trict court of the district* within which the property, or a portion thereof, is situated; or if the judge of such court be for any reason disqualified, to the district court of an adjoining district*; 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 justice's court of that city; if in the city of Yonkers, to the city judge of that city; if in the cites of Syracuse, Rochester or Buffalo, to a judge of the municipal court of said cities. 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. $2235. The application may be made by the landlord or lessor of the demised premises; the purchaser upon the execution or foreclosure sale; the person forcibly put out or kept out; the person with whom, as owner, the agreement was made, or the owner of the property occupied under an agreement, to cultivate the property upon shares, or for a share of the crops; or the person lawfully entitled to the possession of the property intruded into or squatted upon, as the case requires; or by the legal representative, agent, or assignee of the landlord, purchaser, or other person, so entitled to apply. The applicant must present to the judge or justice, a written petition verified in like manner as a verified complaint in an action brought in the supreme court; describing the premises of which the possession is claimed, and the interest therein of the petitioner, or the person whom he represents; stating the facts, which, according to the provisions of this title, authorize the application by the petitioner, and the removal of the person in possession; naming, or otherwise intelligibly designating, the person or persons against whom the special proceeding is instituted, and, if there are two or more such persons, and some are undertenants or assigns, specifying who are principals or tenants, and who are undertenants or assigns; and praying for a final order to remove him or them accordingly. 5N.Y. State 22 Misc. 228. § 2236. Where the person to be removed is a tenant at 139 N. Y. 5 will, or at sufferance, the petition must state the facts, showing that the tenancy has been terminated, by giving notice, as required by law. Where the application is made in a case specified in section two thousand two hundred and thirty-two of this act, the petition must state that a notice, in behalf of the applicant, requiring all persons occupying the property to quit the same, by a day therein specified, has been either served personally upon the person or persons to be removed, or affixed conspicuously upon the property, at least ten days before the day specified therein. § 2237. An owner or tenant of real property, in the immediate neighborhood of other demised real property, which is used or occupied as a bawdy-house, or house of assignation for lewd persons, may serve personally upon the See note to § 3215. 28 Hun, 284. owner or landlord of the premises, so used or occupied, or upon his agent, a written notice, requiring the owner o landlord to make an application for the removal of the person so using or occupying the same. If the owner or land lord, or his agent, does not make such an application within five days thereafter; or, having made it, does not in good faith diligently prosecute it; the person giving the notice may make such an application, stating in his petition, the facts so entitling him to make it. Such an application has the same effect, except as otherwise expressly prescribed in this title, as if the applicant was the landlord or lessor of the premises. 2238. The judge or justice, to whom a petition is pre13 Daly 275 sented, as prescribed in either of the foregoing sections of this title, must thereupon issue a precept, directed to the person or persons designated in the petition as being in possession of the property, and requiring him or them forthwith to remove from the property, describing it, or to show cause, before him, at a time and place specified in the precept, why possession of the property should not be delivered to the petitioner, or, in the case specified in the last section, to the owner or landlord. The precept must be returnable, not less than three nor more than five days after it is issued; except that, where the proceeding is taken, upon the ground that a tenant continues in possession of demised premises, after the expiration of his term without the permission of his landlord, and the application is made on the day of the expiration of the lease, or on the next day thereafter, the precept may, in the discretion of the judge or justice, be made returnable on the day on which it is issued, at any time after twelve o'clock, noon, and before six o'clock in the afternoon. $1359, Consol. Act. 18 Daly, 275. § 2239. In the city of New York, where the application is made to a district court,* the petition must be filed with, and the precept must be issued by, the clerk of the court; and the precept must be made returnable before the court, at the place designated, pursuant to law, for holding the court; and all subsequent proceedings in the cause, must be had at that place, except as otherwise prescribed in section two thousand two hundred and forty-six of this act. If, upon the return of the precept or upon an adjourned day the justice is unable by reason of absence from the court room or sickness, to hear the cause, or it is shown by affidavit that he is for any reason disqualified to sit in the cause, or is a necessary and material witness for either party, a justice of any other district court of the city may act in his place at the same court room. § 2240. The precept must be served as follows: 1. By delivering, to the person to whom it is directed, or, if it is directed to a corporation, to an officer of the cor poration, upon whom a summons, issued out of the supreme court, in an action against the corporation, might be served, *See note to § 3215. a copy of the precept, and at the same time showing him the original. 2. If the person, to whom the precept is directed, resides in the city or town in which the property is situated, but is absent from his dwelling-house, service may be made by delivering a copy thereof, at his dwelling-house, to a person of suitable age and discretion, who resides there; or, if no such person can, with reasonable diligence, be found there, upon whom to make service, then by delivering a copy of the precept, at the property sought to be recovered, either to some person of suitable age and discretion residing there, or if no such person can be found there, to any person of suitable age and discretion employed there. 3. Where service cannot, with reasonable diligence, be made, as prescribed in either of the foregoing subdivisions of this section, by affixing a copy of the precept upon a conspicuous part of the property. If the precept is returnable on the day on which it is issued, it must be served at least two hours before the hour at which it is returnable; in every other case, it must be served at least two days before the day on which it is returnable. 50. § 2241. A person, to whom a copy of a precept, directed 13 Civ. Pre to another, is delivered, as prescribed in this title, must without any avoidable delay, deliver it to the person to whom it is directed, if he can be found within the same town or city; or, if he cannot be so found, to his agent therein; and if neither can be so found, after the exercise of reasonable diligence, before the time when the precept is returnable, to the judge or justice who issued the same, at the time of the return thereof, with a written statement indorsed thereupon, that he has been unable, after the exercise of reasonable diligence, to find the person to whom the precept is directed, or his agent, within the town or city. A person, who wilfully violates any provision of this section, is guilty of a misdemeanor; and, if he is a tenant upon the property, forfeits to his landlord the value of three years' rent of the premises occupied by him. A copy of this section must be indorsed upon each copy of a precept, served otherwise than personally upon the person to whom it is directed. 2242. Where the case is within section two thousand two hundred and thirty-seven of this act, the precept must be directed to and served upon the owner or landlord, or his agent, and also upon the tenant or occupant of the property. Either or both of them may, upon the return day, appear and show cause why the tenant or occupant should not be removed from the property. 2243. At the time when the precept is returnable, the petitioner must, unless the adverse party appears, make due proof of the service thereof, showing the time, and the place and manner of service; and, unless service was made per sonally upon the adverse party, or by affixing a copy of the $1360, ConBol. Act. precept, the name of the person to whom a copy of the precept was delivered, if his name can be ascertained with reasonable diligence. Where service is made by a sheriff, constable or marshal, it may be proved by his certificate. stating the facts. $ 2244. [Am d 1882, 1893.] At the time when the precept is returnable without waiting as prescribed in an action 30 Abb N.C. before a justice of the peace, or in a district court in the City of New York,* the person to whom it is directed or his landlord, or any person in possession or claiming possession of the premises, or a part thereof, may file with the judge or justice who issued the precept, or with the clerk of the court, a written answer, verified in like manner as a verified answer in an action in the supreme court, denying generally the allegations, or specifically any material allegation of the petition, or setting forth a statement of any new matter constituting a legal or equitable defense, or counter-claim. Such defense or counter-claim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action. 73 Hun, 409. $1361, Consol. Act. §§ 1366,1367, Consol. Act. 29 Hun, 587. § 2245. Where the application is founded upon an allegation of forcible entry or forcible holding out, the petitioner must allege and prove that he was peaceably in actual possession of the property, at the time of a forcible entry, or in constructive possession, at the time of a forcible holding out; and the adverse party must either deny the forcible entry, or the forcible holding out, or allege, in his defence, that he, or his ancestor, or those whose interest he claims, had been in quiet possession of the property, for three years together next before the alleged forcible entry or detainer; and that his interest is not ended or deter mined, at the time of the trial. $2246. In a district court of the city of New York," at the time of joining issue, the justice sitting in the cause may, in his discretion, upon motion of either party, or, if no justice is present, the clerk may, by consent of both parties, make an order transferring the cause for trial, to a district court of an adjoining district, which thereupon has the same jurisdiction and power, at its own court house, as if the property was situated within its district. § 2247. [Am'd 1881, 1882.] The issues joined by the petition and answer must be tried by the judge or justice, unless either party to such proceedings shall at the time designated in such precept for showing cause, demand a jury, and at the time of such demand pay to such judge or justice the necessary costs and expenses of obtaining such jury. If a jury be demanded and such costs and expenses be paid the judge or justice with whom such petition shall be filed shall nominate twelve reputable persons qualified 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, commanding him to summon the persons so nominated to appear before such judge or justice at such time or place as he shall therein appoint, not more than three days from the date thereof, for the nurnose of trying the sald *See note to § 3215. §§ 2248-2250 SUMMARY PROCEEDINGS. 177 matters in difference. Six of the persons so summoned shall be drawn in like manner as jurors in justices' courts and shall be sworn by such judge or justice well and truly to hear, try and determine the matters in difference between the parties. 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 deputies, or a constable, or by some proper person appointed by the judge or justice for that purpose, who shall be sworn to keep such jury as is usual in like cases of courts of record. If such jury cannot agree after being kept together for such time as such judge or justice shall deem reasonable, he may discharge them and nominate a new jury and issue a new precept in manner aforesaid. § 2248. At the time when issue is joined, the judge or justice may, in his discretion, at the request of either party, and upon proof to his satisfaction, by affidavit or orally, that an adjournment is necessary, to enable the applicant to procure his necessary witnesses, or by consent of all the parties who appear, adjourn the trial of the issue, but not more than ten days; except by consent of all parties. 2249. If sufficient cause is not shown upon the re- 8 Misc. 353; turn of the precept; or if the verdict of the jury, or the 9 Id. 46. decision of the judge or justice, upon a trial without a jury, is in favor of the petitioner; the judge or justice must make a final order, awarding to the petitioner the delivery of the possession of the property except that, where the case is within section two thousand two hundred and thirty-seven of this act, the final order must direct the removal of the occupant. In either case, the final order must award to the petitioner the costs of the special proceeding. If the verdict or decision is in favor of the person answering, the judge or justice must make a final order accordingly, and awarding to him the costs of the special proceeding. § 2250. [Am'd 1882.] Costs, when allowed, and the fees 5 Civ. Pro of officers, except where a fee is specially given in chapter 141. twenty-one of this act must be at the rate allowed by law in an action in a justice's court, and are limited in like manner; unless the application is founded upon an allegation of forcible entry or forcible holding out; in which case, the judge or justice may award to the successful party a fixed sum as costs, not exceeding fifty dollars in addition to his disbursements. If the final order is made by a county judge, or a special county judge, or by a mayor or recorder, an execution to collect the costs may be issued thereupon as if it was a judgment of a justice of the peace of the same city or county; and for that purpose the officer takes the place of a justice of the peace. In every other case an execution may be issued to collect the costs awarded thereby as if the final order was a judgment, |