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TITLE 3

TITLE III.

Payment of money into court, and care and disposition thereof.

SECTION 743. Party bringing money into court is discharged.

744. General rules may regulate concerning payment into court.

745. Money to be paid to county treasurer, and securities taken in his name.
746. Funds; where and how deposited or invested.

747. Powers of supreme court as to transfer, etc., to and investment by
guardian, etc.

748. When other courts have like power.

749. Powers of certain officers, touching securities, etc.

750. Provisions relating to death, removal, etc., of officer.

751. Authority for payment of money by bank or trust company.

752. How county treasurer to keep his accounts.

753. County treasurer to report annually to the court.

754. These provisions applicable in New York to the chamberlain.

bringing money into court is discharged. General

§ 743. A party bringing money into court, pursuant to the direction Party of the court, is discharged thereby from all further liability, to the extent of the money so paid in. § 744. The general rules of practice may contain regulations, concerning the payment of money into court, in an action, and the care rules may and disposition thereof, which shall govern, where provision is not regulate otherwise made by law.

concerning payment into court.

Money to

county

rities taken

§ 745. Unless the court otherwise specially directs, money, paid into court, must be paid, either directly, or by the officer who is required by be paid to law first to receive it, to the county treasurer of the county, where the treasurer, action is triable. Where it is paid to an officer, other than the county and secu treasurer, he must pay it to the county treasurer, within four days after in his he receives it. In the city of New-York, he must pay it to the cham- name. berlain, within two days after he receives it. A bond, mortgage, or other security, or a certificate or transfer of stock, taken upon the investment of money paid into court, must be taken to the county treasurer of the county where the fund belongs, in his name of office; or to such other county treasurer, as the court specially directs. But this and the next section do not prevent the court, upon the application of a party to an action, from directing in what manner or place, money, paid into court in the action, shall be deposited or invested.

vested.

§ 746. Provision may be made, in the general rules of practice, for Funds; the deposit, in a bank or trust company, of money paid into court; for where and how depos the investments thereof in the public debt of the United States, or of ited or ina State, or for loaning it upon approved interest-bearing mortgages upon real property; and for the transferring or disposing, from time to time, of the money, or any investment, or security. But the money must be deposited or loaned in the county where the fund belongs, where that can be done conveniently and safely, and with advantage to the parties interested.

supreme

etc., to and

§ 747. The supreme court may direct that money, paid into that Powers of court, in an action brought therein, or a bond, mortgage, or other secu- court as to rity, or public stock, in the possession or under the control of a county transfer, treasurer, which represents money so paid in, be transferred and deliv- investment ered to a general or special guardian, committee, or other trustee, upon by guardi his giving, or if he has given, security, satisfactory to the court, for the faithful execution of his trust; or that a bond, mortgage, or other

an, etc.

TITLE 3.

When

other courts

have like

power.

Powers of certain offi

ing securities, etc.

security, or public stock, be taken by and in the name of the guardian, committee, or other trustee; and be collected, invested or loaned, as the court directs, or as prescribed in the general rules of practice.

§ 748. Each superior city court, each county court, and the marine court of the city of New-York, possesses, with respect to money, paid into that court, in an action brought therein, or a bond, mortgage, or other security, or public stock, in or upon which it has been invested or loaned, the power and authority conferred upon the supreme court, by the last section.

§ 749. A county treasurer, or other officer, or a guardian, committee, cers, touch or other trustee, in whose name is taken a bond, mortgage, or other security, or public stock, representing money, paid into court, in an action; or to whom stock or a security, or an account, deed, voucher, receipt, or other paper, representing or relating to such money, is transferred, delivered, made, or given, pursuant to law, is vested with title for the purposes of the trust; and may bring an action upon or in relation to the same, in his official or representative character.

Provision

relating to

of officer.

§ 750. On the expiration of the official term of a county treasurer, death, re- or where a vacancy occurs in his office, by death or otherwise, all pubmoval,etc.. lic stock, bonds, mortgages, and other securities held by him, as prescribed in this title, vest in his successor in office; and all money deposited, as prescribed in this title, in a bank, trust company or other depository, to his credit, vests in, and must be carried to, the account of his successor in office.

Authority for payment of

money by trust com

bank or

pany.

How county treasurer to

keep his accounts.

County treasurer

to report annually to the court.

§ 751. Money, paid into court, in an action, and deposited in a bank or trust company, to the credit of a county treasurer, shall not be paid out, without the production of a certified copy of an order of the court, for that purpose, countersigned by the judge, by whose direction it is made.

§ 752. The accounts of a county treasurer, with respect to money received by him, as prescribed in this title, with each bank or trust company, in which it is deposited, must be kept, so as to show, in the cash-books of the bank or company, and in the books of the county treasurer, in what particular action, or on what account, each item of money credited or charged, was deposited or paid out.

§ 753. A county treasurer, who has, in his possession or under his control, money, bonds, mortgages, or other securities, or public stock, as prescribed in this title, must, once in each year, at the time prescribed by special order, or by the general rules of practice, make a report to the court, into which the money was paid, containing a statement of his accounts for the preceding year, or since the last account was rendered, and of the funds and securities under his control, relating to the money paid into that court. The statement must show, as to each action separately, the amount on hand uninvested; the time when each sum of money was received; the time, amount, and other description of each payment, investment, or loan; the amount deposited in each bank or trust company; and the balance on deposit therein; and also all public stock, bonds, mortgages and other securities, representing the remainder of the fund. The statement must be accompanied with a certificate of the proper officer of each bank or trust company, in which a deposit is made, to the effect, that the total amount, stated to be remaining on deposit, is actually in that bank or company, placed to the credit of the county treasurer, in the action, and not mingled with any other account. If the court, at any time, deems the security given by the county treasurer insufficient to protect

the funds and securities in his hands and under his control, it must make an order directing him to make the security satisfactory to the court.

TITLE 4.

visions

to the

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

lain.

TITLE IV.

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

SECTION 755. Action; when not to abate.

756. Proceedings upon transfer of interest, or devolution of liability.
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. An action does not abate by any event, if the cause of action Action; survives or continues.

when not to abate.

transfer of devolution

§ 756. In case of a transfer of interest, or devolution of liability, the Proceedaction may be continued by or against the original party; unless the ings upon court directs the person, to whom the interest is transferred, or upon interest, of whom the liability is devolved, to be substituted in the action, or of liability. joined with the original party, as the case requires.

party

§ 757. In case of the death of a sole plaintiff, or a sole defendant, Id.; when if the cause of action survives or continues, the court must, upon sole pur a motion, allow or compel the action to be continued, by or against action surhis representative, or successor in interest.

vives.

eral parties

§ 753. In case of the death of one of two or more plaintiffs, or one Id. ; when of two or more defendants, if the entire cause of action survives to or one of sev against the others, the action may proceed in favor of or against the dies. survivors. 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, when the liability is several as well as joint, may order a severance of the action so that it may proceed separately against the represen

TITLE 4.

Id.; when part of

cause of

vives.

tative of the decedent, and against the surviving defendant or defend

ants.

§ 759. 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 action sur 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 to 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.

The same.

When

court may order action abated.

Special

cases ex

cepted.

Death of

verdict,

etc.

§ 760. In a case 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 requires 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.

§ 761. 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 application of the adverse party, or of a person whose interest is affected, direct that the action abate, unless it is continued 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.

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

§ 763. If either party to an action dies, after an accepted offer to party after 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 judgment, in the names of the original parties; unless the offer, verdict, report, or decision, or the interlocutory judgment, is set aside.

Action for a wrong not to

verdict,

§ 764. 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 abate after party, unless the verdict, report, or decision is finally set aside. Until it is finally set aside, the subsequent proceedings, including an appeal 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

etc.

No verdict,

taken after

case where the cause of action survives.

§ 765. This title does not authorize the entry of a judgment against etc., can be a party, who dies before a verdict, report, or decision is actually rendered against him. In that case the verdict, report, or decision is absolutely void.

a party's

death,

So in the original.

TITLE 5.

Death, etc.,

officer or

trustee.

§ 766. 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 of public 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.

TITLE V.

Motions and orders generally.

SECTION 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 county judge.

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

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

777. Id.; as to application for judgment.

778. Penalty for violating last two sections.

779. Costs of a motion; how collected.

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

Id.; of a motion.

cour

heard.

§ 768. An application for an order is a motion. §769. A motion, upon notice, in an action in the supreme court, Motions in must be made within the judicial district, in which the action is tria- opreme ble, or in a county adjoining that in which it is triable; except that where to be where it is triable in the first judicial district, the motion must be made in that district; and a motion, upon notice, cannot be made in that district in an action triable elsewhere. But this section does not apply to a case, where it is specially prescribed by law that a motion may be made in the county, where the applicant, or other person to be affected thereby, or the attorney, resides.

§ 770. In the first judicial district, a motion which elsewhere must Motions in be made in court, may be made to a judge out of court, except for a city

new trial on the merits.

New York

motion

§ 771. Where notice of a motion is given, or an order to show cause In absence is returnable, before a judge, out of court, who, at the time fixed for of judge, the motion, is or will be absent, or unable, for any other cause, to hear may be it, the motion may be transferred, by his order, made before or at that transferred time, or by the written stipulation of the attorneys for the parties, to judge. another judge, before whom it might have been originally made.

to another

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