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3. One or more of his next of kin, or, where he owns real property, of his heirs presumptive.

4. A relative whom he is bound to support.

5. Any relative or other person, in behalf of his infant child or children. § 2221. Creditor must relinquish security. A creditor of the prisoner, who has a judgment, mortgage, or other security, specified in section 2158 of this act, cannot apply for such an appointment, with respect to the debt so secured, unless he appends to or includes in his petition, the declaration, required by that section from a consenting creditor; which declaration has the same effect as the declaration of a consenting creditor, as therein specified.

$ 2222. Contents of petition. The petition must be in writing, and verified by the affidavit of the petitioner, to the effect, that the matters of fact therein stated are true, to the best of the petitioner's knowledge and belief. It must set forth the facts, showing that the applicant is entitled to make the application, and that the application is made to the proper court; the name and residence of each person, who is entitled to make such an application, as prescribed in the last section but one, except the fifth subdivision thereof; and a brief description of the property, real and personal of the prisoner, and the value thereof. If the applicant is a creditor, and not a resident of the State, he must annex to his petition, the papers specified in section 2161 of this act. If any of the facts, herein required to be set forth, cannot be ascertained by the petitioner, after the exercise of due diligence, that fact must be stated; and the court may, in its discretion, issue a subpoena, requiring any person to attend and testify, respecting any matter, which, in its opinion, ought to be more fully and certainly set forth.

The peti

§ 2223. Copy of sentence and affidavit to be presented. tion must be accompanied with a copy of the sentence of conviction of the prisoner, duly certified by the clerk of the court by which he was sentenced, under the seal thereof; together with an affidavit of the applicant, stating that the person so convicted is actually imprisoned thereunder.

§ 2224. Proceedings upon presentation of the papers. Upon the presentation of the papers, the court may, in its discretion, make an order, either appointing one or more fit persons trustees of the property of the prisoner; or requiring all creditors of the prisoner, and all persons interested in his estate, to show cause, at a time and place specified therein, why such an appointment should not be made. In the latter case, the order must direct the manner of service thereof, by publication, or otherwise.

$2225. Id.; on return of order to show cause. Upon the return of an order to show cause, made as prescribed in the last section, proof of the service thereof, as required thereby, must first be made; whereupon the court must hear the allegations and proofs of the creditors, and other persons interested in the estate, who appear. Where the prisoner is indebted to any person, the court must appoint one or more trustees, unless the persons interested in the prisoner's property, pay the debt, or give such security, as the court prescribes, for the payment thereof, either absolutely or contingently upon a recovery in an action; in which case, or where the prisoner is not indebted, the court may grant or deny the prayer of the petition, as justice requires.

§ 2226. Effect of order appointing trustee. The entry of the order, appointing one or more trustees, and the filing of the papers upon which it

was granted, vest in the trustee or trustees all the right, title and interest of the prisoner, in and to any property, real or personal. Where the prisoner owns real property, an exemplified copy of the order must be recorded, in the proper office for recording deeds, in each county where the property is situated.

§ 2227. Removal of trustee; appointment of new trustee. Upon the application of any person, entitled to apply for an order, appointing trustees of the prisoner's property, and upon such a notice as the court prescribes, to the petitioner, and to such other persons interested, as the court thinks proper to designate, the court, by which the order was granted, may, in its discretion, remove any trustee, and appoint another in his place; or may appoint one or more additional trustees. The new trustee or trustees, so appointed, have the same power and authority, are vested with the same right, title, and interest, and are subject to the same duties and liabilities, as if he or they had been appointed by the original order.

§ 2228. Prisoner's property; how applied. After deducting their commissions and expenses, allowed by law, and paying the prisoner's debts, the trustees may, from time to time, under the direction of the court by which they were appointed, apply the surplus of any money in their hands, to the support of the prisoner's wife and children, and of such other relatives as he is bound to support, and to the education of his children.

§ 2229. Id.; to be delivered to him on his discharge. When the prisoner dies, or is lawfully discharged from imprisonment, the trustee or trustees must deliver over to him, or his legal representatives, all his property, remaining in their hands, after deducting therefrom their lawful expenses and commissions.

§ 2230. Application of this article to persons heretofore sentenced. This article applies to a prisoner who has been sentenced before this chapter takes effect, and to his property; except where one or more trustees of his property have been theretofore appointed, by proceedings taken in pursu ance of a statute then in force.

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Summary proceedings to recover the possession of real property.

LECTION 2231. When tenant may be removed.

2232. Person holding over land sold, etc., may be removed.

2233. Id.; in case of forcible entry or detainer.

2234. Application; to whom made.

2235. Petition by person entitled to possession.

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2239. Id. ; in New York city.

2240. Id.; how served.

2241. Duty of person to whom copy of precept is delivered.

2242. When precept to be served on landlord of bawdy-house, etc.

2243. Proct of service of precept.

2244. Answer.

2245. Issues upon forcible entry or detainer.

2216. In New York district court, cause may be transferred to another court for

trial.

SECTION 2247. Trial.

2248. Adjournment.

2249. Final order upon trial.

2.50. Amount of costs; how collected.

2251. Warrant to dispossess defendant.

2252. Execution of warrant.

2253. When warrant cancels lease; exception.

2254. Warrant; when and how stayed.

2255. Undertaking; how disposed of.

2256. Redemption by lessee.

2257. Id.; by creditor of lessee.

2258. The last two sections qualified.

2259. Order to be made thereupon; liability c person redeeming.

2260. Appeal.

2261. Effect of appeal limited in certain cases.

2262. Warrant; how stayed appeal.

2263. Appellate court may award restitution; action for damages.

2261. Application of this title; effect of final order.

2265. How proceedings under this title to be stayed.

§2231. When tenant may be removed. In either of the following cases, a tenant or lessee at will, or at sufferance, or for part of a year, or for one or more years, of real property, including a specific or undivided portion of a house, or other dwelling, and his assigns, undertenants, or legal representatives, may be removed therefrom, as prescribed in this title:

1. When he holds over and continues in possession of the demised premises, or any portion thereof, after the expiration of his term, without the permission of the landlord; including, elsewhere than in the city of New York and Brooklyn, a case where the person to be removed became the occupant of the premises as a servant or employe and the relation of master and servant or employer and employe has been lawfully terminated or the time fixed for such occupancy by the agreement between the parties, has expired; but if by such agreement the servant was to be permitted to occupy such premises for a period beyond the term of employment such removal shall not be had under this subdivision unless such period so permitted for occupancy has expired, or the relation of master and servant or employer and employe was lawfully terminated before the expiration of such term of employment; but nothing in this subdivision contained shall be construed as preventing the removal of such occupant in any other lawful manner. [AM'D BY CH. 333 of 1894. To take effect September 1, 1894.]

2. Where he holds over, without the like permission, after a default in the payment of rent, pursuant to the agreement under which the demised premises are held, and a demand of the rent has been made, or at least three days' notice in writing, requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served, in behalf of the person entitled to the rent, upon the person owing it, as prescribed in this title for the service of a precept.

3. Where in any city in this state he holds over and continues in possession of the demised premises, or any portion thereof, after default in the payment, for sixty days after the same shall be payable, of any taxes or assessments levied on such demised premises which he has agreed in writing to pay pursuant to the agreement under which the demised premises are held, and a demand for the payment of such taxes or assessments has been made, or at least three days' notice in writing, requiring, in the alternative, the payment thereof and of any interest and penalty thereon, or the possession of the premises, has been served, in behalf of the landlord, upon the lessee, as prescribed in this title for the service of a precept. An acceptance of any rent by the lessor or his legal representatives shall not be construed as a waiver of the agreement of the lessee to pay taxes or assessments, so as to preclude the lessor from the benefits of this chapter.

4. Where he being in possession under a lease for a term of three years or less, has, during the term, taken the benefit of an insolvent act, or has been adjudicated a bankrupt, under a bankrupt law of the United States.

5. Where the demised premises, or any part thereof, are used or occupied as a bawdy-house, or house of assignation for lewd persons, or for any illegal trade or manufacture, or other illegal business. [AM'D CH. 13 OF 1885.] $2232. Persons holding over land sold, etc., may be removed. In either of the following cases, a person, who holds over and continues in possession of real property, after notice to quit the same has been given, as prescribed in section 2236 of this act, and his assigns, tenants, or legal representatives, may he removed therefrom, as prescribed in this title:

1. Where the property has been sold by virtue of an execution again-t him, or a person under whom he claims, and a title under the sale has been perfected.

2. Where the property has been duly sold, upon the foreclosure, by proceedings taken as prescribed in title ninth of this chapter, of a mortgage executed by him, or a person under whom he claims, and the title under the foreclosure has been duly perfected.

3. Where he occupies or holds the property, under an agreement with the owner to occupy and cultivate it upon shares, or for a share of the crops, and the time, fixed in the agreement for his occupancy, has expired.

4. Where he, or the person to whom he has succeeded, has intruded into, or squatted upon, any real property, without the permission of the person entitled to the possession thereof, and the occupancy thus commenced has continued without permission from the latter; or, after permission given by him has been revoked, and notice of the revocation given to the person or persons to be removed. [AM'D BY CH, 232 OF 1894. To take effect September 1, 1894.]

§ 2233. Id.; in case of forcible entry or detainer. An entry shall not be made into real property, but in a case where the entry is given by law; and, in such a case, only in a peaceable manner, not with strong hand, nor with multitude of people. A person who makes a forcible entry forbidden by this section, or who, having peaceably entered upon real property, holds the possession thereof by force, and his assigns, undertenants, and legal representatives, may be removed therefrom; as prescribed in this title.

§ 2234. Application; to whom made. Application for removal of a person from real property, as prescribed in this title, may be made to the county judge or special county judge of the county, or a justice of the peace of the city or town, or the mayor or recorder of the city, wherein the real property, or a portion thereof, is situated. Application may also be made, if the property, or a portion thereof, be situated in the city of New York, to a judge of the city court of the city of New York or the district 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 justices' court of that city; if in the city of Yonkers, to the city judge of that city; if in the cities 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. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.]

§ 2235. Petition by person entitled to possession. 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.

§ 2236. Notice to be given in certain cases. Where the person to be removed is a tenant at will, or at sufferance, the petition must state the acts, 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 2232 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. Petition by neighbor of bawdy-house, etc. 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 owner or landlord of the premises, so used or occupied, or upon his agent, a written notice, requiring the owner or landlord to make an application for the removal 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 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. 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 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.

§ 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 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. Id.; how served. 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 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 situated, but is absent from his dwellinghouse, service may be made by delivering a copy thereof, at his dwelling

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