ment as to the price of such lands then existed, in appraising said lands and the damages the said owners thereof should individually sustain by reason of their appropriation to the use of said company, in the same manner as the names of the persons were then drawn for juries in courts of record. And whereas, the said sheriff, in pursuance of such directions, on the 21st day of April, did give such public notice for more than thirty days, in manner and form as therein directed, in one of the newspapers printed in said county, called the Washington County Post, and therein appointed the 24th day of May, 1847, at ten o'clock in the forenoon, at the clerk's office of said county, as the time and place of drawing such jury; at which time and place, the said judge and Henry Shepherd, then being the clerk of said county, attended; and in pursuance of such notice, drew the names of twelve persons as such jury, in the same manner as the names of persons were then authorized by law to be drawn for jurors in courts of record, who were duly qualified, and to whom no objections were made, and neither of them resided in any town through which the said rail road passes, or was of kin to any of the said owners claiming damages, or interested in the said rail road, or of kin to those who were interested in said rail road, or said damages. And whereas the said judge, on the 5th day of July, 1847, in pursuance of the act entitled 'an act in relation to the judiciary,' passed May 12th, 1847, did order that the said matter, and all proceedings to be had therein, be transferred to Martin Lee, Esq., who was elected to discharge the duties of county judge of said county, on giving one day's notice of said order; which notice was duly given as therein required. And whereas, the said Martin Lee having taken jurisdiction of said matter, did on the 15th day of July, 1847, by his warrant in writing, duly issued for that purpose, direct said sheriff to summon said jury, and appoint the 10th day of August, 1847, at the hotel kept by Mr. Washburn at Fort Edward, in said county, at 11 o'clock in the forenoon, as the time and place for said twelve persons to be summoned by the said sheriff, to appear as such jury; at which time and place, the undersigned judge appeared, and Daniel T. Payn, Esq., sheriff of the said county, and the said jury wno had been duly summoned by the said sheriff also appeared, and in the presence of the parties the said judge duly drew by lot from the said names of the said twelve persons six, who were qualified, and were free from all exceptions, and who were then and there duly sworn well and truly to appraise the lands of certain owners situate along and adjoining the line of the rail road of said company, as then located in the county of Washington, with whom a disagreement as to the price of such lands then existed, and the damages the said owners should sustain by reason of the appropriation of said lands to the use of said company, and a true verdict therein give according to evidence; the names of such jurors so sworn as aforesaid, are hereinafter mentioned. And thereupon the said matter and proceedings were duly adjourned until the 22d day of September then next, at 2 o'clock P. M. at Bordwell's tavern, near Comstock's landing, in the town of Fort Ann, in said county; at which last mentioned time and place, the undersigned judge appeared, and the said jurors and parties also appeared, and such proceedings were thereupon had that the said matter and proceedings were further adjourned until the 16th day of November then next, at 9 o'clock in the forenoon, at the Phoenix hotel in the town of Whitehall, in the said county; at which last mentioned time and place, the undersigned judge appeared, and the said jurors and parties also appeared; and the said jurors were then and there duly sworn well and truly to appraise the lands of the said John P. Adams, situate along and adjoining the line of the rail road of said company, as then located in the town of Whitehall in said county, and the damages the said John P. Adams should sustain by reason of the appropriation of the said lands to the use of the said company, and a true verdict therein give according to evidence. And the said jurors having heard the proofs and allegations of the parties, which were delivered in open court, and in the presence of said parties, a majority of said jurors so sworn as aforesaid, did then and there on the 17th day of November, 1847, duly make up and deliver to the said judge their verdict and award in writing, appraising the said lands and damages aforesaid of the said John P. Adams, at the sum of $350,00; which verdict is in the words and figures following, viz: 'In the matter of the Saratoga and Washington Rail Road Company and John P. Adams. We whose names are hereunto subscribed, and seals affixed, being a jury duly elected, tried and sworn before the Hon. Martin Lee, judge of the county courts in and for the county of Washington, in pursuance of the act entitled 'an act to incorporate the Saratoga and Washington Rail Road Company,' to appraise the lands of the said John P. Adams, situate along and adjoining the line of the rail road of said company, as at present located in the town of Whitehall, in said county, and the damages the said John P. Adams shall sustain by reason of the appropriation of said lands to the use of said company, having heard the proofs and allegations of the parties, do, upon our oaths, appraise the same at $350,00; which said lands are described as follows, viz: All that certain piece of land situate on the farm now occupied by the said Adams, in the town of Whitehall, in said county, and being that part included within the two outward lines of the rail road of the Saratoga and Washington Rail Road Company, as surveyed by James B. Sargent, engineer, in 1847, being a strip two rods in width on each side of the central line of said road, and containing ninety-nine one hundredths of an acre of land. Witness our hands and seals this 17th day of November, 1847. Le Roy Morey, [L. S.] C. V. K. Woodworth, [L. S.] Archibald Moore, [L. s.] Ansell Roberson, [L. s.] John J. Launouth, [L. S.] Pardon Bassett, [L. s.]' And the same was duly certified by the said judge, and filed in the office of the clerk of the said county. And whereas, due proof has been given to the said judge within thirty days after such assessment, that the amount of the same has been deposited to the credit of the said John P. Adams, by said company, in the Bank of Whitehall, being the place directed by said judge for such deposit; and that all expenses have been fully paid, and at least fourteen days' notice of the time and place of such assessment, was duly given to said John P. Adams; and all the requirements of the said acts having been fully complied with on the part of said company. Now, therefore, I, the said judge, in compliance with said acts, do order and decree, that the said assessments and proceedings be, and the same are in all respects, hereby ratified and confirmed. To the end that after this decree is recorded in the clerk's office of the said county, the said corporation shall be possessed of the premises and real estate above described in the verdict of said jury, and may enter upon and take possession and use the same for the purposes of said rail road, agreeably to the provisions of the several acts aforesaid. In witness whereof, I have hereunto put my hand and seal this 11th day of December, A. D. 1847. Martin Lee, county judge of Washington county." No. 78. EXCEPTION OF A RIGHT OF WAY RESERVED TO THE LESSOR THROUGH THE DEMISED PREMISES, TO ANOTHER LOT OF THE LESSOR. Excepting and reserving in and out of the hereby demised premises, to the said party of the first part, his heirs and assigns, a right of way, as well a foot way as a horse way, and a way for his and their carts, carriages and servants, in, out and through the hereby demised premises, during the said term, and which said way is described as follows: [here set out the description of it.] NOTE to No. 76 and 78. If the lessor demises premises which do not touch a public road, but are surrounded in whole by his own land, the law grants a way of necessity through the lessor's land. The proper way, in such a case, is for the lessor, at the time he makes the lease, to designate a way to the lessee. The same principle applies when the piece of land is surrounded in part by the lands of the grantor, and in part by lands of a third person. (Holmes v. Seeley, 19 Wend. 507. N. Y. Trust Co. v. Milnor, 1 Barb. Ch. 354.) For an exception and reservation of a right of way, see Jackson v. Allen, 3 Cowen, 221. LANDLORD AND TENANT. No. 79. LEASE WITH SPECIAL COVENANTS. ......... in the year of our Lord one of the first part, and day of....... .......) This indenture, made the thousand eight hundred and ......, of the second part. Witnesseth: that the said part of the first part, for and in consideration of the rents, covenants and agreements hereinafter mentioned, reserved and contained, on the part and behalf of the said part.... of the second part, .... executors, administrators and assigns, to be paid, kept and performed, ha.... granted, demised and to farm letten, and by these presents do.... grant, demise and to farm let, unto the said part.... of the second part, executors, administrators and assigns, all ...... ... day of.... ........ ...... To have and to hold the said above mentioned and described premises, with the appurtenances, unto the said part.... of the second part, .... executors, administrators and assigns, from the one thousand eight hundred and ........, for and during, and until the full end and term of ...... thence next ensuing, and fully to be complete and ended, yielding and paying therefor unto the said part.... of the first part, ...... heirs or assigns, yearly, and every year during the said term hereby granted, the yearly rent or sum of lawful money of the United States of America, in equal yearly payments, to wit: on the first day of . . . . . . ., in each and every of the said years. Provided always, nevertheless, that if the yearly rent aboved reserved, or any part thereof, shall be behind or unpaid on any day of payment whereon the same ought to be paid as aforesaid; or if default shall be made in any of the covenants herein contained, on the part and behalf of the said part.... of the second part, executors, administrators and assigns, to be paid, kept and performed, then and ......... ........ .... .... from thenceforth it shall and may be lawful for the said part.... of the first part, or assigns, into and upon the said demised premises, and every part thereof, wholly to re-enter and remove all persons therefrom, and the same to have again, re-possess and enjoy, as in ........ their first and former estate, any thing hereinbefore contained to the contrary thereof in anywise notwithstanding. And the said part.... of the second part, for ........ heirs, executors and administrators, do.... covenant and agree to and with the said part.... of the first part, heirs and assigns, by these presents, that the said part.... of the second part, ........ executors, administrators or assigns, shall and will yearly and every year during the said term hereby granted, well and truly pay, or cause to be paid, unto the said part.... of the first part, ........ heirs or assigns, the said yearly rent above reserved, on the days and in manner limited and prescribed as aforesaid, for the payment thereof, without any deduction, fraud or delay, according to the true intent and meaning of these presents. And also, that ... will not, at any time during the term hereby granted, use or suffer to be used, the said premises or any part thereof, for any business or purpose other than that herein before mentioned, without the consent in writing of the said part.... of the first part, ...... heirs or assigns, first had and obtained; also, that ........ ....... will not let or underlet the said premises or any part thereof, nor assign these presents without the like written consent. .... And also, that if the yearly rent above reserved, or any part thereof, shall be behind or unpaid on any day whereon the same ought to be paid as aforesaid, or if default shall be made in any or either of the covenants or agreements herein contained on their part, then or in either of such cases it shall and may be lawful for the said part.... of the first part, ..... heirs or assigns, to re-enter said demised premises, without process of law, using all necessary force therefor without liability to prosecution, and may thereupon, as the agent or attorney of the parties of the second part, their executors, administrators or assigns, hereby for that purpose irrevocably constituted and appointed, rent the same, applying the avails first to the payment of the expenses of re-entry, and then to the payment of the rent and other moneys due by these presents, and the balance, if any, to pay over to the said part.... of the second part, signs; and also, that on and after the the expiration of the term hereby granted, ... executors, administrators or asday of........ next, previous to shall and will permit a bill or notice to be put up on the said premises, and there remain; and shall and will at all reasonable times in the day, freely permit persons to see and examine the said premises, in order to the selling or renting of the same, until the same be sold or rented. And it is hereby further covenanted and agreed, by and between the said parties, that the said party of the first part shall, during the said term, use and employ on the said demised premises, all the dung and compost made on the same premises, and carry it out and spread it on the land in a good husbandlike manner, on such parts of the said premises where it is most needed; and after the expiration of the said term, and until the ......... day of ........., it shall be lawful for the said party of the second part, his executors, administrators and assigns, shall continue to hold and enjoy such arable land on the said premises as is sowed to winter crops of wheat or rye, for the purpose of having the going off crop of wheat or rye therefrom; and the said party of the second part may use such part of the barn on the said premises as may be necessary to secure and thrash out said crops, [or such other agreement with respect to the outgoing crop as shall be made, but be sure and provide for it.] ...... ... executors, And that on the last day of the said term, or other sooner determination of the estate hereby granted, the said part....of the second part, administrators or assigns, shall and will peaceably and quietly leave, surrender and yield up unto the said part .... of the first part, singular the said demised premises. And the said part.... of the first part, for ....... ........ heirs or assigns, all and heirs, executors and ad ministrators, do.... covenant and agree to and with the said part.... of the second part, executors, administrators and assigns, by these presents, that the said part.... of the second part, ........ executors, administrators or assigns, paying the said yearly rent above reserved, and performing the covenants and agreements aforesaid on ........ their part, the said part.... of the second part, executors, administrators and assigns, shall and may at all times during the said term hereby granted, peaceably and quietly have, hold and enjoy the said demised premises, without any manner of let, suit, trouble or hinderance of or from the said part.... of the first part, heirs or assigns, or any other person or persons whomsoever. [Here insert such other special covenants as may be agreed on, and insert a provision in case of the buildings being destroyed by fire, or the elements.] In witness whereof, &c. (See Covenants.) NOTES. (1.) Previous to 1846 it was usual in leases to reserve a right of re-entry to the landlord, in case no sufficient distress could be found on the premises to satisfy the rent due. The act of 1846, p. 369, abolished distress for rent, and substituted a fifteen days' notice from the landlord, of his intention to re-enter, for proof of a want of sufficient distress. In leases made since the abolishing of the remedy by distress, the clause with respect to distress is omitted. (See Van Rensselaer v. Snyder, 3 Kernan, 299; Williams v. Porter, 2 Barb. S. C. R. 316.) (2.) If the lease or grant be of agricultural land, and reserve a rent or service of any kind, it is void if it be for a longer period than twelve years. (Constitution, Art. 1, § 14.) (3.) In lieu of the remedy by distress, leases now frequently contain a chattel mortgage of specified articles, as in No. 79. To be valid against creditors and subsequent purchasers, it should be filed as required by law. (L. of 1833, ch. 279, § 1, 2, 3. 3 R. S. 233, 5th ed.) (4.) A parol lease, for a term not exceeding one year, is valid; and it is valid though made to take effect at a future day. (2 R. S. 134, § 6. Young v. Dake, 1 Seld. 463. Taggard v. Roosevelt, 2 Smith's Com. Pl. R. 100, overruling Croswell v. Crane, 7 Barb. 191.) (5.) Agreements for the occupation of lands or tenements in the city of New York, which do not particularly specify the duration of such occupation, are deemed valid until the 1st day of May next after the possession under the agreement, and the rent, unless otherwise expressed, is payable at the usual quarter days. (L. of 1820, p. 178, § 4. 1 R. S. 744, § 1. 8 id. 34, 5th ed.) (6.) Gas fixtures and sitting stools, when placed by a tenant in a shop or store, although fastened to the building, are not fixtures, as between the tenant and his landlord. (Lawrence v. Kemp, 1 Duer, 363.) (7.) The landlord is in no case bound to repair unless by force of an express covenant or contract. (Howard v. Doolittle, 3 Duer, 464.) Hence the necessity for providing for all contingencies by appropriate covenants. The lease should contain a provision in relation to fixtures, if the parties wish to have a rule different from that established by law. |