§ 972. Cancelling notice attaching real property. At any time after the warrant of attachment has been vacated or annulled, or the attachment has been discharged as to real property attached, the court, in its discretion, upon the application of any person aggrieved and upon such notice as it deems just, may direct that any notice, filed for the purpose of attaching the property, be cancelled of record by the clerk of the county where it is filed and recorded. The cancellation must be made by a note to that effect on the margin of the record, referring to the order; and, unless the order is entered in the same clerk's office, a certified copy thereof must be filed therein at the same time. Derivation.-Code civ. proc., §711, as am. by L. 1877, ch. 416, without change; originally revised from code of proc., § 132, as to cancellation of notices of lis pendens. Where stay of execution granted.-McKean v. National Life Assn., 24 Misc. 511, 53 N. Y. Supp. 980. § 973. When sheriff to return warrant and his proceedings. Where a warrant of attachment has been vacated or annulled, the sheriff forthwith must file in the clerk's office the warrant with a return of his proceedings thereon. Upon the application of either party, and proof of the sheriff's neglect, the court may direct him so to do, forthwith, or within a specified time. Derivation.-Code civ. proc., § 712, without change; originally revised from code of proc., § 242; R. S., pt. 2, ch. 5, tit. 1, § 66, in part. References.-Return of mandates by sheriff, C. P. 343 A., § 102, subds. 2, 4; liability for neglect, Id., subd. 5; ARTICLE 60 Receivers Sec. 974. Receivers, generally. 975. Application for appointment of receiver. 976. Security. 977. Powers of receivers to hold real property. § 974. Receivers, generally. In addition to the cases where the appointment of a receiver is specially provided for by law, a receiver of property which is the subject of an action in the supreme court or a county court may be appointed by the court, in either of the following cases: 1. Before final judgment, on the application of a party who establishes an apparent right to, or interest in, the property, where it is in the possession of an adverse party and there is danger that it will be removed beyond the jurisdiction of the court, or lost, materially injured, or destroyed. 2. By or after the final judgment, to carry the judgment into effect, or to dispose of the property, according to its directions. 3. After final judgment, to preserve the property during the pendency of an appeal. The word "property," as used in this section, includes the rents, profits, or other income, and the increase, of real or personal property. Derivation.-Code civ. proc., §713, as am. by L. 1895, ch. 946, without change; originally a substitute for code of proc., § 244, subds. 1, 2, 5. References.-Actions by receiver not abated by death or removal, C. P. A., § 478; reference on appointment of receiver, Id., §80; judgments, how vested in receiver, Id., § 534; appointment in matrimonial actions, Id., § 1171; in proceedings for dissolution of corporation, general corporation 1., §§ 101, 103; upon annulment of corporation, general corporation 1., § 134; in action by creditor to compel discovery of property, C. P. A., §1191; in action for accounting of partnership, Id., partnership 1., §75; on voluntary dissolution of corporation, general corporation 1.. §§ 191, 192, 194, in supplementary proceedings, C. P. A., §§ 805-813; receiver of debtor's estate, rules of civil practice, 175; motion for appointment of receiver to sequestrate property of corporation, Id., 178. Receives generally, Id., 175-180. Superintendent of banks taking possession of property of banking corporations, banking 1., §§ 57-71; of insurance corporations, insurance I., §§ 77-83; applications generally for the appointment of receivers of corporations, general corporation 1., § 306. Limitation upon power of court.-Colwell v. Garfield Nat. Bank, 119 N. Y. 408. Application.-Gallagher v. Karns, 27 Hun 375; Alford v. Berkele, 29 Hun 633. Before final judgment.-Hallenbeck v. Donell, 94 N. Y. 342, revg. 29 Hun 94; National Union Bank v. Riger, 38 App. Div. 123, 56 N. Y. Supp. 545; Matter of Busch Brewing Co., 41 App. Div. 204, 58 N. Y. Supp. 812; Ashley v. Ashley, 59 App. Div. 611, 69 N. Y. Supp. 173; Libby v. Libby, 68 App. Div. 15, 74 N. Y. Supp. 57: Mack v. Stanley 74 App. Div. 145, 77 N. Y. Supp. 574: Hastings v. Tousey, 121 App. Div. 815, 106 N. Y. Supp. 639; Jarmulowsky v. Rosenbloom, 125 App. Div. 542, 109 N. Y. Supp. 968; Pomerantz v. Mints Realty Co., 141 App. Div. 864, 126 N. Y. Supp. 649; Morse v. Van Ness, 155 App. Div. 633, 140 N. Y. Supp. 1043; Bindberg v. Wagenhals, 53 Misc. 13, 102 N. Y. Supp. 925; Johnson v. Cochrane, 91 Hun 163, 36 N. Y. Supp. 287. Prospective injury.-Day v. Daw, 46 App. Div. 148, 61 N. Y. Supp. 793; U. S. Life Ins. Co. v. Ettinger, 32 Misc. 378, 66 N. Y. Supp. 1. Beceiver of rents and profits.-Rappaport v. Otten, 135 App. Div. 386, 120 N. Y. Supp. 461; Conroy v. Polstein, 150 App. Div. 832, 135 N. Y. Supp. 419; Schwarz v. Alexander, 178 App. Div. 641, 165 Ñ. Y. Supp. 491; Manhattan Life Ins. Co. v. Hammerstein Opera Co., 180 App. Div. 69, 167 N. Y. Supp. 245. Adverse party.-La Femina v. Arsene, 72 App. Div. 498. Continuance pending appeal.-Colwell v. Garfield Nat. Bank, 119 N. Y. 408. After judgment.-King v. Barnes, 51 Hun 550, 4 N. Y. Supp. 247, affd., 113 N. Y. 476; Glines v. Binghamton Trust Co., 68 Hun 511, 22 N. Y. Supp. 1023. Practice.-Congelton v. Beecher, 56 App. Div. 67, 67 N. Y. Supp. 747; Holland Co. v. Cons. Gas & Elec. Co., 85 Hun 454, 32 N. Y. Supp. 830. § 975. Application for appointment of receiver. Notice of an application for the appointment of a receiver in an action, before judgment therein, must be given to the adverse party, unless he has failed to appear in the action and the time limited for his appearance has expired. But where an order has been made directing the service of the summons upon a defendant by publication, the court, in its discretion, may appoint a temporary receiver, to receive and preserve the property, without notice, or upon a notice given by publication or otherwise, as may be proper. But where the action is for the foreclosure of a mortgage, which mortgage provides that a receiver may be appointed without notice, notice shall not be required. Derivation.-Code civ. proc., § 714, as am. by L. 1879, ch. 542, L. 1903, ch. 217, without change of substance. References.-Notice of motion for appointment of receiver of corporation, genera! corporation ., § 306; papers to be served on attorney-general, Id., § 312. Application. Ettlinger v. Persian Rug, etc., Co., 66 Hun 94, 20 N. Y. Supp. 772, affd., 142 N. Y. 189. Appointment ex parte.-Woerishoffer v. Peoples, 120 App. Div. 319, 105 N. Y. Supp. 506; Cohn v. Bartlett, 182 App. Div. 245, 169 N. Y. Supp. 604. Adverse party entitled to notice.-Dazian v. Meyer, 56 App. Div. 575, 73 N. Y. Supp. 328; Grover v. MeNeeley, 72 App. Div. 575, 76 N. Y. Supp. 559; Frankenstein v. Hamburger, 73 App. Div. 352, 76 N. Y. Supp. 818. Notice of application.-Straus v. Minkowski, 181 App. Div. 877, 169 N. Y. Supp. 442; Coleman v. Goodman, 37 Misc. 517, 75 N. Y. Supp. 973. § 976. Security. When notice not required.-Citizens' Sav. Bank vr Wilder, 11 App. Div. 63. 42 N. Y. Supp. 481; Fletche. v. Krupp, 35 App. Div. 586, 55 N. Y. Supp. 146; Conroy v. Polstein, 150 App. Div. 832, 135 N. Y. Supp. 419; Forster v. Moore, 73 Hun 244, 25 N. Y. Supp. 1032. A receiver, appointed in an action or special proceeding, must execute and file with the proper clerk, before entering upon his duties, a bond to the people, with sufficient sureties, in a penalty fixed by the court, judge or referee making the appointment, conditioned for the faithful discharge of his duties as receiver. The court, or, where the order was made out of court, the judge making the order by or pursuant to which the receiver was appointed, or his successor in office, at any time may remove the receiver or direct him to give a new bond, with new sureties, with the like condition. But the foregoing provisions of this section do not apply to a case where special provision is made by law for the security to be given by a receiver, or for increasing the same, or for removing a receiver. A receiver who, having executed and filed a bond as provided for in this section, before presenting his accounts as receiver, must give notice to the surety or sureties on his official bond of his intention to present his accounts, not less than eight days before the day set for the hearing on said accounting. The same notice must be given to such surety or sureties where the accounting is ordered on the petition of a person or persons other than the receiver, and in no case shall the receiver's accounts be passed, settled or allowed, unless the said notice provided for in this section shall have first been given to the surety or sureties on the official bond of such receiver. Derivation.-Code civ. proc., § 715, as am. by L. 1877, ch. 416, L. 1896, ch. 94, without change of substance. The matter omitted, referring to the execution of bond by fidelity company, etc., is covered by section under "security" in general practice provisions (§ 156, ante). References.-General regulations as to bonds and undertakings, C. P. A., §§ 148-162. Security for costs by receiver before action, rules of civil practice, 176. Application.-Matter of Spies, 92 App. Div. 175, 86 N. Y. Supp. 1043. Sufficiency of bond.-Thompson v. Denner, 16 App. Div. 160, 55 N. Y. Supp. 723; Carl v. Meyer, 51 App. Div. 564 N. Y. Supp. 1077. Execution and filing.-Mulstein Co. v. City of New York, 213 N. Y. 308; Edgerley v. Blackburn, 140 App. Div. 419, 422, 125 N. Y. Supp. 353. Liability of suretles.-Stratton v. City Trust, Safe Dep. & S. Co., 69 App. Div. 322, 74 N. Y. Supp. 670; Stratton v. City Trust, Safe Dep. & S. Co., 86 App. Div. 551, 83 N. Y. Supp. 780; Thompson v. McGregor, 9 Abb. N. C. 138, revd. on other grounds, 81 N. Y. 592. § 977. Powers of receivers to hold real property. A receiver appointed by or pursuant to an order or a judgment in an action in the supreme court or a county court may take and hold real property upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respecting the disposition thereof. Derivation.-Code civ. proc., § 716, as am. by L. 1895, ch. 946, L. 1909, ch. 65, without change; originally revised from L. 1845, ch. 112, § 1. Mortgage foreclosure.-Schwartz v. Alexander, 178 App. Div. 641, 165 N. Y. Supp. 191. Partition.-Rinehart v. Hasco Building Co., 153 App. Div. 153, 138 N. Y. Supp. 258. 345 ARTICLE 61 Disposition of property in litigation Sec. 978. Disposition of property in action or proceeding. § 978. Disposition of property in action or proceeding. Where it is admitted by the pleading or examination of a party, that he has, in his possession or under his control, money, or other personal property capable of delivery, which, being the subject of the action or special proceeding, is held by him as trustee for another party, or which belongs or is due to another party, the court, in its discretion, may grant an order, upon notice, that it be paid into or deposited in court, or delivered to that party, with or without security, subject to the further direction of the court. Derivation.-Code civ. proc., § 717, as am. by L. 1877, ch. 416, without change; originally revised from code of proc., 244, in part. § 979. Disposition of property by sheriff on order of court. Where the court has directed a deposit or delivery, as prescribed in the last section, or where a judgment directs a party to make a deposit or delivery, or to convey real property, if the direction is disobeyed, the court, by order, besides punishing the disobedience as a contempt, may require the sheriff to take, and deposit or deliver, the money or other personal property, or to convey the real property, in conformity with the direction of the court. Derivation.-Code civ. proc., § 718, without change; originally revised from code of proc., § 244, in part. $980. Sale of perishable property. It shall be lawful for the court in which an action or special proceeding is pending, or a judge thereof, on the application of any party, to make any order for the sale, by any person or persons named in such order, and in such manner, and on such terms as the court or judge may think desirable, of any goods, wares, or merchandise, which are the subject of such action or special proceeding, and which may be of a perishable nature or likely to be injured from keeping. ARTICLE 62 Real property actions; general provisions Sec. 981. Defendant, how prevented from committing waste or damage. 982. When order for survey may be made. 983. Contents and service of order. 984. Authority of party under order. 985. When and how court may compel delivery of possession of real property to purchaser. 986. Sale; notice of; how conducted. 987. Purchases by certain officers prohibited; penalty. 988. Persons bound by judgment în certain actions. 989. Special proceedings to recover real property. § 981. Defendant, how prevented from committing waste or damage. If, during the pendency of an action to recover a judgment affecting the title to, or the possession, use or enjoyment of real property, the defendant commits waste upon, or does any other damage to, the property in controversy, the court or a judge thereof, upon the application of the plaintiff and due proof of the facts by affidavit, may 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 temporary injunction in such an action. Application.-Thompson v. Manhattan Ry. Co., 130 N. Y. 360; Chamberlain v. Childs' Unique Dairy Co., 52 Misc. 371, 104 N. Y. Supp. 912; Chamberlain v. Childs. Unique Dairy Co., 54 Misc. 56, 105 N. Y. Supp. 370; Trustees v. Matteson, 12 St. Rep. 370; Weatherly v. Wood, 29 How. Pr. 404; People v. Alberty, 11 Wend. 160, Cutting and removing trees. Littlejohn v. Leffingwell, 40 App. Div. 13, 57 N. Y. Supp. 839; Wagner v. Garin, 155 App. Div. 727, 140 N. Y. Supp. 936. § 982. 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, upon the application of either party, upon notice to the party in possession, it may make an order granting to the applicant leave to enter upon that party's property to make such a survey. Derivation.-Code civ. proc., § 1682, without change; originally revised from R. S., pt. 3, ch. 5, tit. 3, § 13. Application.-Sutter v. City of New York, 89 App. § 983. Contents and service of order. Div. 494, 85 N. Y. Supp. 989; Howe's Cave Lime & 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. Derivation.-Code civ. proc., § 1683, without change; originally revised from R. S., pt. 3, ch. 5, tit. 3, § 14. § 984. 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. Derivation.-Code civ. proc., § 1684, without change; originally revised from R. S., pt. 3, ch. 5, tit. 3, § 15. § 985. When and how court may compel delivery of possession of real property to purchaser. Where a judgment in an action affecting the title to, or the possession, enjoyment or use of real property allots to any person a distinct parcel of real property, or contains |