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comptroller or to the court at such time and in such de. tail as may be required. [In effect May 17, 1892.]

§ 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 er the transfer of his interest.

Bag. 755. Action; when not to abate.

756. Proceedings upon transfer of interest, or devolution of He 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.
781. When court may order action abated

762. Special cases excepted.

763. Death of party after verdict, etc.

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

§ 755. [Amended, 1891.] Action; when not to abate. An action does not abate by any event, if the cause of action survives or continues. A special proceeding does not abate by any event, if the right to the relief sought in such special proceeding survives or continues, but this provision as to special proceeding applies only to cases where a party dies after this act takes effect.

§ 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.

S757. [Amended, 1891.] When sole party dies and action survives.- In case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued, by or against his representative or successor in interest. In case of the death of a sole party to a special proceeding after this act takes effect, if the right to the relief sought in such proceeding survives or continues, the court must, upon a motion, allow or compel such proceeding to be continued by or against his representative or successor in interest. This provision as to a special proceeding does not apply where provision for such continuance has been otherwise made by law.

§ 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 dis position of the matter; and, where the liability is several as well as joint, may order a severance of the astion so that it may proceed separately against the rep resentative of the decedent, and against the surviving defendant or defendants.(2)

R. 3. 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 1d. 245; Taylor e. Church, 9 How. 190; 12 N. Y. Leg. Obs. 156; Dyck mano. Allen, 2 How.17; Williamson 2. Moore, 5 Sandf. 547; Bond . Smith, 4 Bun, 48; Livingston v. Rendall, 59 Barb. 493; Arthur . Griswold, 60 N. Y. 143; 16 ADD. N. S. 235; Livermore . Bushnell, 5 Hun, 255, (2) Bee Wood r. Fisk, 63 N. Y. 245; Getty v. Binzae, 49 d. 385; Pickersg . Laheus, 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 108, 109, 115, 117, 120, and 121. Arthur v. Griswold, 60 N. Y. 143; Livermore v. Bushnell, 5 Hun, 285; Leggett v. Dubois, 2 Paige, 211; White v. Buloid, id. 475; Hoffman . Treadwell, 6 id. 308; Halstead v. Cockroft, 49 How. 342.

§ 760. [Amended, 1879.] The same. 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 sup. plemental 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.

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 plaintif, 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. U., etc., 63 N. Y. 414; Liver more . Bainbridge, 49 id. 125; Bainbridge v. Maller, 4 Hun, 674; MeCulloch v. Norwood, 58 N. Y. 562; Bond v. Smith, 4 Hun, 48.

§ 762. Special cases excepted.

The foregoing pro visions of this title do not apply to a case, where spe cial provision is otherwise made by law.

Now.

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.

1 R. 8. 387, 14, am'd. Cox v. N. Y. C., etc., 63 N. Y. 414; Norton . 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. 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, but the subsequent proceedings are the same as in a case where the cause of action survives. And in case said verdict, report or decision is reversed upon questions of law only, said action does not abate by the death of the party against whom the same was rendered.*

See Kelsey v. Jewett, 34 Hun, 11; Cox v. N. Y. C., 63 N. Y. 414; Wood v. Phillips, 11 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 judg ment against 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.

2 R. S. 387, 25 (2 Edm. 402), am'd.

*Last sentence in effect Sept. 1, 1890.

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. 8. 85; s. c., 60 Barb. 371; Poople 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.

SEC. 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 dental, etc., of prior application.

777. Id.; as to application for Judgment.

778. Penalty for violating last two sections.

779. Costs of a motion; how collected.

§ 767. Definition of an order. A direction of a court 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, 51d. 30; Howard v. Freenian, 6 Rob. 511; Duane v. North. R. R. Co., 4 How. 364; Hoffman v. Barry, 2 Hun, 52; 8. c., 4 T. & C. 253.

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769. [Amended, 1879.]

An application for an order

Motions in supreme

court, where to be heard. -A motion, upon notice, in

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