and expenses thereof. Where security is so given, the attorneygeneral is entitled to compensation for his services, to be paid by the relator, in like manner as the attorney and counsel for a private person. [Co. Proc., § 434. See § 3242, post.] PART IL people, municipal corpora tion, required to give security. 1990. Each provision of this act, requiring a party to give When security, for the purpose of procuring an order of arrest, an injunc- opp tion order, or a warrant of attachment, or as a condition of obtain- etc., not ing any other relief, or taking any proceeding; or allowing the court, or a judge, to require such security to be given; is to be construed, as excluding an action brought by the people of the State, or by a domestic municipal corporation; or by a public officer, in behalf of the people, or of such a corporation; except where the security, to be given in such an action, is specially regulated by the provision in question. TITLE II. Special proceedings instituted by State writ. ARTICLE SECOND, THE WRIT OF HABEAS CORPUS, TO BRING UP A PERSON TO TESTIFY. PRELIMINARY NOTE.-The following sections of this article are inserted herein, because they refer to and affect proceedings in justices' courts, although no proceeding can be taken under them in such courts. corpus to testify; when § 2008. A court of record, other than a justices' court of a city, Habeas or a judge of such a court, or a justice of the supreme court, has power, upon the application of a party to an action or special ceeding, civil or criminal, pending therein, to issue a writ of habeas pro corpus, for the purpose of bringing before the court, a prisoner, detained in a jail or prison within the State, to testify as a witness in the action or special proceeding, in behalf of the applicant. [2 R. S., 559, Part 3, ch. 9, tit. 1, § 1 (2 Edm.; 580).] allowed by court or judge. JUSTICE'S Id.; in suit etc. § 2010. Such a writ may also be issued by a justice of the supreme court, upon the application of a party to an action, pendthe peace, ing before a justice of the peace, or in a justices' court of a city, or a district court of the city of New-York, to bring before the justice or court, to be examined as a witness, a prisoner confined in the jail of the county where the action is to be tried, or an adjoining county. In a case specified in this section, the writ may also be issued by a judge of a superior city court, a county judge, or a special county judge, residing within the county where the justice resides, or the court is located, or the prisoner is confined, as the case may be. Writ not to issue to bring up prisoner under death sentence; nor for felony, except on application of people. [Id., § 4.] § 2011. [Amended, 1880.] A writ shall not be issued, by virtue of either of the last three sections, to bring up a prisoner, sentenced to death. Nor shall it be issued to bring up a prisoner confined under any other sentence for a felony; except where the application is made in behalf of the people, to bring him up as a witness on the trial of an indictment; and then only by and in the discretion of a justice of the supreme court, or a judge of a superior city court, upon such notice to the district-attorney of the county wherein the prisoner was convicted, and upon such terms and conditions, and under such regulations, as the judge may prescribe. [From id., § 1.] 322 PART II. CHAPTER XVII. CERTAIN SPECIAL PROCEEDINGS INSTITUTED TITLE II. Summary proceedings to recover the possession of real property. PRELIMINARY NOTE.- The enactments revised in this title are 2 R. S., 507-516, Part 3, ch. 8, tit. 10 (3 R. S., 5th ed., 831-840; 2 Edm., 523–534), entitled "Summary proceedings to recover the possession of land in certain cases," and the subsequent amendatory and supplemental acts, to wit: L. 1842, ch. 240, § 1 (3 R. S., 5th ed., 840; 4 Edm., 661); L. 1849, ch. 193 (3 R. S., 5th ed., 836, 837, 840; 2 Edm., 529, 531, 533, 534) ; L. 1851, ch. 460; L. 1857, ch. 684 (3 R. S., 5th ed., 837, 838, 839; 2 Edm., 529, 530, 531, 532); L. 1862, ch. 368 (2 Edm., 531); L. 1863, ch. 189 (6 Edm., 86); L. 1868, ch. 764 (7 Edm., 335); id., ch. 828 (7 Edm., 355); L. 1873, ch. 583 (9 Edm., 653); L. 1874, ch. 208, and id., ch. 471 (9 Edm., 874, 961); L. 1876, ch. 356; and L. 1877, ch. 187. The provisions of these statutes have been greatly condensed; not only by amendments of the language used, the consolidation of separate provisions relating to similar subjects, and the omission of superfluous provisions; but also by providing a common mode of procedure for the different classes of cases of which they treat. The corresponding title of the R. S. is divided into two articles, to wit: article 1, entitled, "Of forcible entries and detain," and article 2, entitled, "Summary proceedings to recover the possession of land in other cases;" and the remedies under the two articles are different, in substance and in form. The statutes from which article 1 was taken, were originally of a criminal character, and their object was rather to punish the wrong-doer, than to restore the possession to the person wrongfully dispossessed; and although they were afterwards so modified as to be strictly remedial in their character, the mode of procedure was analogous to that in criminal proceedings, and too intricate and expensive to be of much practical value. Indeed, the expression, "summary," as applied to the proceedings under article 1, was a misnomer; for the necessary inquisition before a quasi grand jury, the traverse thereof, and the usual certiorari to the supreme court, with the difficulties and doubts necessarily attending an anoma ers, JUSTICE'S MANUAL. lous and unusual mode of procedure, constituted a system, under which a complainant would rarely be restored to possession, sooner than he would be by the ordinary action of ejectment. As the effect of the proceedings was only to restore the possession, without trying the title, it was thought unnecessary to preserve them in the form of a separate remedy; and, accordingly, this title consolidates the two articles, and thus provides one method in all cases to recover summarily the possession of land. The remedy under §§ 24-27 of the R. S. (article 2), by a view, etc., of deserted premises has also been abolished. It is unnecessary, since the abolition of distress for rent, as the landlord may obtain possession, in such a case, in the same manner as in other cases, ample provision being made for service of the precept. When tenant may be removed. As a summons is now the appropriate process for the commencement of a civil action, the word, "precept", which was the name of the initial process in proceedings under article 1 of the R. S., has been adopted to designate the process by which each of the special proceedings taken under this title is commenced. For a similar reason, a petition has been substituted, in place of the "complaint," under article 1, and the " affidavit," under article 2; and a final order in place of the "award" and the "judgment," under article 2. § 2231. 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. Where 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. 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 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. 4. 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. [2 R. S., 512, Part 3, ch. 8, tit. 10, § 28, subd. 1, 2 and 3 (3 R. S., 5th ed., 836; 2 Edm., 529), as amended by L. 1849, ch. 193; also § 55, added to the same title by L. 1868, ch. 764, § 1 (7 Edm., 335); and L. 1873, ch. 583, § 1 (9 Edm., 653); consolidated, with several amendments, none of which materially affect the true construction of the former statutes. The expression in § 28 of the R. S., "assigns, undertenants or legal representatives" has been retained, under which it was held, that where a landlord took these proceedings against his tenant, and an undertenant in possession was not made a party, a warrant, following a judgment for the petitioner, to remove "all persons" from the premises, and put the petitioner into possession, was a protection to the marshal for ejecting the undertenant, but that the landlord was liable to the latter in damages, as for trespass. Croft, Adm'x, v. King, Ex'r, N. Y. C. P., 19 A. L. J. 441. In subd. 2, the words, "in the alternative", have been inserted for greater clearness; and the words, "in behalf of", have been substituted for "by ", to avoid the possible construction that the notice must be served by the landlord personally. It was held, in People v. Dudley, 58 N. Y., 328, that a demand of the rent may include interest from the time of the default. The ruling will be equally applicable to this subdivision as amended. See, also, People ex rel. Morgan v. Keteltas, 12 Hun, 67. The proceedings cannot be taken for a failure to pay taxes, pursuant to a covenant in the lease, although the lease contains a provision avoiding it in case of such a failure. People ex rel. Jay v. Bennett, 14 Hun, 58. Where, during the life of a lease, the landlord and the tenant entered into a contract for the sale of the property to the latter, providing that it should be void if it was not fulfilled by a specified time, and the tenant failed to fulfil the contract of sale by the time specified, and afterwards rent was paid upon the lease, held, that the landlord might maintain these proceedings, although valuable improvements had been made while the contract of sale was in force; and that the effect of the summary proceedings was to restore the landlord to possession, free from all claims under the lease or contract. Bostwick v. Frankfield, 11 Hun, 475. In subd. 3, the words "he being in possession under a lease for" have been substituted in place of "the tenant or lessee of", so as to correspond with the phraseology of the other subdivisions; and the final clause has been substituted for "under any act for the relief of his person from imprisonment", as being broader than the original. Subd. 4 contains the substance of the provisions. of the acts of 1868 and 1873, without material change.] PART II. holding sold, etc., may be § 2232. In either of the following cases, a person, who holds Person over and continues in possession of real property, after notice to over land quit the same has been given, as prescribed in section 2236 of this removed. act, and his assigns, tenants, or legal representatives, may be removed therefrom, as prescribed in this title: 1. Where the property has been sold by virtue of an execution |