make an order directing him to make the security satis. factory to the court.

From Rule 83. And see 19, 20, and 25, of the R. S.

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$754. These provisions applicable in New-York to the chamberlain. Each provision of this title, relating to a county treasurer, applies to the chamberlain of the city of New-York, with respect to money paid into court, in an action triable in the city and county of New-York, or with respect to money, or a bond, mortgage, or other security, or public stock, representing money paid into court; except where special provision, with respect to the same, is otherwise made by law.

New.

TITLE IV.

Proceedings upon the death or disability of a party or the transfer of his interest.

SEC. 755. Action; when not to abate.

756. Proceedings upon transfer of interest, or devolution of lla bility.

757. Id.; when sole party dies and action survives.

758. Id.; when one of several parties dies.

759, 760. Id.; when part of cause of action survives.
761. When court may order action abated.

762. Special cases excepted.

763. Death of party after verdict, etc.

764. Action for a wrong not to abate after verdict, etc.
765. No verdict, etc., can be taken after a party's death.
766. Death, etc., of public officer or trustee.

755. Action; when not to abate. An action does not abate by any event, if the cause of action survives or continues.

Co. Proc., 121, first sentence. Moore v. Hamilton, 44 N. Y. 666; Livermore . Bainbridge, 49 id. 125; Wade v. Kalbfleisch, 58 id. 282; Atlantic Dock Co. r. Mayor, 53 id. 64; Arthur v. Griswold, 16 Abb. N. S. 235; Bond v. Smith, 4 Hun, 48; Mapes e. Snyder, 59 N. Y. 450.

756. Proceedings upon transfer of interest, or devolution of liability. In case of a transfer of interest, or devolution of liability, the action may be continued, by or against the original party; unless the court directs the person, to whom the interest is transferred, or upon whom the liability is devolved, to be

substituted in the action, or joined with the original party, as the case requires.

Co. Proc., 121, the third sentence. Arnold v. Keyes, 37 N. Y. Supr. 135; People v. Oswego, etc., 2 T. & C. 431; Lament v. Haight, 44 How. 1.

757. [Amended, 1879.] When sole party dies and action survives. In case of the death of a sole plaintiff (1) or a sole defendant,(2) if the cause of action survives or continues, the court must, upon a motion,(3) allow or compel the action to be continued, by or against his representative, or successor in interest. Id., second sentence, am'd. McCulloch e. Norwood, 58 N. Y. 562; Beach r. Reynolds, 53 id. 1. (1) Jarvis r. Felch, 14 Abb. 46; RidgeWay. Bulkley, 7 How. 269; Green v. Bates, id. 296; Banta v. Marcellus, 2 Barb. 373; Bain v. Pine, 1 Hill, 615; Reed v. Butler, 11 Abb. 123: Lynde . O'Donnell, 21 How. 31; Rogers v. Adriance, 22 id. 97; Lyons r. Third Av. R. R. Co., 7 Rob. 605; Robinson e. Brisbane, 7 Hun, 180. (2) Keene v. La Farge, 1 Bosw. 671; 16 How. 377; Hopkins v. Adanis, 5 Abb. 351; Mosely v. Mosely, 11 id. 105; Putnam v. Van Buren, 7 How. 31; Mosely. Albany N. R. R. Co., 14 id. 71; Yertore . Wiswall, 16 id. 8; Doedt v. Wiswall, 15 id. 128; Livermore t. Bainbridge, 49 N. Y. 125; Prouty v. Lake Shore, 52 id. 363; Leavey . Gardner, 63 id. 624. (3) Palmer v. Murray, 18 How. 546; Livingstone. Olyphant, 3 Rob. 639; Greene v. Bates, 7 How. 296; Taylor v. Taylor, 43 N. Y. 578.

§ 758. [Amended, 1877.] Id.; when one of several parties dies. In case of the death of one of two or more plaintiffs, or one of two or more defendants, if the entire cause of action survives to or against the others, the action may proceed in favor of or against the survivors.(1) But the estate of a person or party jointly liable upon contract with others shall not be discharged by his death, and the court may make an order to bring in the proper representative of the decedent, when it is necessary so to do, for the proper disposition of the matter; and, where the liability is sev eral as well as joint, inay order a severance of the action so that it may proceed separately against the representative of the decedent, and against the surviving defendant or defendants. (2)

2 R. S. 386,1 (2 Edm. 401). (1) Hackett v. Belden, 10 Abb. N. S. 123; 47 N. Y. 624; Williams v. Kent, 15 Wend. 361; Ryghtmyer v. Dunham, 12 d. 245; Taylor e. Church, 9 How. 190; 12 N. Y. Leg. Obs. 156; Dyckman v. Allen, 2 How. 17; Williamson v. Moore, 5 Sandf. 647; Bond v. Smith, 4 Hun, 48; Livingston v. Rendall, 59 Barb. 493; Arthur . Griswold, 60 N. Y 143; 16 Abb. N. S. 235; Livermore v. Bushnell, 5 Hun, 285. (2) See Wood v. Fisk, 63 N. Y. 245; Getty v. Binsse. 49 id. 385; Pickersgil v. Lahens, 15 Wall. 140.

759. Id.; when part of cause of action survives. In case of the death of one of two or more plaintiffs, or one of two or more defendants, if part only of the cause of action, or part or some of two or more distinct causes of action, survives to or against the others, the action may proceed, without bringing in the successor to the rights or liabilities of the deceased party; and the judgment shall not affect him, or his interest in the subject of the action. But where it appears proper so to do, the court may require or compel the successor, or a person who claims to be the successor, to be brought in as a party, upon his own application or upon the application of a party to the action.

Substitute for 2 R. S. 184, 185, portions of 2 108, 109, 115, 117, 120, and 121. Arthur e. Griswold, 60 N. Y. 143: Livermore v. Bushnell, 5 Hun, 235: Leggett v. Dubois, 2 Paige, 211; White v. Buloid, id. 475; Hoffman r. Treadwell, 6 d. 308; Halstead v. Cockroft, 49 How. 342.

case.

760. [Amended, 1879.] The same.-- In a specified in the foregoing sections of this title, where such a person applies in his own behalf, the court may direct that he be made a party, by amendment of the pleadings, or otherwise as the case requires. Where an application is made by the plaintiff, to bring in such a person as defendant, the court may direct that a supplemental summons issue, and that supplemental pleadings be made. Where an application is made by a defendant to bring in such a person, the court may, and where the protection of the applicant's rights re quires it, must, permit the defendant to commence a cross action for that purpose. The cross action must be brought in the same court, unless the order otherwise specially directs. If it directs that the action be commenced in another court, the latter court may, by order at any time after the cross action is commenced, remove to itself the original action, with like effect as if it had been brought therein. Unless the court otherwise directs, the original action and the cross action must be tried, and judgment rendered therein, as if they were one action.

Id.; (2 Edm. 191). See note to last section.

761. When court may order action abated. - At any time after the death of the plaintiff, or after the marriage of the plaintiff, where it affects the rights of either party, the court may, in its discretion, upon notice to such persons as it directs, and upon the applica tion of the adverse party, or of a person whose interest is affected, direct that the action abate, unless it is con

tinued by the proper parties, within a time specified in the order, not less than six months, nor more than one year, after the granting thereof.

Co. Proc., 121, fifth sentence, am'd. Mapes v. Snyder, 59 N. Y. 450; Nims v. Sabine, 44 How. 252; Cox v. N. Y. C., etc., 63 N. Y. 414; Livermore v. Bainbridge, 49 id. 125; Bainbridge v. Maller, 4 Hun, 674; McCulloch v. Norwood, 58 N. Y. 562; Bond v. Smith, 4 Hun, 48.

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§762. Special cases excepted. — The foregoing provisions of this title do not apply to a case, where special provision is otherwise made by law.

New.

If either

§ 763. Death of party after verdict, etc. party to an action dies, after an accepted offer to allow judgment to be taken, or after a verdict, report, or decision, or an interlocutory judgment, but before final judgment is entered, the court must enter final judg ment, in the names of the original parties; unless the offer, verdict, report, or decision, or the interlocutory judgment, is set aside.

2 R. S. 387, 4, am'd. Cox v. N. Y. C., etc., 63 N. Y. 414; Norton t. Wiswall, 14 How. 42; Ehle v. Moyer, 8 id. 244; Diefendorf v. House, 9 id. 243; Broas v. Mersereau, 18 Wend. 653; Webber's Executors v. Underhill, 19 id. 447; Burhans v. Burhans, 10 id. 602; Hays v. Thoma, 56 N. Y. 521.

764. Action for a wrong not to abate after verdict, etc. After verdict, report, or decision, in an action to recover damages for a personal injury, the action does not abate by the death of a party, unless the verdict, report, or decision is finally set aside. Unless it is finally set aside, the subsequent proceedings, including an ap peal from an order setting it aside, or from a judgment or order reversing or setting aside a judgment entered thereupon, are the same, as in a case where the cause of action survives.

Substitute for Co. Proc., 121, fourth sentence. Cox v. N. Y. U., 63 N. Y. 414; Wood v. Phillips, Il Abb. N. S. 1.

765. No verdict, etc., can be taken after a party's death. This title does not authorize the entry of a judgment against a party, who dies before a verdict, report, or decision is actually rendered against him. that case, the verdict, report, or decision is absolutely void.

? B. S. 387,5 (2 Edm. 402), am'd.

In

$766. Death, etc., of public officer or trustee. — Where an action or special proceeding is authorized or directed by law, to be brought by or in the name of a public officer, or by a receiver, or other trustee, appointed by virtue of a statute, his death or removal does not abate the action or special proceeding; but the same may be continued by his successor, who must, upon his application, or that of a party interested, be substituted for that purpose, by the order of the court, a copy of which must be annexed to the judgment-roll.

2 R. S. 388, 14; and L. 1832, ch. 295, 3 (3 Edm. 674), consolidated. Orser v. Glenville Woolen Co., 11 Abb. N. S. 85; s. c., 60 Barb. 371; People v. Oswego Court, 2 T. & C. 431; Griggs v. Griggs, 56 N. Y. 504; Manchester v. Herrington, 10 id. 164.

TITLE V.

Motions and orders generally.

BEC. 767. Definition of an order.

768. Id.; of a motion.

769. Motions in supreme court; where to be heard.
770. Motions in New-York city.

771. In absence of judge, motion may be transferred to another
Judge.

772, 773. What judges may make orders out of court, without notice.

774. Review of order made by a judge of another court.

775. When stay of proceedings not to exceed twenty days.

776. Subsequent application for order, after denial, etc., of prior application.

777. Id.; as to application for Judgment.

778. Penalty for violating last two sections.
179. Costs of a motion; how collected.

A direction of a court

$767. Definition of an order. or judge, made, as prescribed in this act, in an action or special proceeding, must be in writing, unless otherwise specified in the particular case. Such a direction, unless it is contained in a judgment, is an order.

Co. Proc.. 400, am'd. Bentley v. Jones, 4 How. 335; King v. Stafford, 5 id. 30: Howard r. Freeman, 6 Rob. 511; Duane v. North. R. R. Co., 4 How. 364; Hollman v. Barry, 2 Hun, 52; s. c., 4 T. & C. 253.