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moval of the person so using or occupying the same. If the owner or landlord, 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 ap plication, stating in his petition, the fact 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.
Secs. 56 and 61, R. S.; L. 1868, ch. 764 (7 Edm. 335)
§ 2238. Precept.-The judge or justice, to whom a petition is presented, as prescribed in either of the foregoing sections of this title, must thereupon issue 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 peti tioner, 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 after
Id., 30, amended; L. 1851, ch. 460; L. 1868, ch. 828, 1 (7 Edm. 355). Hill v. Stocking, 6 Hill, 314; Cunningham v. Goelet, 4 Denio, 71; Sims v. Humphrey, id. 185; Deuel v. Rust, 24 Barb. 438; Russell v. Ostrander, 30 How, 93; People ex rel. v. Andrews, 52 N. Y. 445.
§2239. Id., in New York city. 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 2246 of this act. If, upon the return of the precept, or upon an adjourned day, the justice is unable, by reason of ab sence 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.
L. 1863, ch. 189 (6 Edm. 86). Code of Proc., 866; L. 1876, ch. 356, §1; L1877, ch. 187, 1. People v. Kelly, 20 Hun, 549; 3208, post.
The precept must be
§ 2240. Id.; how served.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 corporation, upon whom a summons, issued out of the supreme court, in an action against the corporation, might be served, 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 situa ted, but is absent from his dwelling-house, service may be made by delivering a copy thereof at his dwellinghouse, 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 prop. erty 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 subdi visions 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.
Section 32, R. S.; L. 1857, ch. 684, and L. 1868, ch. 828 (7 Edm. 346). Brown v. Mayor, etc., N. Y. 66 N. Y. 385; Ex parte Glen, 1 How. Pr. 213; Cameron v. McDonald, 1 Hill, 512; People v. Boardman, 4 Keyes, 59; 8. C.. 3 Abb. Dec. 483; People v. Bainbridge, 7 Hun, 81; People ex rel, .
Marvin Safe Co., 5 id. 218; People ex rel. v. De Camp, 12 id. 378; Hill v. Stocking, 6 Hill, 314; Sims v. Humphrey, 4 Denio, 185.
§ 2241. Duty of person to whom copy of precept is delivered.- A person, to whom a copy of a precept, di rected to another, is delivered, as prescribed in this title, must, without any avoidable delay, deliver it to the per son 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 is sued 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 vio lates any provision of this section, is guilty of a misde. meanor; 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 other. wise than personally upon the person to whom it is di rected.
L. 1868, ch. 828, 3 (7 Edm. 356); and 1 R. S. 748, 27 (1 Edm. 699).
2242. When precept to be served on landlord of bawdy-house, etc.- Where the case is within section 2237 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.
Parts of 2263 and 64; L. 1868, ch. 764 (7 Edm. 336).
$2243. Proof of service of precept.-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 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.
Section 33, R. S., also 32, amended; L. 1868, ch. 828 (7 Edm.) 336. Robinson v. McManus, 4 Lans. 380; People ex rel. Crawford v. De Camp, 12 Hun, 378; People v. Boardman, 4 Keyes, 59; People v. Matthews, 43 Barb. 169; s. c., 38 N. Y. 451; Cameron v. McDonald, 1 Hill, 512; Matter of Glen, 1 How. 213; Beach v. Bainbridge, 7 Hun, 81; People v. Marvin Safe Co., 5 id. 218; People v. Lamb, 10 id. 348; People v. Matthews, 43 Barb. 168; 38 N. Y. 451; Campbell v. Mallory, 22 How. 183.
$2244. [Amended, 1893.] Answer.-At the time when the precept is returnable without waiting as prescribed in an action 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 counterclaim. Such defense or counterclaim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action.
In effect May 13, 1893; Laws 1893, ch. 705.
§ 2245. Issues upon forcible entry or detainer. 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 determined, at the time of the trial.
Id.. 22 6 and 11, amended. Carter v. Newbold, 7 How. 166; People v. Van Nostrand, 9 Wend. 50; People v. Field, 52 Barb. 198.
§ 2246. In N. Y. district court, cause may be trans ferred to another court for trial.-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 situate within its district
[L. 1877, ch. 187, 2, amended.
2247. [Amended, 1881 and 1882.] Trial. 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 sum mon 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 purpose of trying the said 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 jus tice shall deem reasonable, he may discharge them and nominate a new jury, and issue a new precept in manner aforesaid.
R. S., 34. Brown, etc. v. Mayor of N. Y., 66 N. Y. 385; Benjamin v. Benjamin, 5id. 383; People v. Hovey, 4 Lans. 86; Farrington v. Morgan 20 Wend. 207; Roach v. Cosine, 9 id. 227; L. 1862, ch. 368; People v. Ham ilton, 39 N. Y. 107; s. c., 15 Abb. Pr. 328; People v. Teed, 48 Barb. 424; 8. C., 33 How. 238; Roberts v. Cone, 3 Alb. L. J. 151; People v. Albright, 23 How. 306; s. c., 14 Abb. 305; People v. Kelsey, id. 372; s. c., 38 Barb. 269; People v. Howlett, 76 N. Y. 574; People v. Cushman, 1 Hun, 73% People v. Fields, 1 Lans. 222; Porter v. People, 7 How. 441.
§ 2248. Adjournment.- 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.
Id., 41. Brown v. New York, 66 N. Y. 385; Baller v. New York, 8 J. & Sp. 563.
2249. Final order upon trial.- If sufficient cause