thirty-four of this act for the sale by a sheriff of real property, by virtue of an execution, unless the property is situated wholly or partly in a city in which a daily, semi-weekly or tri-weekly newspaper is published, and, in that case, by publishing notice of the sale in such a daily, semiweekly or tri-weekly paper, at least twice in each week for three successive weeks, or in a weekly paper published in a city, once in each of the six weeks, immediately preceding the sale, or in the counties of New York and Kings in two such daily papers. If the officer appointed to make such sale does not appear at the time and place, where such sale has been advertised to take place, then in that case the attorney for the plaintiff may postpone or adjourn such sale, not to exceed four weeks, during which time such attorney may make application to the court to have another person appointed to make such sale. Notice of the postponement of the sale must be published in the paper or papers wherein the notice of sale was published. The terms of the sale must be made known at the sale, and if the property, or any part thereof, is to be sold subject to the right of dower, charge or lien, that fact must be declared at the time of the sale. If the property consists of two or, more distinct buildings, farms or lots they shall be sold separately, unless otherwise dered by the court; and provided, further, that where two or more buildings are situated on the same city lot, they be sold together. From 2 R. S. 326, Part 3, ch. 5, tit. 3, §§ 56 and 57 (2 Edm. 336). Am'd by ch. 682 of 1881; ch. 263 of 1894; ch. 152 of 1896 and ch. 662 of 1898. See rules 62, 67 (Sup. Ct.). See also 1087, Consol. Act. § 1679. Purchases by certain officers prohibited. Penalty. A commissioner, or other officer making a sale, as prescribed in this title, or a guardian of an infant party to the action, shall not, nor shall any person, for his benefit, directly or indirectly, purchase, or be interested in the purchase of, any of the property sold; except that a guardian may, where he is lawfully authorized so to do, purchase for the benefit or in behalf of his ward. The violation of this section is a misdemeanor; and a purchase made contrary to this section is void. From Id., 5. $1680. Reversioner, etc., may bring action, after ten ant's default. Where a tenant for life, or for a term of years, suffers judgment to be taken against him, by consent or by default, in an action of ejectment, or an action for dower, the heir, or person owning the reversion or remainder, may, after the determination of the particular estate, maintain an action of ejectment to recover the property. From 2 R. S. 339, Part 3, ch. 5, tit. 7, § 2 (2 Edm. 350). See § 1688. § 1681. Defendant, how prevented from committing waste, etc. If, during the pendency of an action specified in this title, the defendant commits waste upon, or does any other damage to, the property in controversy, the court, or a judge thereof, may, upon the application of the plaintiff, and due proof of the facts by affidavit, grant, without notice or security, an order restraining him from the commission of any further waste upon or damage to the property. Disobedience to such an order may be punished as a contempt of the court. This section does not affect the plaintiff's right to a permanent or a temporary injunction in such an action. From 2 R. S. 336, Part 3, ch. 5, tit. 5, §§ 18 and 19 (2 Edm. 347). § 1682. When order for survey may be made. If the court, in which an action relating to real property is pending, is satisfied that a survey of any of the property, in the possession of either party, or of a boundary line between the parties, or between the property of either of them, and of another person, is necessary or expedient, to enable either party to prepare a pleading, or prepare for trial, or for any other proceeding in the action, it may, upon the application of either party, upon notice to the party in possession, make an order. granting to the applicant leave to enter upon that party's property, to make such a survey. From 2 R. S. 339, Part 3, ch. 5, tit. 7, § 13. § 1683. Contents and service of order. An order, made as prescribed in the last section, must specify, by a description as definite as may be the property or boundary line to be surveyed, and the real property of the adverse party, upon which it is necessary to enter for that purpose. A copy thereof must be served on the owner or occupant of that property, before entry thereupon. From Id., 14. § 1684. Authority of party under order. After serving a copy of the order, as prescribed in the last section, the party obtaining it, his necessary surveyors, servants, and agents, may enter, for the purpose of making the survey, upon the real property described in the order, and may there make the survey; but each person so entering is responsible for any unnecessary injury done by him;· and the party procuring the order is responsible for such an injury, done by any person so entering. From Id., 15. § 1685. Liability of purchaser pending an action. If the defendant, in an action of ejectment or an action for dower, aliens the real property in question, after the filing of a notice, as specified in section 1670 of this act, and an execution against him for the plaintiff's damages is returned wholly or partly unsatisfied, an action may be maintained by the plaintiff against any person, who has been in possession of the property, under the defendant's conveyance, to recover the unsatisfied portion of the damages, for a time not exceeding that, during which he possessed the property. From Id., 19. See § 1670. § 1686. Infant may maintain, etc., real action in his own name. Any action specified in this title may be maintained by or against an infant in his own name; and article fourth of title second of chapter fifth of this act applies to such an action, except as otherwise prescribed in sections 1535 and 1536 of this act. § 1687. Joinder of real actions with others. Nothing contained in this title is to be construed, as to prevent the plaintiff from uniting in the same complaint two or more causes of action, in any case specified in section 484 of this act. § 1688. When special proceeding to recover real property not allowed. A special proceeding to recover real property cannot be taken, except in a case specially prescribed by law. From 2 R. S. § 24. DR ARTICLE TENTH. Evidence in Actions or Proceedings involving a Title to SEC. 1688a. Testimony perpetuated pursuant to this article may be received. 1688c. Mode of introducing testimony. 1688d. Application to take deposition and perpetuate testimony. 1688e. Petition, what to contain. 1688f. Appointment of referee; notice to appear. 1688g. Referee to take deposition. 1688h. Examination; deposition to be signed and certified. 16881. Depositions as evidence. § 1688a. Testimony perpetuated pursuant to this article may be received. In any action or proceeding involving a question as to title to real property in the state of New York, the court shall upon the offer of any party receive in evidence testimony perpetuated pursuant to the provisions of this article; provided that the testimony of a witness shall not be admissible under the provisions hereof, until the court is satisfied that such witness is deceased, or is unable personally to attend by reason of insanity, sickness or other infirmity, or is confined in a prison or jail, or is absent from the state, and his attendance can not with reasonable diligence be compelled by subpona or his testimony taken by commission. Added by ch. 303 of 1901. § 1688b. Effect of documentary evidence. No provision of this article shall give to any documentary evidence introduced in connection with such testimony any greater or different effect than may be due to it by reason of the testimony relative thereto or its own character. Added by ch. 303 of 1901. § 1688c. Mode of introducing testimony. Such testimony may be introduced in such action or proceeding in any mode established by the practice of the courts for the introduction of testimony given upon a former trial of an action by a witness who has since died, and subject to objections as to the competency of a witness or the relevancy or competency of a question put to him or the answer given by him, as if the witness were personally examined, and without being noted upon the deposition. Added by ch. 303 of 1901. § 1688d. Application to take deposition and to perpetaate testimony. Where a person has been, or he and those under whom he claims have been, for one year in possession of real property or of an undivided interest therein, claiming it in fee or for life or for a term of years, not less than ten, he may apply to the supreme court, by petition, to take the deposition of any person or persons and to perpetuate such testimony to be received in evidence pursuant to the provisions of this article. Added by ch. 303 of 1901. 461а OR § 1688e. Petition, what to contain. The person desiring to take a deposition and to perpetuate testimony as prescribed in this article may present to a justice of the supreme court a petition duly verified, setting forth as follows: First. A description of the real property in relation to which the petitioner desires testimony taken and perpetuated, the estate of the petitioner therein, whether in fee or for life, or for a term of years, and whether he holds as heir, devisee or purchaser, or as trustee of an express trust. Second. That the property at the date of the petition is and for one year next preceding has been in his possession or the possession of himself and those from whom he derives title, either as sole owner or as joint tenant or as tenant in common. Third. A general statement of the facts as to which testimony is to be taken and the circumstances which render it necessary for the protection of the petitioner's rights that the proposed testimony should be perpetuated. Fourth. The names and residences of the persons to be examined. Fifth. The names and residences of persons having interests which may be adversely affected by the testimony sought to be taken, so far as such names and residences are within the knowledge of the petitioner; or, where such names and residences cannot be ascertained, a statement of the class of persons having interests which may be so adversely affected. Sixth. Any other fact necessary to show that the case comes within the provisions of this article. Added by ch. 303 of 1901. § 1688f. Appointment of referee; notice to appear. Upon the presentation of the petition, the judge shall make an order containing directions as to the persons to whom, and the manner in which, notice shall be given of the time and place at which such application will be heard; and at the time fixed in said notice for that purpose, if it shall be shown to the satisfaction of the court that the case comes within the provisions of this article, the court shall make an order appointing a referee to take such testimony and prescribing the manner in which and the persons to whom notice shall be given of the time and place at which the testimony will be taken before said referee. Added by ch. 303 of 1901. § 1688g. Referee to take deposition. Before proceeding with the testimony, the referee shall require proof that due notice of the hearing has been given in accordance with the directions in said order contained, and thereupon the referee must proceed to take the depositions of the persons proposed to be examined, as stated in the petition, at the time and place mentioned in the notice, and may from time to time adjourn the examination to another day and another place within the same county. All the provisions of sections eight hundred and fifty-four, eight hundred and fifty-five, eight hundred and fifty-six, eight hundred and fifty-seven and eight hundred and fifty-eight of the code of civil procedure apply to the examination of a person taken as prescribed in this article. Added by ch. 303 of 1901. § 1688h. Examination; deposition to be signed and certified. The referee upon every examination taken as prescribed in this article must insert therein every answer or declaration of the person examined, which any party to the said proceeding requires to be inserted. If upon the examination before the referee the person |