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.

L. 1877, ch. 187, 2, amended.

§ 2247. Trial.— The issues, joined by the petition and answer, must be tried by the judge or justice; unless a party, or one of two or more parties, answering as prescribed in the last two sections, files, with the answer, a written demand that the issues so joined be tried by a jury; and at the same time pays to the judge or justice, or to the clerk, the fees of the jurors, and of the officer for notifying them. In that case, the issue must be tried by a jury, in like manner as an issue of fact joined in an action, in the court of which the judge or justice, who issued the precept, is the presiding officer; and all the provisions of this act, relating to procuring and empanelling a jury; the trial of an issue of fact by a jury; and the proceedings upon such a trial, including those relating to the mode of compelling the attendance of a witness, and to the punishment of a defaulting witness or juror, in that court, apply to the trial of an issue so joined, except as otherwise expressly prescribed in this title.

R. S.. 34. Brown, etc. r. Mayor of N. Y., 66 N. Y. 385; Benjamin v. Benjamin, 5id. 383; People v. Hovey, 4 Lans. 86; Farrington r. Morgan, 20 Wend. 207; Roach v. Cosine, 9 id. 227; L. 1862, ch. 368; People v. Hamilton, 39 N. Y. 107; s. c., 15 Abb. Pr. 328; People v. Teed, 48 Barb. 424; 8. C.. 33 How. 233; 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

is not shown upon the return of the precept; or if the verdict of the jury, or the 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 2237 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.

R. S., 33, 39 and 51; see L. 1849, ch. 193 (2 Edm. 533). Brown v. Mayor, etc., of N. Y., 66 N. Y. 385; Jarvis v. Briggs, 69 id. 143; Terrett v. Cowenhoven, 11 Hun, 320; Reader v. Sayre, 70 N. Y. 180; Starkweather v. Seeley, 45 Barb. 164: People v. Willis, 4 Abb. 205; Higenbotham v. Lowenbein, 25 How. 221; s. c., 3 Rob. 22; Hinsdale r. White, 6 II, 507; Whitney v. Meyers, 1 Duer, 266; Academy of Music e. Hackett, 2 Hilt. 217; McKeon v. Whitney, 3 Denio, 452; Crane *. Hardman, 4 E. D. Smith, 335; Baller v. Mayor, 40 N. Y. Supr. 523; People v. Kelly, 20 Hun, 549.

2250. Amount of costs; how collected.- Costs, when allowed, and the fees of officers, except where a fee is specially given in chapter 21 of this act, must be at the rate allowed by law in an action in a justice's court, or, in the city of New-York, in a district 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. The final order awarding costs may be docketed, and an execution may be issued to collect the costs awarded thereby, in like manner as if the final order was a judgment rendered in the court, of which the judge or justice is the presiding officer.

Id., 12, 13, 22, and part of 351, amended and consolidated; see Elverson . Vanderpoel, 69 N. Y. 610; Crane v. Hardman, 4 E. D. Smith, 339: People r. Townsend, 6 How, 178: Patridge v. Ford, 5 id. 21; Van Hovenburgh v. Case, 4 Hill, 541; Launitz . Dixon, 5 Sandf. 249; see Springsteen v. Powers, 3 Rob. 483, 489; Chretien v. Doney, 1 N. Y. 419.

2251. Warrant to dispossess defendant.- 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 or town, in which the property, or a portion thereof, is situated, describing the property, and commanding the officer to remove all persons therefrom and also, except where the case is within section 2237 of this act, to put the petitioner into the full possession thereof.

Id., 13, 33 and 39; see L. 1857, ch. 684; also, 58, 59, 63, 64, and L. 1868, ch. 764 (7 Edm. 335). Croft, 'Adm'x, v. King, Exr., N. Y. C. P., 19 Alb. L. J. 441; Pursell v. N. Y. L. Ins. & Trust Co., 42 N. Y. Super. Ct. (J. & S.) 383; Starkweather v. Seeley, 45 Barb. 164; People v. Willis, 5 Abb. 205; Higenbotham v. Lowenbien, 28 How. 221; s. c., 3 Rob. 22.

2252. Execution of warrant - 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.

Id., 40.

§2253. When warrant cancels lease exception.— The issuing of a warrant for the removal of a tenant from demised premises, cancels the agreement for the use 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.

Id., 43, also. 260; L. 1868, ch. 764 (7 Edm. 336). Hinsdale v. White, 6 Hill, 507; Parsell v. N. Y. L. Ins. Co., 42 N. Y. 383; McKeon v. Whitney, 3 Den. 452; Crane v. Hardman, 4 E. D. Smith, 339; Cushingham v. Phillips, 1 id. 416; Davison v. Donadi, 2 id. 121; Whitney v. Meyers, 1 Duer, 266; Academy of Music v. Hackett, 2 Hilt. 217; Stuyvesant v. Greissler, 12 Abb. N. S. 6; Johnson v. Oppenheim, 55 N. Y. 230.

2254. Warrant; when and how stayed.-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, he may effect a stay, by payment of the rent due, and the costs of the special proceeding; or by deliver

ing 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 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 de livering 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.

Id., 44, amended. L. 1857, ch. 684, and 2 45 and 46: Church v. Simmons, 19 Hun, 220; Schemerhorn v. Carter, 8 W. Dig. 33.

2255. Undertaking; how disposed of.--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 specified in the last section, the judge or justice must deliver the under

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 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

one.

L. 1842, ch. 210, 31 (4 Edm. 661), amended. Crawford v. Waters, 46 How. Pr. 210; Pursell v. N. Y. Life Ins. & Trust Co., 10 J. & Sp 383; Bokee r. 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 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,