It was held at the circuit, that the warrant issued by the justice was void, and consequently, that it furnished no justification to the defendant. In order to affirm this ruling it is necessary to maintain either that the security given on bringing the appeal stayed the issuing of a warrant, or that by the operation of the appeal itself the proceeding was transferred to the county court, so that the justice could no longer act in it. These propositions will be considered in the order in which they are stated.
The question whether the issuing of a warrant was stayed by the security given, depends upon the construction of certain statutory provisions respecting summary proceedings to recover the possession of land, to which it becomes necessary to refer.
In 1849, an act was passed amending the revised statutes relating to summary proceedings, so as to confer jurisdiction of such proceedings upon justices of the peace. (Laws of 1849, p. 291, eh. 193.) One of the sections of said act pro*171vides that the proceedings before a justice of. the peace, may be removed by appeal to the county court, in the same manner, and with the like effect, and upon like security, as appeals from the judgments of justices of the peace in civil actions, but that in case of appeal by the tenant, in order to stay the issuing of a warrant or execution, security should also be given for the payment of all rent accruing or to accrue upon the premises, subsequent to the application to the justice. (§ 5, subd. 2.)' It is by virtue of the latter clause of the section, that the undertaking given in this case is claimed to have operated as a stay. The defendant’s counsel insists, however, that the provision as to a stay, does not apply to proceedings instituted against a tenant solely on the ground that he is holding over after the expiration of his term; and I am inclined to think, in view of the provisions of the Revised Statutes in pari materia, that the construction contended for by him is correct.
The Revised Statutes provide that summary proceedings to remove tenants may be resorted to in four distinct classes of cases : 1. Where the tenant holds over after the expiration of his term. 2. When he holds over after default in the payment of rent. 3. When the tenant has taken the benefit of an insolvent act, or of an act relieving him from imprisonment ; and 4. Where such person continues in possession of real estate which has been sold under execution against him, after title under such sale has been perfected. (2 B. S. 512, § 28.) Section 43 provides that whenever a warrant shall be issued for the removal of the tenant, the relation of landlord and tenant between the parties shall be deemed to be canceled and annulled. The next three sections provide for a stay of the issuing of the warrant in each of the last three clauses, on security being given by the tenant as required by the statute. In the case of a proceeding for the non-payment of rent, the tenant is to pay the rent due and the costs, or to give security for the payment of them in ten days ; and by an amendment adopted in 1857, if he does not *172within the ten days, produce to the magistrate satisfactory-evidence that the rent and costs have been paid, the warrant may issue at any time thereafter. (Laws of 1857, oh. 684, p. 510, § 4.) When the application is founded upon the fact that the tenant has taken the benefit of an insolvent act &c. the tenant must pay the costs and give security for the payment of the rent as it shall become due. And when it i's founded upon an alleged sale by execution, the occupant must pay the costs, file an affidavit that he claims possession by virtue of some title or right acquired after the premises were sold, or as guardian or trustee for another, and execute a bond to pay the costs which may be recovered against him in any ejectment that may be brought by the applicant within six months ; to pay the value of the use and occupation of the premises from the date of such bond, till the applicant shall recover possession in such ejectment; and not to commit waste. But no provision is made for staying the issuing of a warrant in the case of an application on the ground that the tenant is holding over after the expiration of his term. Section 47 provides for a certiorari from the Supreme Court, to review any adjudication made in such proceedings, but it directs that the proceeding shall not be stayed by such certiorari or any other writ or order of any •court or officer. Section 48 provides that whenever any such proceedings brought before the Supreme Court by certiorari shall be reversed or quashed, the court may award restitution to the party injured, with costs. And the 49th section provides that in all cases the prevailing party' shall recover costs, and may maintain an action to recover them; and if the proceedings be reversed or quashed, by the Supreme Court, the tenant may recover any damages he may have sustained by reason of such proceedings, with costs, in an action on the case. While, on the one hand, the stringency of these provisions evinces the design of the legislature to make the proceedings summary to which they relate, on the other hand, they attempt to protect the substantial rights *173of tenants, and they are severally applicable, as well to proceedings before justices of the peace under the act of 1849, as to those instituted before any of the other magistrates, to whom jurisdiction was given by the Revised Statutes. The jurisdiction of justices of the peace, is conferred, not by an independant statute, but by an amendment of section 28 of the Revised Statutes, the effect of which is to include justices of the peace among the magistrates who are vested with jurisdiction by. that section. But the provisions of the act of 1849, respecting a stay of the issuing of a warrant, apply exclusively to proceedings before justices of the peace. If they have the effect which the counsel for the plaintiff attributes to them, it follows that a tenant holding over after the expiration of his term, if proceeded against before a justice of the peace, may stay the issuing of a warrant after judgment against him, but not if he is proceeded against before any of the other classes of magistrates having a co-ordinate jurisdiction. And if this be so, the right is of little value to tenants proceeded against on that ground, since it is in the power of landlords to deprive them of it, by instituting proceedings before some magistrate other than a justice of the peace. The better construction seems to be that the section of the act of 1849, above referred to, does not create a right to stay the issuing of the warrant in a case where it did not previously exist, but it merely provides that in order to exercise the right to stay, in cases where it previously existed, security shall be given as therein prescribed. The language is, not as in the sections of the Revised Statutes in pari materia ; (2 B. S. p. 515, §§ 44, 45, 46 ;) the issuing of the warrant “shall be stayed” if the tenant shall give the security prescribed, but it is “ in order to stay the issuing of such warrant ” security shall be given, &c. This implies a right to stay, already existing, and it prescribes the form of security to be given in order to exercise such right. It is by no means clear that the section supercedes the provisions of the Revised Statutes, even as to the form of security, or *174that it does any thing more than to require an additional security in the case of an appeal; but it is not necessary to decide that point.
The construction above adopted gives full effect to the language of the section; leaving it to operate on the three classes of cases in which a right to stay the issuing of a warrant is given to the tenant, by the Revised Statutes.
The proposition that the appeal, of itself, deprived the justice of authority to issue a warrant, requires but a moment’s consideration. If the legislature intended that an appeal should have that effect, it was useless and unmeaning to enact that in order to stay the issuing of a warrant, security should be given, in addition to that required on appeal. The appellate court could not issue a warrant upon the judgment of the justice, and if the justice could not do it, by reason of the appeal, the giving of further security to prevent it would be an idle ceremony. I apprehend that an appeal taken by virtue of this statute, of itself, merely transfers the proceedings to the county court for the purpose of review, and does not affect the power of the justice to issue a warrant to enforce his judgment.
If these views are correct, the warrant was regular and valid, and the defendant having been put into possession of the premises by virtue of it, was justified in using so much, force as was necessary to defend himself and maintain his possession.
But as the construction of the statute is not altogether free from doubt, and there are other views of the case leading to the conclusion above stated, I will briefly consider them:
If it be assumed that the justice had not power to issue a warrant after the appeal, nevertheless his judgment, until reversed or set aside, was of force as an adjudication, and it determined that the lease had expired, and Harpending was entitled to the possession of the premises. The fact that an appeal had been taken, to another court, did not affect the conclusive nature of the judgment as a bar, while it remained *175unreversed. (Harris v. Hammond, 18 How. Pr. 123.) The counsel for the defendant requested the court to charge to that effect, hut the learned judge declined, and charged that the judgment ceased to he res judicata when the appeal was perfected with security. The point was material to the defendant, for even if he was stayed from suing out a warrant on the judgment, yet in this collateral action he was entitled to use the judgment as evidence of his right to the possession, and it was important to him to maintain that he had such right. I conceive the ruling on this point was erroneous.
But let it be further assumed, not only that the warrant was void, but also that the judgment had ceased to be a bar, and that it was an open question whether the tenancy had terminated or was still in force ; how then stands the case ? The landlord, and the owner in fee, claiming that the term had expired, enters without process and without force, during the temporary absence of the tenant, but the tenant attempting soon after to oust him by violence, the landlord resorts to force to maintain his possession. Which committed the first assault ? There is not a particle of evidence that the plaintiff was entitled to the premises. His lease is not shown, and nothing appears on that point, except that he claimed that the term continued till. April, 1866, and the defendant disputed the claim. The defendant, when he entered, was not guilty of an assault, or a breach of the peace. Even if it be assumed that he was a trespasser, his position was very different from that of a mere stranger. He owned the premises in fee) and claimed to be entitled to the possession. Under these circumstances, the plaintiff had no right to take the law into his own hands, and attempt to dislodge the defendant by force, although his intrusion was but recent. The defendant, being in the actual possession, had a right to maintain it, and to use force, if necessary, for that purpose. This precise point was adjudged by this court in the case of Parsons v. Brown, (15 Barb. 590.)
The defendant being justified in using so much force as was *176necessary to defend himself and maintain his possession, the only question for the jury, in any view of the case, was whether he used an excess of force.
[Monroe General Term, June 3, 1867.The result is, that a new trial should he ordered.
Ordered accordingly.
J. C. Smith, E. D. Smith and Johnson, Justices.]