must deliver the undertaking to the petitioner immediately after his approval thereof.

§ 1437.38 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, at any time within one year after the execution of the warrant, may 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 be found, with reasonable diligence, 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 shall 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.

§ 1438.39 Redemption 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, the person so filing a notice, or, if two

38 This section is the same as section 2256 of the Code of Civil Procedure. 39 This section is the same as section 2257 of the Code of Civil Procedure.

or more persons have filed such notices the one who holds the first lien, 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, may redeem for his own benefit in like manner as the lessee, his executor, administrator or assignee might have so redeemed. Where two or more judgment 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 deposit those sums with the judge or justice for the benefit of his predecessor or predecessors.

§ 1439.40 Effect of redemption upon lease. 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, upon complying with the terms of the lease, may 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.

§ 1440.41 Order to be made thereon; liability of persons redeeming. The person redeeming, as prescribed in the last three sections or the owner of the property so redeemed, may present to the judge or justice who issued the warrant, or to his successor in office, a petition duly verified setting forth the facts of the redemption and pray

40 This section is the same as section 2258 of the Code of Civil Procedure. 41 This section is the same as section 2259 of the Code of Civil Procedure.

ing 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 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 maanner 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.

§ 1441.42 Appeal. An appeal may be taken from a final order made as prescribed in this article 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.

§ 1442.43 Effect of appeal limited in certain cases. The issuing or execution of the warrant can not be stayed by such an appeal, or by the giving of an undertaking thereupon, otherwise than as prescribed in the next section. An appeal can not be taken to the court of appeals from a final determination of the appellate division of the supreme court upon such an appeal, unless the latter court by an order at the term of the appellate division where the final order is made, or the next term thereafter, allows it to be taken.

§ 1443.44 Warrants; how stayed on appeal. Where an appeal is taken fron a final order awarding delivery of possession to the petitioner which establishes that a lessee or tenant holds over after a

42 This section is the same as section 2260 of the Code of Civil Procedure. 43 This section is the same as section 2261 of the Code of Civil Procedure. 44 This section is the same as section 2262 of the Code of Civil Procedure.

default in payment of rent, or after the expiration of his term, or from an order or judgment affirming such final order, the issuing and execution of the warrant may be stayed by the order of the county judge, and in the city and county of New York by a justice of the supreme court, or in any case by the appellate court or a justice thereof, upon the appellant's giving the security required to perfect the appeal, and to 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, or in the city and county of New York by a justice of the supreme court, or in any case by the appellate court or a justice thereof, to the effect that if, upon the appeal, a final determination is rendered against the appellant, he will pay, if he holds over after a default in payment of rent, all rents 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 proceedings; or, if he holds over after the expiration of his term, that he will pay all costs and damages which the petitioner may suffer by reason of the stay herein provided for. The court or justice above referred to may grant such order with or without notice upon the filing of an undertaking approved by such court or justice in an amount equal to not less than three months' rent of the premises at the rate to which the appellant was liable as rent for the month immediately prior to the institution of the special proceeding. The petitioner, at any time before the appeal is actually heard, may apply to such court or justice to increase the security given by the appellant. Whenever in this section an undertaking is required to be given by the appellant, in lieu thereof, at his election, he may pay into court a sum of money equal to the amount of such undertaking. Where such appeal has been taken prior to September twenty-seventh, nineteen hundred and twenty, from a final order awarding delivery of possession to the petitioner on the ground that the tenant holds over after the expiration of his term, a stay may be granted provided such appeal be pending and the circumstances warrant the granting thereof.

§ 1444.45 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 dispossessed may also maintain an action to recover the damages which he has sustained by the dispossession.

§ 1445.46 Application of article; effect of final order. This article 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 person in possession of real property, the proceedings thereunder must be taken as prescribed in this article. A final order, made in a special proceeding taken as prescribed in this article, is not a bar to an action of ejectment to recover the property affected thereby.

§ 1446.47 How proceeding under this article may be stayed. Where a petition is presented, as prescribed in this article, 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 article;

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

45 This section is the same as section 2263 of the Code of Civil Procedure. 46 This section is the same as section 2264 of the Code of Civil Procedure. 47 This section is the same as section 2265 of the Code of Civil Procedure.