taking to the petitioner, immediately after his approval · thereof. New. § 2256. Redemption by lessee. 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 p payment or 'tender, with interest thereupon, and the costs and charges incurred by the petitioner. Thereupon the person making the payment or tender, sha! 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 L. 1842, ch. 240, 1 (4 Edm. 661), amended. Crawford v. Waters, 46 How. Pr. 210; Pursell v. N. Y. Life Ins. & Trust Co., 10 J. & Sp. 383; Bokee v. Hammersley, 16 How. 461; Crawford v. Waters, 46 id. 210. §2257. Id.; by creditor of lessee. In a case specified in the last section, a judgment creditor of the lessee, whose judgment was docketed 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, specifying his interest and the sum due to him; describing the premises; and stating that it is his intention to redeem ner ot as prescribed in this section. If a redemption made by the lessee, his executor, administrator ours. signee, within a year after the execution of the way int rde کہ 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 judg ment 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. L. 1842, ch. 240, 1 (4 Edm. 461). Stuyvesant v. Gressler, 12 Abb. N. S. 6; People v. Fowler, 8 Alb. L. J. 207. § 2258. The last two sections qualified.—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. New. § 2259. Order to be made thereupon; liability of person redeeming. The person redeeming, as prescrto tl in the last three sections, or the owner of the prpon ty so redeemed, may present to the judge or justice thao issued the warrant, or to his successor in office, a pece won, duly verified, setting forth the facts of the it to the last sectio 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. New. § 2260. Appeal.-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. Substituted for 47, R. S., amended: L. 1868, ch. 828 (7 Edm. 357). 52; L. 1849, ch. 193 (2 Edm. 534). Williams v. Bigelow, 11 How. 83; McIntire v. Hernandez, 39 id. 121; s. c., 7 Abb. N. S. 214; Freeman v Ogden, 17 Abb. 326, note; s. c., 40 N. Y. 105; People v. Willis, 5 Abb. 205; Romaine v. Kingsheimer, 2 Hilt. 519; Hammond v. Carpenter, 20 How. 43; Deuel v. Rust, 24 Barb. 438; see Briggs v. Swales, 29 How. 201; s. c., 19 Abb. 323; People v. Boardman, 4 Keyes, 59; Matter of Com missioners of Central Park, 50 N. Y. 493, 498; Matter of Long Island R.. R. Co., 45 id. 364, 368; Starkweather v. Seeley, 45 Barb. 164. § 2261. Effect of appeal limited in certain cases.— The issuing or execution of the warrant cannot be stayed by such an appeal, or by the giving of an undertaking thereupon, otherwise than as prescribed in the next section. An appeal cannot be taken to the court of appeals, from a final determination of the general term of the supreme court or of a superior city court, upon such an appeal, unless the latter court, by an order, made at the general term where the final order is made, or the next general term thereafter, allows it to be taken. R. S., 47, amended by L. 1868, ch. 827 (7 Edm. 357); also, 52, R. S. L. 1849, ch. 193 (2 Edm. 534). People v. Willis, 5 Abb. Pr. 205; People v. Bigelow, 11 How. Pr. 83; Davis v. Hudson, 5 Abb. Pr. 61; Carpenter v. Greene, 6 N. Y. Sup. Ct. (T. & C.) 550; People v. Perry, 16 Hun, 461; Launitz v. Dixon, 5 Sandf. 249; Sage v. Harpending, 49 How. 166. § 2262. Warrant; how stayed on appeal.—Where an appeal is taken from a final order, awarding delivery of possession to the petitioner, which establishes that a lessee or tenant holds over, after a default in the payment of rent, the issuing and execution of the warrant may, except in the city and county of New-York, be stayed by the order of the county judge. Such an order can be made only upon the appellant's giving the security required to perfect the appeal, and stay the execution of the order appealed from, and also an undertaking to the petitioner, in a sum, and with sureties, approved by the county judge, to the effect, that if, upon the appeal, a final determination is rendered against the appellant, he will pay all rent accruing or to accrue upon the premises, or, if there is no lease thereof, the value of the use and occupation of the premises, subsequent to the institution of the special proceeding. R. S., 28 47 and 52; L. 1849, ch. 193 (2 Edm. 534). Sage v. Harpending, 49 Barb. 166. 2263. Appellate court may award restitution} action for damages. If the final order is reversed upon the appeal, the appellate court may award restitution to the party injured, with costs; and it may make any order, or issue any other mandate, necessary to carry its determination into effect. The person dispos sessed may also maintain an action, to recover the damages which he has sustained by the dispossession. Secs. 48 and 49. Chretien v. Doney, 1 N. Y. 419. People v. Matthews, 38 id. 451; s. c., 43 Barb. 168, Wolcott v. Schenk, 16 How. Pr. 449: People v. Hamilton, 15 Abb. Pr. 328; People v. McCaffrey, 42 Barb. 530; see Williams v. Bigelow, 11 How. 83; Matter of Shotwell, 10 Johns. 304; People v. Shaw, 1 Caines, 125; Hayden v. Florence Sewing Machine Co.. 64 N. Y. 221. § 2264. Application of this title; effect of final order. 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 per son 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. Id., 50. Brown v. Mayor, 66 N. Y. 385; Jarvis v. Driggs, 69 id. 143; Evans v. Post, 5 Hun, 338. § 2265. How proceedings under this title to be stayed. 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 thereupon, 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 proceedings, 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. R. S., 47. James v. Stuyvesant, 3 Sandf. 665, note; Capet v. Parker, id. 662; Cure v. Crawford, 5 How. Pr. 293; Wadsworth v. Lyon, id. 463; Marry v. James, 2 Daly, 437; 8. C., 37 How. Pr. 52; Bean v. Pettengill, 7 Robt. 7; 8. c., 2 Abb. N. S. 58; Forrester v. Wilson, 1 Duer, 624; Vallotov. Seignett, 2 Abb. Pr. 121; Graham v. James, 7 Robt. 468; Griffeth v. Brown, 3 id. 628; s. c., 28 How. Pr. 4; 49 N. Y. 227; Arm strong v. Cummings, 20 Hun, 313. TITLE III. Proceedings to punish a contempt of court, other than a criminal contempt. Ec. 2266. Cases to which this title applies. 2267. When punishment may be summary. 2268, When warrant to commit may issue without notice. |