner specially prescribed for that purpose in this title. 2. By an injunction order, granted in an action against the petitioner. Such an injunction shall not be granted before the final order in the special proceeding, except in a case where an injunction would be granted to stay the proccedings, in an action of ejectment, brought by the petitioner, and upon the like terms; or after the final order, except in a case where an injunction would be granted to stay the execution of the final judgment in such an action, and upon the like terms. TITLE III. Proceedings to punish a contempt of court, other than a criminal contempt. 2276. Warrant: how executed. 2278. When habeas corpus may |