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offer, or copies thereof and prour of acceptance; and thereupon the clerk must enter judgment accordingly. If notice of acceptance is not thus given, the offer cannot be given in evidence upon the trial, but, if the recovery is not more favorable to the defendant than that so offered, he will not be entitled to recover costs from the time of the offer, but must pay costs from that time.

§ 740. Offer and acceptance, by whom subscribed. Unless an offer or an acceptance, made as prescribed in either of the last four sections, is subscribed by the party making it, his attorney must subscribe it, and annex thereto his affidavit, to the effect that he is duly authorized to make it, in behalf of the party.

§ 741. [Stricken out by Ch. 416 of 1877.] § 742. [Stricken out by Ch. 416 of 1877.]

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.

8743. Party bringing money into court is discharged. A party bringing money into court, pursuant to the direction of the court, is discharged thereby from further liability, to the extent of the money so paid in.

$744. Comptroller to supervise funds paid into court. The comptroller of the state of New York shall supervise the administration of all the funds paid into any court of record, and shall prescribe regulations and rules for the care and disposition thereof, which shall be observed by all parties interested therein, unless the court having jurisdiction over the same, shall make different directions, by special order duly entered in accordance with section 747 of this act. [AM'D CH. 651 of 1892.]

$ 745. Money to be paid to county treasurer, and securities, taken in his name. Unless the court otherwise specially directs, money, paid into court, must be paid, either directly, or by the officer who is required by law first to receive it, to the county treasurer of the county, where the action is triable. Where it is paid to an officer, other than the county treasurer, he must pay it to the county treasurer, within four days after he receives it. In the city of New York, he must pay it to the chamberlain, 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

Ch. 8, Tit. 3.

MONEY PAID INTO COURT.

S$ 746-752. 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.

8746. Funds; where and how deposited or invested. All funds or moneys paid into court shall be deposited in such savings bank, trust company, bank, banking association or with such banker, as shall be designated by the comptroller, as soon as received by the custodian thereof. But the money must be deposited in the county where the fund belongs, where it can be done conveniently and safely and with advantage to the parties interested. The depositaries desig nated shall pay a fair rate of interest; and before receiving any such deposit shall give to the people of the State a good and sufficient bond with two or more sureties, in such form as the attorney-general shall prescribe, such bond to be approved by the county judge of the county in which such savings bank, bank, trust company, bank association or banker shall be located, and by the comptroller of the state, and filed in the office of the comptroller. [AM'D Cн. 651 OF 1892.]

Each

$747. Powers of court as to payment, transfer and investment. court may direct that money paid into that court in any action or proceeding brought therein, or any bond, mortgage or other security which represents property belonging to any suit or party interested therein, may be paid out, transferred, invested, reinvested or deposited in any manner or form that ap pears to it best for the interests of the owners thereof. But such directions must be embodied in an order or decree of said court, founded upon proper and sufficient evidence satisfactory to the court that such disposition of the property is best for the interests of the owners thereof or parties interested therein. [AM'D CH. 651 OF 1892.]

8748. Application of last section. The provisions of the last preceding section shall apply to all courts of record of the State. [AM'D CH. 651 OF 1892.]

$749. Powers of certain officers, touching securities, etc. [AMENDED BY CH. 416 OF 1877.] A county treasurer, or other officer, or a guardian, committee, 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.

$750. Provision relating to death, removal, etc., of officer. On the expiration of the official term of a county treasurer, or where a vacancy occurs in his office, by death or otherwise, all public 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.

8751. Authority for payment, etc., by bank or trust company. Νο money, security or other property which shall have been placed in the custody of the court shall be surrendered without the production of a properly certified copy of an order of the court, in whose custody said money, security or other property shall have been placed, duly made and entered, directing such disposition. Each order must be countersigned by the presiding judge by whose direction it is made. [Aм'D CH. 651 OF 1892.]

$752. How county treasurer, etc., to keep his accounts. Erery officer hav ing charge of moneys, securities or other property in the custody of the court, shall keep a book or books in which he shall make an exact account thereof Such book or books shall state the name of the court, the title of the case, the date of receipt, from whom received, the amount of money, if any,

and a description of the securities or other property received, if any, and each addition of interest; also the date and description of each order for payment and the dates and amounts of payments thereunder and to whom paid; also an account of each change of investment, if any. The provisions of this section shall also apply to all banks or trust companies holding any of the funds referred to in this title. [AM'D CH. 651 OF 1892.]

$753. Annual report by custodian of funds. Every treasurer or financial officer who has in his charge or possession or under his control, money. bonds, stocks, mortgages or any other securities or property as prescribed in this title, must, once in each year, make a report to the comptroller at the time and in the form and manner which he may prescribe, containing a true statement of his accounts for the preceding year or from the time of the last report. This report must be verified by the oath of such officer, and must be accompanied by the certificate of the proper officer of each bank or trust company, stating the exact amount on deposit with such corporation to the credit of each case separately. Such officer or bank or trust company shall furnish any additional report to the comptroller or to the court at such time and in such detail as may be required.

The comptroller is authorized to employ such special clerk or clerks as he may deem necessary, to carry out the provisions of this act; and he shall cause an examination of the accounts of the officers referred to in this act to be made at least once in each year, and shall enforce the provisions thereof.

Whenever any sum of money, paid into court, shall have remained in the hands of any county treasurer, or of the chamberlain of the city of New York, for the period of twenty years, it shall be paid over by such officer with all accumulations of interest thereon, after deducting his legal fees, to the treasurer of the state of New York. The said treasurer shall pay such sum to the owner or owners thereof upon the presentation to him of the warrants of the comptroller therefor. The comptroller shall draw his warrant for such sum upon the presentation to him of an order of the court made in accordance with section seven hundred and fifty-one of the code of civil procedure and upon due notice to said comptroller. [As am'd by ch. 651, Laws 1892.]

8754. 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. 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. 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 proceedings survives or continues, but this provision as to special proceedings applies only to cases where a party dies after this act takes effect. [AM'D CH 284 or 1891; in effect Sept. 1, 1891.]

§ 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.

757. Id.; 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 death of a sole party to a special proceeding after this act takes effect, if the right to relief sought in such proceedings 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. [AM'D CH. 284 OF 1891; in effect Sept. 1, 1891.]

§ 758. Id.; when one of several parties dies. [AMENDED BY CH. 416 OF 1877.] 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. 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 several as well as joint, may 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.

$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 of 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.

§ 760. The same. [AMENDED BY CHI. 542 OF 1879.] 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. When court may order action abated. [AMENDED BY CH. 416 OF 1877.] 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

So in the original.

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

§ 763. Death of party after verdict, etc. If either 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 judgment, in the names of the original parties; unless the offer, verdict, report, or decision, or the interlocutory judgment, is set aside.

§ 761. Abatement of actions. 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. [AM'D CHS. 277 OF 1881 AND 379 OF 1890; in effect Sept. 1, 1890.

§ 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. In that case the verdict, report or decision is absolutely void.

§ 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.

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 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.

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,

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