New York (State).

The colonial laws of New York from the year 1664 to the Revolution : including the charters to the Duke of York, the commissions and instructions to colonial governors, the Duke's laws, the laws of the Dongan and Leisler Assemblies, the charters of Albany and New York and the acts of the colonial le online

. (page 63 of 92)
Online LibraryNew York (State)The colonial laws of New York from the year 1664 to the Revolution : including the charters to the Duke of York, the commissions and instructions to colonial governors, the Duke's laws, the laws of the Dongan and Leisler Assemblies, the charters of Albany and New York and the acts of the colonial le → online text (page 63 of 92)
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unlawful Act shall be afterwards done by the Party or Parties
distraining, or by his her or their Agents, the Distress itself
Bhall not be therefore deemed to be unlawful, nor the Party or
Parties making it be deemed a Trespasser or Trespassers db
initio; but the Party or Parties aggrieved by such unlawful Act
or Irregularity, shall or may recover full Satisfaction for the
special Damage, he she or they shall have sustained thereby
and no more, in an Action of Trespass, or on the Case at the
Election of the Plaintiff or Plaintiffs; Provided always That
where the Plaintiff or Plaintiffs shall recover such Action, he
she or they shall be paid his her or their full costs of Suit, and
have all the like Remedies for the same as in other Cases of
Costs. Provided neveiHhelesSy That no Tenant or Tenants, Les-
see or Lessees, shall recover in any Action for any such unlaw*
ful Act or IrriBgularity as aforesaid, if Tender of Amends hath
been made by the Party or Parties distraining, his her or their
Agent, or Agents, before such Action brought.

And he it further Enacted hy the Authority aforesaid^ That
in all Actions of Trespass or upon the Case to be brought against
any Person or Persons intitled to any Rents or Services of any
Kind, his her or their Bailiff or Receiver, or other Person or
Persons relating to any Entry by virtue of this Act, or other-
wise upon the Premises chargeable wuth such Rents or Services,
or to any Distress or Seizure, Sale or Disposal of any Goods or
Chattels thereupon, it shall and may be lawful to and for the
Defendant or Defendants in such Actions to plead the general
Issue and give the special Matter in Evidence, any Law or Usage
to the contrary notwithstanding, and in Case the Plaintiff or
Plaintiffs shall become nonsuit, discontinue his her, or their
Action, or have Judgment against him her or them, the Defend-
ant or Defendants shall recover double Costs of Suit.

And he it further Enacted That no Goods or Chattels whafso-
ever in or upon the demised Premises shall be liable to be taken
by virtue of any Execution on any Pretence whatsoever, unless
the Party at whose Suit the said Execution is sued out, shall
before the Removal of such Goods from off the said Premises
by virtue of such Execution or Extent, pay to the Landlord of
the said Premises or his Bailiff all Sum or Sums of Money due
for Rent for the said Premises at the Time of the taking such



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C28 LAWS OP THE COLONY OF NEW YOBK.

Goods or Cliattels "by virtue of such Execution, provided tTie
said Arrears of Rent do not amount to more than one Years
Rent, and in Case the said Arrears shall exceed one years Rent,
then the said Party, at whose Suit such Execution is sued out,
paying the said Landlord or his Bailiff one Years Rent, may pro-
ceed to execute his Judgment as he might have done before the
making of this Act: and the Sheriff or other Officer is hereby
impowered and required to levy and pay to the Plaintiff, as well
the Money so paid for Rent as the Execution Money.

And be it further Enacted hy tlie Authority aforesaid^ That
in Case any such Lessee for Life or Lives, Term of Years, at Will
or otherwise shall from and after the passing of this Act, convey
or carry off or from such demised Premises his Goods or Chattels,
leaving the Rent unpaid, it shall and may be lawful Tor such
Lessor or Landlord or any Person or Persons by him for that
Purpose lawfully impowered within the Space of thirty Days next
after such conveying away, or carrying off such Goods or Chattels
as aforesaid, to take and seize such Goods and Chattels where-
ever the same shall be found, as a Distress for the said Arrears of
Rent; and the same to sell or otherwise dispose of in such Manner
as if the said Goods and Chattels had actually been distrained by
such Lessor or Landlord in and upon such Premises for such
Arrears of Rent, any Law custom or usage to the contrary in any
wise notwithstanding.

Provided ncv€7^thel€SSy That Nothing in this Act contained shall
extend or be construed to extend to impower such Lessor or Laud-
lord to take or seize any Goods or Chattels as a Distress for
Arrears of Rent, which shall be sold bona fide^ and for a
valuable Consideration before such Seizure made to any Person
not privy to such Fraud any Thing herein contained to the con-
trary notwithstanding.

And to deter Tenants from such conveying away their Goods
and Chattels leaving the Rent unpaid, and others from wilfully
aiding or assisting therein or concealing the same. Be it further
Enaeted by the Authority aforesaid^ That if any such Tenant or
Lessee shall remove and convey away his or her Goods or Chattels
as aforesaid, or if any Person or Persons shall wilfully and
knowingly aid or assist any such Tenant or Lessee in such convey-
ing away or carrying off of any Part of his or her Goods or
Chattels, or in concealing the same; all and every Person and Per-
sons so offending shall forfeit and pay to the Landlord or Land'
lords, Lessor or Lessors, their Heirs or Assigns^ from whose



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LAWS OF THE COLONY OF irfEW. YORK. 629

EsfaTe sucTi Goods and Chattels were so carried off as aforesaid,
double the yalae of the Goods by him her or them respectively
carried off, or concealed as aforesaid, to be recovered by Action of
Debt in any Court of Record wherein no Essoin, Protection or
Wagep of Law shall be allowed, nor more than one Imparlance.

And be it further Enacted by the Authority aforesaid^ That
where any Goods or Chattels shall be conveyed or carried away as
aforesaid by any Tenant or Tenants, Lessee or Lessees, his her or
their Servant or Servants, Agent or Agents, or other Person or
Persons, aiding or assisting therein, shall be put, placed, or kept
in any House, Barn, Stable, Out House, Yard, Close or Place
locked up, fastened or otherwise secured, so as to prevent such
Goods or Chattels from being taken and seized as a Distress for
arrears of Rent it shall and may be lawful for the Landlord or
Landlords Lessor or Lessors, his or their Heirs or Assigns, his or
their Steward, Bailiff, Receiver or other Person or Persons em-
powered to take and seize as a Distress for Rent, such Goods and
Chattels (first calling to his her or their Assistance the Constable
or other Peace Officer of the Town or Place where the same shall
be suspected to be concealed, who are hereby required to aid and
assist therein; and in Case of a Dwelling House Oath being also
first made before some Justice of the Peace of a reasonable
Ground to suspect that such Goods or Chattels are therein,) in
the Daytime to break open and enter into such House, Barn,
Stable, Out House, Yard, Close and Place, and to take and seize
such Goods and Chattels for the said Arrears of Rent, as he she
or they might have done by virtue of this or any former Act, if
6uch Goods and Chattels had been put in any open Field or Place.
Be it further Enacted by the Authority aforesaidj That
it shall be lawful for any Person or Persons, having any Rent
in Arrear or due upon any Lease or Demise for Life or Lives
to bring an Action or Actions of Debt for such Arrears of Rent
in the same Manner they might have done in Case such Rent
were due, and reserved upon a Lease for Years.

And Whereas Tenants per Auter Tte, and Lessees for Years
or at will frequently hold over the Tenements to them demised,
after the Determination of such Lease: And Whereas after the
Determination of such or any other Leases no Distress can by
I>aw be made for any Arrears of Rent that grew due on such
respective Leases before the Determination thereof: It is hereby
further Enacted by the Author ity aforesaid^ That it shall be
lawful for any Person or Persons having any Rent in arrear and



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630 LAWS OF THE COLONY OP NEW YORK.

due upon any Lease for Life or Lives, or for Years op at Will
ended or determined to distrain for such Arrears, after the De*
termination of the said respective Leases, in the same Manner
as thej might have done if such Lease or Leases had not been
ended or determined.

Provided^ That such Distress be made within the Space of six
Kalender Months after the Determination of such Lease and
during the Continuance of such Landlord's Title or Interest, and
during the Possession of the Tenant from whom such Arrear
became due.

Provided always and it is hereby enacted and declared by the
'Authority aforesaid^ That Nothing in this Act contained shall
extend or be construed to extend to let hinder or prejudice his
Majesty, his Heirs or Successors in the levying recovering or
seizing any Debts Fines Penalties or Forfeitures that are or
shall be due payable or answerable to L;» Majesty his Heirs or
Successors; but that it shall and may be lawful for his Majesty,
his Heirs and Successors to levy recover and seize such Debts
Fines Penalties and Forfeitures in the same Manner as if this
Act had never been made, any Thing in this Act contained to
the contrary thereof in any wise notwithstanding.'

And be it further Enacted^ That in Case any Tenant or Tenants
for any Term of Life Lives or Years or other Person or Persons
who are or shall come into Possession of any Lands Tenements
or Hereditaments by from or under, or by Collusion with such
Tenant or Tenants, shall wilfully hold over any Lands Tenements
or Hereditaments after the Determination of such Term or Terms,
and after Demand made and Notice in writing given for deliver-
ing the Possession thereof, by his or their Landlords or Lessors,
or the Person or Persons to whom the Kemainder or Reversion
of such Lands Tenements or Hereditaments shall belong, his or
their Agent or Agents thereunto lawfully authorized, then and
in such Case, such Person or Persons so holding over, shall for
and during the Time he she or they shall so hold over or keep
the Person or Persons intitled, out of Possession of the said
Lands Tenements and Hereditaments as aforesaid, pay to the
Person or Persons so kept out of possession their Executors Ad-
ministrators or Assigns at the ffate of double the Yearly Value
of the Lands Tenements and Hereditaments so detained, for so
long Time as the same are detained to be recovered in any of
the Courts of Record in this Colony, by Action of Debt, where-
nnto the Defendant or Defendants shall be obliged to give special



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LAWS OF THE COLONY OP NEW YORK. 631

Bail, against tlie recovering or which said Penalty there shall
be no Relief in Equity.

And be it further Enacted by the Authority aforesaid^ That
in Case any Tenant or Tenants shall give Notice of his, her, or
their Intention to quit the Premises by him hei* or them holden,
at a Time mentioned in such Notice, and shall not accordingly
deliver up the Possession thereof at the Time in such Notice
contained, that then the said Tenant or Tenants his her or their
Executors or Administrators shall from thenceforward pay to
the Landlord or Landlords, Lessor or Lessors their !Q!eirs or
Assigns double the Rent or Sum which he she, or they should
otherwise have paid; to be levied, sued for and recovered at the
same Times and in the same Manner as the single rent or Sum
before the giving such Notice could be levied, sued for, or recov-
ered, and such double Rent or Sum shall be continued to be paid,
during all the Time such Tenant or Tenants shall continue in
possession as aforesaid.

And Whc7^€as great Inconveniencies may happen to Lessors
and Landlords in Cases of Re-entry for non-payment of Rent by
reason of the many Nicities that attend Re-entries at Common
Law, and for asmuch as when a legal Re-entry is made, the Land-
lord or Lessor must be at the Expence Charge and Delay of
recovering in Ejectment before he can obtain the actual Posses-
sion of the demised Premises, for Remedy whereof.

Be it Enacted by the Authority aforesaid That in all Cases
between Landlord and Tenant from and after the passing this
Act as often as it shall happen that one half Years Rent shall
be in arrear, and the Landlord or Lessor to whom the same is
due hath Right by Law to re-enter for the nonpayment thereof
such Landlord or Lessor, shall and may without any formal
Demand or Re-entry, serve a Declaration in Ejectment, for the
Recovery of the demised Premises, or in Case the same cannot
be legally served, or no Tenant be in actual possession of the Prem-
ises, then to affix the same upon the Door of any demised Messuage,
or in Case such Ejectment shall not be for the Recovery of any
Messuage, then upon some notorious Place of the Lands, Tene-
ments or Hereditaments comprized in such Declaration in Eject-
ment, and such affixing shall be deemed legal Service thereof,
which Service or affixing such Declaration in Ejectment shall
stand in the Place and stead of a Demand and Re-entry, and in
Case of Judgment against the casual Ejector or nonsuit for not
confessing Lease Entry and Ouster, it shall be made appear to



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esa LAW s OP the colony of new york.

the Court where the said Suit is depending, by AflQdavit op be
proved upon the Trial in Case the Defendant appears, that half
a Years Rent was due before the said Declaration was served,
and that no sufiSoient Distress was to be found on the demised
Premises^ countervailing the Arrears then due, and that the
Lessor or Lessors in Ejectment had Power to Re-enter, then and
in every such Case the Lessor or Lessors in Ejectment shall
recover Judgment and Execution in the same Manner as if the
Rent in arrear had been legally demanded and Re-entry made;
and in Case the Lessee or Lessees, his her or their Assignoe or
Assignees or other Person or Persons claiming or deriving und<^r
the said Lease shall suffer Judgment on such Ejectment, uud
Execution to be executed thereon, without paying the Rent and
Arrears together with full Costs, and without filing any Bill or
Bills for Relief in Equity, within six Kalender Months after
such Execution executed, then and in such Case the said Lessee
or Lessees his her or their Assignee or Assignees, and all other
Persons claiming and deriving under the said Lease shall be
barred and foreclosed from all Relief or Remedy in Law or
Equity, other than by Writ of Error for reversal of such Judg-
ment in case the same shall be erroneous, and the said Land-
lord or Lessor shall from thenceforth hold the same demised
Premises discharged from such Lease or Contract, and if on
such Ejectment, verdict shall pass for the Defendant or Defend-
ants, or the Plaintiff or Plaintiffs shall be nonsuited therein
except for the not confessing Lease, Entry and Ouster, then and
in every such Case such Defendant or Defendants shall have
and recover his her and their full Costs, Provided ahvays, That
Nothing herein contained shall extend to bar the Right of any
Mortgagee or Mortgagees of such Lease, or any Part thereof,
who shall not be in Possession, so as such Mortgagee or Mort-
gagees shall and do within six Kalender Months after such Judg-
ment obtained and Execution executed pay all Rent in Arrear,
and all Costs and Damages sustained by such Lessor, Person or
Persons intitled to the remainder or Reversion as aforesaid and
perform all the Covenants and Agreements which on the Part
and behalf of the first Lessee' or Lessees are and ought to be
performed.

Aiid be it further Enacted hy the Authority aforesaid^ That
in Case the said liessee or Lessees, his, her, or their Assignee
OP Assignees or other Person or Persons claiming any Right
Title OP Interest in Law op Equity of in or to the said Lease shall
within the Time aforesaid file one or more Bill or Bills for pelief



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LAWS OF THE COLOKY OF NEW YORK. (J33

in any Court of Equity, such Person or Persons shall nol have
or continue any Injunction against the Proceedings at Law on
such Ejectment unless he she or they do or shall within forty
Days next after a full and perfect Answer shall be filed by the
Lessor or Lessors of the Plaintiff, in such Ejectment, bring into
Court and lodge with* the proper OflBcer such Sum and Sums
of Money as the Lessor or Lessors of the Plaintiff in the said
Ejectment shall in his, her, or their Answer swear to be due
and in arrear over and above all just Allowances, and also the
Costs taxed in the said Suit, there to remain till the hearing
of the Cause, or to be paid out to the Lessor or Landlord on
good Security, subject to the Decree of the Court, and in Case
such Bill or Bills shall be filed within the Time aforesaid and
after Execution is executed, the Lessor or Lessors of the Plain-
tiff shall be accountable only for so much and no more, as he
she or they shall really and bona fide without Fraud Deceit, or
wilful Neglect make of the demised Premises, from the Time of
his her or their entering into the actual Possession thereof, and
if what shall be so made by the Lessor or Lessors of the Plain-
tiff happen to be less than the Rent reserved on the said Lease,
then the said Lessee or Lessees, his her or their Assignee or As*
signees, before he she or they shall be restored to the Possession
or Possessions, shall pay such Lessor or Lessors, or Landlord
or Landlords with the Money so by them made, fell short of
the reserved Rent, for the Time such Lessor or Lessors of the
Plaintiff, Landlord or Landlords held the said Lands.

Provided ahcays and be it further Enacted by tlie Authority
aforesaid That if the Tenant or Tenants, his her or their As-
signee or Assignees shall at any Time before the Trial in such
Ejectment pay or tender to the Lessor or Landlord, his Executors
or Administrators, or his her or their Attorney in that Cause,
or pay into the Court where the same Cause is depending, all
the Rent and Arrears, together with the Costs, then and in such
Case, all further Proceedings on the said Ejectment shall Cease,
and be discontinued; and if such Lessee or Lessees, his her or
their Executors Administrators or Assigns shall upon such Bill
filed as aforesaid be relieved in Equity, he she and they shall
have hold and enjoy the demised Lands according to the Lease
thereof made, without any new Lease to be thereof made to him
her or them.

And be it further Enacted by the Authority aforesaid^ That
from and after the passage of this Act, all and every Person or Per-
80



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63« LAWS OF THE COLONY OF NEW YORK.

Bons, Bodies Politic and Corporate, shall and may have the like
Remedy by Distress and by imjwunding and selling the same in
Cases of Rents-Seek, Rents of Assize, and Chief Rents, which
have been duly answered or paid for the Space of three Years,
within twenty Years next before the first Day of this present
Session of the General Assembly, or shall be hereafter created,
as in Case of Rent reserved upon Lease, any Law or Usage to
the contrary notwithstanding.

And for making the renewal of Leases More easy for the fu-
ture. Be it Enacted by the Authority aforesaid, That in Case any
Lease shall be duly surrendered in order to be renewed, and a
new Lease made and executed by the Chief Landlord or Land-
lords the same new Lease shall without a Surrender of all or any
the under Leases be as good and valid to all Intents and Pur-
poses, as if all the under Leases derived thereout, had been like-
wise surrendered at, or before the taking of such new Lease, and
all and every Person and Persons in whom any Estate for Life'
or Lives, or for Years shall from Time to Time be vested by virtue
of such new Lease, and his her and their Executors and Admin-
istrators shall be intitled to the Rents Covenants and Duties,
and have like Remedy for recovery thereof and the under Lessees
shall hold and enjoy the demised Premises respectively, as if the
original Leases, out of which the respective under Leases are
derived had been still kept on Foet and coqtinued, and the Chief
Landlord or Landlords shall have and be intitled to such and
the same Remedy by Distress or Entry in and upon the demised
Premises, for the Rents and Duties reserved by such new Lease,
so far as the same exceed not the Rents, and Duties reserved in
the Lease, out of which such under Lease was derived, as they
would have had in case such former Lease had been still con-
tinued, or as they would have had in case the respective Under
Leases had been renewed under such new principal Lease any
Law, Custom or Usage to the contrary hereof notwithstanding.

And be it Enacted by the Authority aforesaid, That where any
Tenant for Life shall happen to die before or on the Day on which
any Rent was reserved or made payable upon any Demise or
Lease of any Lands Tenements or Hereditaments which Deter-
mined on the Death of such Tenant for Life, that the Executors
or Administrators of such Tenant for Life shall and may in an
Action on the Case recover of and from such under Tenant or
under Tenants of such Lands, Tenements or Hereditaments if
Buch Tenant for Life die on the Day on which the same was made



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J^iWS OP THE COLONY OF KEW. YOKK, C35

payable, the whole, or If before such Day, then a Proportion of
Buch Kent according to the Time such Tenant for Life lived of
the last Year, or Quarter of a Year, or other time in which the
said Sent was growing due as aforesaid, making all just Allow-
ances or a proportionable Part thereof respectively.

And tchereas the Possession of Estates in Lands Tenements
and Hereditaments is rendered very precarious by the frequent
and fraudulent Practice of Tenants, in attorning to Strangers
who claim Title to the Estates of their respective Landlord or
Landlords, Lessor or Lessors, who by that Means are turned out
of Possession of their respective Estates, and put to the Difficulty
and Expence of recovering the Possession thereof by actions or
Suits at Law, for remedy whereof.

Be it Enacted by the Authority aforesaid^ That all anfl every
such Attornment and Attornments of any Tenant or Tenants of
any Messuages Lands Tenements or Hereditaments shall be abso-
lutely null and void, to all Intents and Purposes whatsoever, and
the Possession of their respective Landlord or Landlords, Lessor
or Lessors shall not be deemed or construed to be any wise
changed altered or affected by any such Attornment or Attorn-
ments: Provided always, That Nothing herein contained shall
extend to vacate or affect any Attornment made pursuant to and
in consequence of some Judgment at Law, or Decree or Order of
a Court of Equity, or made with the privity and Consent of the
Landlord or Landlords, Lessor or Lessors, or to any Mortgagee
after the Mortgage is become forfeited.

And be it further Enacted by the Authority aforesaid. That
every Tenant to whom any Declaration in Ejectment shall be de-
livered for any Lands Tenements or Hereditaments shall forth-
with give Notice thereof to his or her Landlord or Landlords, or
his her or their Bailiff or Receiver under Penalty of forfeiting the
Value of three Years improved or Rack Rent of the Premises so
demised or holden in the Possession of such Tenant, to the Person
of whom he or she holds; to be recovered by Action of Debt to be
brought in any Court of Record within this Colony, wherein no
Essoin Protection or Wager of Law shall be allowed, nor any
more than one Imparlance.

And be it further Enacted by the Authority aforesaid, That
It shall be lawful for the Court where such Ejectment shall be
brought to suffer the Landlord or Landlords to make him her or
themselves Defendant or Defendants, by joining with the Tenant
or Tenants to whom such Declaration in Ejectment shall be de-



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630 LAWS OP THE COLONY OF NEW YORK.

liverc'd, In case lie or they shall appear but in Case such Tenant
or Tenants shall refuse or neglect to appear, judgment shall be
signed against the Casual Ejector, for want of such Appearance;
but if the Landlord or Landlords of any Part of the Lands Tene-
ments or Hereditaments for which such Ejectment was brought
shall desire to appear by himself or themselves and consent to
enter into the like Rule, that by the Course of the Court the
Tenant in Possession in Case he or she had appeared, ought to
have done; then tLe Court where such Ejectment shall be brought,
shall and may permit sUch Landlord or Landlords so to do, and
order a stay of Execution upon such Judgment against the casual
Ejector, until they shall make further Order therein, i • >

And to obviate some Difficulties that many Times occur in the
Recovery of Rents where the Demises are not by Deed. Be it
further Enacted hy the Authoritf/ aforesaidj That it shall be law-
ful to and for the Landlord or Landlords their Heirs or Assigns,



Online LibraryNew York (State)The colonial laws of New York from the year 1664 to the Revolution : including the charters to the Duke of York, the commissions and instructions to colonial governors, the Duke's laws, the laws of the Dongan and Leisler Assemblies, the charters of Albany and New York and the acts of the colonial le → online text (page 63 of 92)