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possession proceedings not authorized for breach of condition against subletting for which landlord may terminate letting. Kramer v. Amberg, 115 N. Y. 655.

2232. Summary proceedings founded on executive sale may be maintained against judgment creditor personally. People v. McAdam, 84 N. Y. 287. Sale to be advertised and conducted as sale of real property to entitle purchaser to maintain summary proceedings to remove judgment-debtor. Mitnacht v. Cocks, 65 How. Pr. 84.

§ 2233.

$ 2234.

More than mere words necessary to make forcible detainer. Pharis v. Gere, 110 N. Y. 336. Not forcible entry for landlord to enter premises of tenant by will or sufferance by use of key. Morgan v. Powers, 83 Hun, 298. See Compton v. "The Chelsea," 139 N. Y. 538. One regaining possession peacefully may resist attempt of former occupant to put him out. Bliss v. Johnson, 73 N. Y. 529.

Court will take judicial notice of statute creating wards of city. Armstrong v. Cummings, 20 Hun, 313; see People v. Kelly, 20 Hun, 549. 2235. Landlord who contracted to sell premises may take proceedings if deed not delivered. Miller v. Levi, 44 N. Y. 489. Precept may be issued in agent's name. Powers v. De. O., 64 App. Div. 373. Purchaser at tax sale may institute summary proceedings by stating facts giving jurisdiction under the statute. Matter of Cary, 37 App. Div. 631. Statute applicable to judgment debtor and all holding under him under pretense of title acquired from him after judgment. People v. McAdam, 84 N. Y. 287. 2236. As to notice to quit, see Reeder v. Sayre, 70 N. Y. 180. Demand for rent may be made by agent as well as landlord. People v. Dudley, 58 N. Y. 323.

2237.

Not a defense that before trial tenant has discontinued illegal business. Stearns v. Hemmens, 14 Daly 501. Knowledge of immoral acts complained of must be brought home to tenant to render him liable to ejectment for keeping disorderly house. Moench v. Young, 29 St. Rep. 731. 2238. Precept dated as of six days before made returnable by reason of clerical error, but actually issued three days before, not sufficient. Powers V. De. O., 64 App. Div. 373. Summons under tax deed returnable on same day confers no jurisdiction. People ex rel. v. Andrews, 52 N. Y. 445. 2239. Justice has no power to adjourn summary proceeding to future day on his own motion when tenant has not filed answer. People ex rel v. Murray, 50 St. Rep. 535.

§ 2240.

$ 2243.

§ 2244.

§ 2245.

§ 2247.

§ 2248.

§ 2249.

§ 2250.

Section does not authorize substituted services at demise premises where tenant's residence is known to person serving process. Eckerson v. Ellis, 63 N. Y. Supp. 150; see 11 App. Div. 264. Petition to dispossess must state which method was followed in making service. Stuyvesant Real Est. Co. v. Sherman, 40 Misc. 205.

Affidavit defective when not showing that copy was left with person of mature age at last place of residence of tenant. People v. Matthews, 38 N. Y. 451. Defendant in summary proceedings is not in court by voluntary appearance until verified answer is filed by him. Wands v. Robarge, 24 Misc. 273; see Nemetty v. Naylor, 100 N. Y. 562.

Order awarding possession in summary proceedings proper when conditions in lease are not conditions precedent to right to terminate tenancy. Matter of Coatsworth, 160 N. Y. 114. See Becker v. Church, 115 N. Y. 562. Objection of res adjudicator must be raised by answer. Fitztuskie v. Wauroski, 83 App. Div. 150.

Words "constructive possession" construed. Lowman v. Sprague, 73 Hun, 408.

Error to refuse to appoint guardian for infant who answers that he, as tenant, is an infant. Jessurun v, Mackie, 24 Hun, 624; 86 N. Y. 622.

Adjournment by consent does not oust jurisdiction. Brown v. Mayor, 66 N. Y. 385. See People v. Kelly, 20 Hun, 549.

Where summary proceedings were transferred to another justice, his duty to make and enforce final order. Wyckoff v. Froumer, 12 Misc. 149. When order in summary proceedings final where it does not award costs. Bergholtz v. Ithaca Street Ry. Co., 27 Misc. 176.

Costs or disbursements in N. Y. district court to recover real property for N. Y. Mut. L. Ins. Co., v. Waldron, 9 Daly 472. non-payment of rent.

§ 2251.

$ 2252.

§ 2253.

§ 2254.

§ 2256.

Warrant otherwise good, not affected by recital that a person named was in possession. Babin v. Ensley, 14 App. Div. 548. When error immaterial Warner v. Henderson, 25 Hun, 303.

Warrant properly issued protects all who act under it. Higenbothem v. Lowenbein, 28 How. Pr. 221.

Eviction only annuls lease as to future rights and liabilities. Johnson v. Oppenheim, 55 N. Y. 280; see also 74 N. Y. 413. Issue of warrant can cels sub-lease. Ash v. Purnell, 32 St. Rep. 306. Tenant not liable for rent after dispossession. Michaels v. Fishel, 51 App. Div. 274.

Tenant making no offer to pay after final order of dispossession and giv ing no undertaking, his legal rights not invaded by order. Stelle v. Creamer, 69 App. Div. 296. Justice of City Court staying summary pro ceedings, tenant by paying the rent before expiration of stay, ousted justice of jurisdiction. Newcombe v. Eagleton, 19 Misc. 603. Stay of proceedings pending appeal in summary proceedings must be obtained in the mode prescribed. Ludwig v. Lazarus, 10 App. Div. 62.

Section does not apply to case where tenant removed for non-payment of taxes and assessments. Witty v. Action, 35 St. Rep. 949. What is included in "rent "" under this section. Bien v. Bixby, 18 Misc. 415. Party making tender under this section entitled to immediate possession. Bien v. Bixby, 22 Misc. 126.

§ 2257. Justice has sufficient power to protect rights of parties. Sheldon v. Testera, 21 Misc. 477.

$ 2260.

§ 2261.

§ 2262.

§ 2263.

Appeal for refusing to appoint guardian ad-litem for infant defendant, not action to enjoin enforcement of final order. Jessurum v. Mackie, 24 Hun, 624; 86 N. Y. 622. When defendant entitled to costs as of course. Harrison v. Swart, 34 Hun, 259.

In summary proceedings no stay can be had by holding over after tenant's term ends. Schenck v. Prame, 63 How. Pr. 165.

Stay pending and to perfect appeal from judgment for rent is in effect to stay proceedings. D. L. I. Co. v. Thompson-Houston El. Co., 2 Misc. 182.

Remedies provided by this section are not exclusive. Haebler v. Myers, 132 N. Y. 363. Restitution not awarded where reversal of judgment in landlord's farm is on the ground of irregularities. People ex rel v. Hamilton, 15 Abb. 328. Under tenant may recover damages upon reversal of judgment in farm of landlord against him. Eten v. Lunyster, 60 N. Y. 252. Damages to plaintiff's business not recoverable in addition to damages to property. Hayden v. Florence S. M. Co., 54 N. Y. 221.

$ 2264. Judgment by default for non-payment of rent not conclusive as to amount of rent although alleged in affidavit. Jarvis v. Driggs, 69 N. Y. 143.

§ 2265.

§ 2266.

Court has power to restrain injunction, summary proceedings. Landon v. Supervisors, 24 Hun, 75. When court will not interfere to decree specific performance. Sherman v. Wright, 49 N. Y. 227. Landlord by instituting summary proceedings to evict tenant, affirms the lease as it exists. Lovatt v. Watson, 35 Hun, 553.

Court of record has power to punish attorney for contempt in knowingly procuring court's approval of worthless order of arrest. Nuccio v. Porto, 72 App. Div. 88. See Wheelock v. Noonan, 108 N. Y. 179. Plaintiff not guilty of contempt for failing to comply with directions of order until copy has been served on him. Sandford v. Sandford, 40 Hun, 540.

$2267. Distinction between proceedings for contempt occurring in presence of judge and cases of professional misconduct out of immediate presence of court. Matter of Eldridge, 82 N. Y. 161. Refusal of witness to answer questions before grand jury while Court of Oyer and Terminer in session is criminal contempt in presence of court. Matter of Taylor, 8 Misc. 159Commitment issued, without order not proper and vacated, though the con tempt was committed in presence of court. Matter of Falkenburg, 19 Misc. 418.

$ 2268.

Judgment debtor refusing to pay costs of supplementary proceedings can be punished for contempt. Holton v. Robinson, 59 App. Div. 45- Com

mitment for contempt may be issued by any justice of Supreme Court holding term in any part of State. People v. Grant, 50 Hun, 243.

§ 2269. Court may fine defendants for civil contempt though relators ask for criminal contempt. People v. Rice, 144 N. Y. 250. Defects waived in affidavit when party appears in response to order to show cause why they should not be punished for contempt. People v. Court of Sessions, 147 N. Y. 290.

§ 2270.

§ 2272.

§ 2273.

Sheriff served with warrant of attachment against plaintiff's property before return day no excuse for not returning execution." Parker v. Bradley, 46 N. Y. Supr. 244.

Power of referee to punish for contempt. Naylor v. Naylor, 32 Hun, 228. Proceeding to punish party for contempt not a special proceeding and final order not appealable to Court of Appeals. J. M. A. v. Rothchild, 155 N. Y. 255.

& 2274. Sufficient if party charged v. Bininger, 75 N. Y. 344. party not served personally.

with contempt had reasonable notice. Clark Objection waived when attorney appeared for Hart v. Johnson, 43 Hun, 505.

§ 2278. Section does not provide that proceeding by order to show cause cannot be taken. People v. Grant, 50 Hun, 243.

§ 2280. Interrogatories not necessary where proceedings are commenced by order to show cause. Mayor v. N. Y. & S. Í. F. Co., 64 N. Y. 622. Misconduct punished as contempt must defeat, impair, impede or prejudice a right. Fischer v. Raab, 81 N. Y. Mandate should be clearly expressed.

Ketchum v. Edwards, 153 N. 135. 534.

Fine

§ 2281. Refusal to comply with order upon ground that it is illegal does not relieve defendant from contempt. King v. Barnes, 51 Hun, 550. Order of commitment must be strictly construed. People v. Bergen, 53 N. Y. 404. imposed is for compensation of injured party and not as a punishment for contempt. S. C. Pub. Ass'n. v. Kuhn, 51 App. Div. 583.

$ 2284.

$ 2285.

§ 2286.

$ 2304.

§ 2320.

§ 2321.

When executor entitled to credit account with amount he was fined for contempt. Matter of Pye, 154 N. Y. 773. Commitment for contempt sufficient although not specifying duration of imprisonment. People v. Anthony, 7 App. Div. 132; aff'd 151 N. Y. 620.

Actual effort to make judgment nugatory an unlawful interference. King v. Barnes, 113 N. Y. 476.

Application should be on notice to adverse party. Strowbridge v. Strowbridge, 21 Hun, 288. Defendant held under execution against person cannot be released because he cannot bear imprisonment. Moore v. McMahon, 20 Hun, 44.

See Matter of Hyde, 41 Hun, 637.

Incompetency does not embrace mere weakness of mind nor lack of business capacity. Matter of Brugh, 61 Hun, 193. Test or right to manage own property is competency to manage ordinary affairs of life. Matter of Williams, 24 App. Div. 247.

Interests of lunatic, and not those of expectant successors of estate, to be considered by court. Parsee Case, 3 Daly, 529.

§ 2322. Appointment of stranger as committee of lunatic without proper notice to those having prospective interest in estate, not authorized. Matter of Lamoree, 32 Barb. 122. Committee to be selected in view of all the circumstances in particular case. Matter of Paige, 7 Daly, 155.

§ 2323.

§ 2323a.

§ 2325.

Court has discretion to direct what relatives to be made parties. Matter of Porter, 34 App. Div. 147. Practice is to present verified petition with affidavits alleging incompetency to manage affairs and asking for appointment of committee. Matter of Church, 64 How. Pr. 393.

Section not unconstitutional.

Matter of Walker, 57 App. Div. 1.

Section does not touch question of right of alleged lunatic to have notice also. Matter of Blewitt, 131 N. Y. 541. Motion to set aside inquisition in lunacy should be addressed to court. Matter of Clark, 31 Misc. 339.

See Gridley v. College of St. Francis Xavier, 137 N. Y. 327.

§ 2326.

Courts of this State do not recognize foreign_guardian or committee of lunatic. Matter of Neally, 26 How. Pr. 402. Discretionary with court to appoint non-resident committee or guardian of non-resident incompetent of property within State. Matter of Bartelme, 34 Misc. 131. Inquisition declaring person incompetent not conclusive against ability to choose an other domicile when no committee was appointed. Matter of Fidelity Trust Co., 27 Misc. 118.

2328. Improper findings will not prevent confirmation of other findings. Mat ter of Grote, 31 Misc. 99.

2330. Juror ought not to sit when he has formed opinion some little evidence required to overcome. Matter of Klock, 49 Hun, 450.

& 2331. Person may be incompetent to manage person and property and still be removed from idiocy. Jackson v. Jackson, 37 Hun, 306.

§ 2332. Inquisition declaring person to be of unsound mind prior to the finding. only presumptive evidence of incapability. Banker v. Banker, 63 N. Y. 409.

$ 2333. Jurors only entitled to twenty-five cents and not allowed per diem allowance. Matter of Sandford, 39 St. Rep. 808.

$ 2334. Question of practice relating to regularity of proceedings upon execution of commission cannot be reviewed collaterally in another action. Van Duesen v. Sweet, 51 N. Y. 378. See also 115 N. Y. 504.

§ 2335. Inquiry must be confined to incompetency of person at time inquisition held. Matter of Denelt, 27 Hun, 480. When finding that lunatic was insane for eight months cannot attack validity of mortgages executed by lunatic. Reals v. Weston, 28 Misc. 67.

§ 2336.

Section does not regulate compensation of attorney for services as between attorney and client. Matter of Hardy, 26 App. Div. 164. Proceedings resulting in inquisition, court should confirm any defects in petition and affidavits. Matter of Clark, 57 App. Div. 5. Where estate insufficient to pay debt, assets must be distributed ratably among creditors. Matter of Otis, 101 N. Y. 580. See 114 N. Y. 16.

§ 2336a. Sufficiency of allegations of petition cannot be questioned after return of inquisition finding sufficient facts. Matter of Zimmer, 15 Hun, 214. When promise by insane person to repay money loaned of which he had benefit, valid. Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541.

$ 2338. Court may allow additional amount of commissions to committee when inadequate. Matter of Brayer, 57 N. Y. Supp. 957. Discretion of court to allow counsel fees on final settlement of accounts of committee. In re Blossom's Estate, 7 N. Y. Supp. 360. Compensation of committee and allowance for maintenance to be determined upon accounting by court appointting him. Matter of Board of Street Opening, 89 Hun, 525.

§ 2339.

§ 2340.

§ 2341.

& 2342.

§ 2343.

Committee of lunatic merely agent of court. Kent v. West, 33 App. Div. 112. See also 163 N. Y. 589. Committee not allowed to lease premises without order of court. Pharis v. Gere, 110 N. Y. 336. When intermediate accounting should be had. Matter of Arnold, 76 App. 126.

Committee of lunatic may maintain action_for partition without making lunatic a party. Koepke v. Bradley, 3 App. Div. 391; aff'd 151 N. Y. 622. Committee cannot sue in his own name for land which belonged to lunatic previous to his appointment. Burnet v. Bookstaver, 10 Hun, 481. Lunatic defendant can voluntarily appear and court may appoint guardian ad litem for him in partition. Rogers v. McLean, 34 N. Y. 536.

Committee of drunkard can be charged with one half of expenses of accounting when they fail to file inventory. Stephens v. Marshall, 23 Hun, 641.

"

Commissions should not be allowed committee upon spending money for incompetent. Stephens v. Marshall, 23 Hun, 641. Attorney may maintain action against estate of deceased lunatic for services rendered, being sanctioned by court. Carter v. Beckwith, 128 N. Y. 312. Court without jurisdiction when no special guardian was appointed. Matter of McCusker. 32 Misc. 47.

Petitioner to be called before referee and examined by physicians when his discharge is opposed. Matter of Newcomb, 58 App. Div. 338. See 138

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N. Y. 148. Application for discharge by lunatic denied when he refused to allow himself to be examined by physician. Matter of Blewitt, 68 Hun, 127; aff'd 138 N. Y. 141.

§ 2344. Powers and functions of committee ceases upon death of lunatic. Matter of Beckwith, 87 N. Y. 503. Court of equity may order accounting after death of incompetent. Downing v. Whitney, 46 App. Div. 307. Supreme court has jurisdiction to determine necessary disbursements of committee, etc. Matter of Ferris, 86 App. Div. 559.

$ 2345.

General jurisdiction over person and property of insane person limited only by special requirements. Agricultural Ins. Co. v. Barnard, 96 N. Y. 525 Section does not apply to action in equity to compel execution of deed in place of a prior unrecorded one which was lost. Kent v. Church of St. Michael, 136 N. Y. 10. In action to compel enforcement of agreement to renew lease, evidence is proper to show that person was incompetent at the time fixed for renewal. Wurster v. Armfield, 175 N. Y. 256, rev'g 67 App. Div. 158.

Coke

& 2347. Petition for sale may be made by next friend or guardian alone. v. Gourlay, 79 N. Y. 527. Statute does not prescribe any particular form by person who presents application as next friend. Aldrich v. Funk, 48 Hun, 367.

§ 2348. Proceedings relating to sale or mortgage of real estate of infant void unless in strict conformity of statute. Losey v. Stanley, 147 N. Y. 560. Court has no power to mortgage realty to pay debt incurred by guardian in unauthorized prosecution of infant's business. Warren v. Union Bank, 157 N. Y. 259. Court can authorize sale of land of infants to wife of special guardian. Strauss v. Bendheim, 162 N. Y. 469.

§ 2350. Petition sufficient, reciting infant is petitioner but acknowledged and executed by guardian. Matter of Hopkins, 33 App. Div. 615. See Blanchard v. Blanchard, 33 Misc. 284.

§ 2351.

§ 2352.

§ 2353.

$ 2354.

§ 2355.

§ 2356.

Supreme Court has jurisdiction to compel special guardian appointed by county court to acount and pay over moneys. Matter of Spelman v. Terry, 74 N. Y. 448. No bond required to mortgage property for support of insane person. Agricultural Ins. Co. v. Barnard, 96 N. Y. 525. Liability of sureties when committee, without order of court sells and misappropriates proceeds of real property of lunatic. Johnson v. Ayres, 18 App. Div. 495. See Long v. Long, 142 N. Y. 545.

General guardian has nothing to do with the proceedings. Allen v. Kelly, 55 App. Div. 454. Omission of penalty in bond does not affect its validity. Dodge v. St. John, 96 N. Y. 260.

Special guardian must be directed to account and pay over by competent court before action will lie on bond. Brown v. Balde, 3 Lans. 283; 57 N. Y. 286. Special guardian selling interests of infant devisees and without authority paid proceeds to creditor of testator who obtains judgment, bondsmen liable to infant. Long v. Long, 142 N. Y. 545.

Reference essential to sell real estate of infant. Matter of Valentine, 72 N. Y. 184. Objection on appeal that no reference was ordered by county court at trial, not allowed. Aldrich v. Funk, 48 Hun, 367.

Not necessary to have deed executed in name of infant. Cole v. Gourlay, 79 N. Y. 527. Jurisdiction is prima facie in proceedings to mortgage or sell infant's real estate. Agricultural Ins. Co. v. Barnard, 96 N. Y. 525.

When mortgage of lunatic's property by committee without bond, invalid. Corbin v. Dwyer, 30 Misc. 488. When statute to be strictly complied with. Battell v. Torrey, 65 N. Y. 294. Mortgage executed without prior authority of court void and not valid. Agricultural Ins. Co. v. Barnard, 26 Hun, 302. See also 96 N. Y. 525.

Sale

For

$ 2357. Provisions do not apply to land descended to infant or legal trust estate held by him. Wood v. Mather, 38 Barb. 473; aff'd 44 N. Y. 249. contrary to will or conveyance whereby infant acquires title is void. man v. Marsh, 11 N. Y. 544. Section applies only to special proceedings. Livingston v. Livingston, 56 App. Div. 484.

§ 2358.

§ 2359.

Purchaser under defective proceedings may have title perfected or money refunded. Matter of Valentine, 72 N. Y. 184. Title of purchaser of infant's property not affected by will stolen by one plaintiff. Cole v. Gourlay, 79 N. Y. 527.

Proceeds remain property of same nature as estate or interest sold until insanity is removed. Walrath v. Abbott, 75 Hun, 445. Committee of lunatic receiving money as damages for maintaining railroad in front of

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