ARTICLE 13 Orders Sec. 127. Definition of an order. 128. Court may make chambers order. 129. Court orders made by supreme court justice out of court. 130. Granting orders out of court. 131. Vacation or modification of order. 132. Vacation or modification by appellate division of ex parte order. § 127. Definition of an order. A direction of a court or judge, made in an action or special proceeding, must be in writing unless otherwise specified in the particular case. judgment, is an order. Derivation. First two sentences of code civ. proc., §767, as am. by L. 1911, ch. 368, L. 1912, ch. 66; originally revised from code of proc., § 400. References.-Order to specify papers on motion. Generally, rules of civil practice, 70-74. Agreements in forms of orders, Id., 4. Order, what constitutes.-Uline v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 175; Gerity v. Seeger & Guernsey Co., 163 N. Y. 119; Cornwell v. Sheldon, 134 App. Div. 58, 118 N. Y. Supp. 707; Loper v. Wading River Realty Co., 143 App. Div. 167, 127 Ñ. Y. Supp. 1000; Goldsmiths & Silversmiths Co. v. Haas, 149 Misc. 210, 134 N. Y. Supp. 602; Reade v. Halpin, 180 App. Div. 157, 167 N. Y. Supp. 624; Howard v. Robinson, 186 App. Div. 530, 174 N. Y. Supp. 330; Matter of Consolidated Agency Co. v. Townley, 72 Misc. 155, 129 N. Y. Supp. 773; Phipps v. Carman, 26 Hun 518; Lovatt v. Watson, 35 Hun 553; Coakley v. Such a direction, unless it is contained in a Mahar, 36 Hun 157; People ex rel. Lower v. Donovan, 63 Hun 512, 18 N. Y. Supp. 501, revd., 135 N. Y. 76; Howard v. Freeman, 6 Rob. 511. When must be in writing.-Fifth Ave. Bank v. Forty-second St. R. Co., 6 App. Div. 567, 40 N. Y. Supp. 219; Hebron v. Work, 101 App. Div. 463, 92 N. Y. Supp. 149. Contents of order.-Goldsmiths & Silversmiths Co. v. Haas, 76 Misc. 210, 134 N. Y. Supp. 602; Solomon v. Rothbaum, 156 N. Y. Supp. 1093. Order and judgment distinguished.—Hoffman v. Barry, 2 Hun 52; Meyers v. Becker, 29 Hun 567, 573, affd., 95 N. Y. 486; Mass v. Ellis, 9 St. Rep. 512; Bentley v. Jones, 4 How. 335; Duane North R. Co., 4 How. 364; King v. Stafford, 5 How. 30; Roberts v. Morrison, 7 How. 396. § 128. Court may make chambers order. originally revised from code of proc., § 401, subd. 1, firs An order which is authorized by statute to be made at chambers may be made by the court. Derivation.-Code civ. proc., § 768, as am. by L. 1900, ch. 147, L. 1911, ch. 763; fifth sentence, with the present limitation excepting the first department removed. § 768 sentence. § 129. Court orders made by supreme court justice out of court. An order made by a justice of the supreme court, out of court, shall not be void on the ground that a statute or rule, in terms or in effect, requires the motion therefor to be made to, or authorizes the order to be made only by, such court, unless the order be made outside of a county or judicial district in which an application to the court for such order is authorized. Derivation.-New. This section permits a justice of the supreme court, out of court, to make a "court" order. The section is not intended, however, to give a county judge the power to make a "court" order in a supreme § 130. Granting orders out of court. court action. The section practically abolishes the distinction between "court" and "judges' " orders in the supreme court when made by supreme court justices. 1. An order in an action or special proceeding in a county court which a county judge may make out of court may be made without notice (except an order to stay proceedings which may be made only upon notice) by a justice of the supreme court, or by the county judge of any other county. 2. Where an order, in an action in any other court, may be made by a judge of the court, out of court, and without notice, and the particular judge is not specially designated by law, it may be made by any judge of the court in any part of the state; or, except to stay proceedings after verdict, report or decision, by a justice of the supreme court, or by the county judge of the county where the action is triable or in which the attorney for the applicant resides. Derivation.-Subd. 1 is new. See code civ. proc., $354, omitted as covered by subd. 1. Subd. 2 is code civ. proc., 772, as am. by L. 1877, ch. 416, L. 1895, ch. 946, and originally revised from code of proc., § 401, subd. 3, $323, except last sentence, which is omitted here and covered under "vacating orders." The words "in any other court" are inserted to exclude orders in a county court action which a county judge may grant out of court and which are covered by subd. 1. Code civ. proc., § 773, omitted as unnecessary. Reference. Power of county judge at chambers, C. P. A., § 77. Application.-People v. McLoughlin, 150 N. Y. 365. Power of supreme court in county court actions.Edwards v. Shreve, 83 App. Div. 165, 82 N. Y. Supp. 514. When orders made by any judge.-Rhodes v. Wheeler, 48 App. Div. 410, 63 N. Y. Supp. 184; Hull v. Hart, 27 Hun 21. Vacating, etc., orders by same judge or by court.Serven v. Lowerre, 3 Misc. 113, 23 N. Y. Supp. 1052; Byrnes v. Ladew, 15 Misc. 413, 36 N. Y. Supp. 1048; Modification of orders made by another judge.— Wingrove v. German Sav. Bank, 2 App. Div. 479, 37 N. Y. Supp. 1092; Palmer v. Rotary Realty Co., Inc., 109 Misc. 243, 178 N. Y. Supp. 461; Dinkelspiel v. Levy, 12 Hun 130; People v. National Trust Co., 31 Hun 20; New York Security & Trust Co. v. Lipman, 83 Hun 569, 32 N. Y. Supp. 65. Stay.-Whitman v. Johnson, 10 Misc. 730, 31 N. Y. Supp. 805; Margolies v. Ernst, 34 Misc. 405, 69 N. Y. Supp. 646. County Judge, orders by.-People v. Windholz, 68 App. Div. 552, 74 N. Y. Supp. 241; Pratt v. Bray, 10 Misc. 445, 31 N. Y. Supp. 465; Crandall & Godley Co. v. Eddy Co., 37 Misc. 745, 76 N. Y. Supp. 476, affd., 78 App. Div. 644, 80 N. Y. Supp. 1132; Matter of Parkman, 108 Misc. 316, 177 N. Y. Supp. 589; Adlinger v. Pugh, 57 Hun 181, 10 N. Y. Supp. 684, affd., 132 N. Y. 403; Albrecht v. Canfield, 92 Hun 240, 36 N. Y. Supp. 940. Improper caption.-Edwards v. Shreve, 83 App. Div. 165, 82 N. Y. Supp. 514. § 131. Vacation or modification of order. Where such an order grants a provisional remedy, it can be vacated only in the mode specially prescribed by law; in any other case, it may be vacated or modified, without notice, by the judge who made it, or, upon notice, by him, or by the court. Derivation. Code civ. proc., § 772, as am. L. 1877,ch. 416, L. 1895, ch. 946, last sentence; originally revised from code of proc., § 401, subd. 3, § 323, Provisional remedy.-McCarthy v. McCarthy, 13 Hun 579. § 132. Vacation or modification by appellate division of ex-parte order. The appellate division shall have power to vacate or modify, without notice, or upon such notice as it shall deem proper, any order in an action or special proceeding made by a justice of the supreme court or by the court without notice to the adverse party. Derivation.-Code civ. proc., § 1348, first clause of second sentence, as am. by L. 1895, ch. 946, without change; originally revised from code of proc., § 350, in part. Vacating or modifying order.-Marty v. Marty, 66 App. Div. 527, 73 N. Y. Supp. 369; People ex rel. Joline 52 v. Willcox, 129 App. Div. 267, 113 N. Y. Supp. 861, affd.. 194 N. Y. 393; Mitchell v. Cropsey, 177 App. Div. 663, 164 N. Y. Supp. 336; Bimboni v. McCormick, 157 N. Y. Supp. 299. ARTICLE 14 Payment into and out of court Sec. 133. Party bringing money into court is discharged. 134. Payment into court. 135. Title to court funds. 136. Disposition of court funds. 137. Funds or property not to be surrendered without order. § 133. Party bringing money into court is discharged. A party bringing money into court pursuant to the direction of the court is discharged thereby from all further liability to the extent of the money so paid in. 198. Payment to secure attorney's claim in condemnaton.-Cunningham v. New York, 162 App. Div. 851, 148 N. Y. Supp. 170. Derivation.-Code civ. proc., 743, without change; Payment of judgment recovered by guardian of originally revised from R. S., pt. 3, ch. 1, tit. 2, 21, infant.-Calmbacher v. Newman, 18 N. Y. Supp. last sentence. County law, 168, provides that a county clerk shall keep a register of court and trust funds. The section applies to funds deposited with the chamberlain of the city of New York for the counties of New York, Queens and Richmond. Code civ. proc., § 744a, relating to the power of the state comptroller to examine books, etc., of depositaries of court funds, has been included in state finance law, as § 44a thereof by L. 1920, ch. 929. § 134. Payment into court. Preference in payment of moneys held by trust company.-Henkel v. Carnegie Trust Co., 213 N. Y. 185. All moneys and securities paid, transferred, or deposited into court, must be paid or transferred, 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 or to such other county treasurer as the court specially directs. Where money is paid or a security is delivered to an officer other than the county treasurer, he must pay or transfer it to the county treasurer within two 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. Derivation.-Code civ. proc., 745, as am. by L. 1908, ch. 183, without change; originally revised from L. 1848, ch. 277, § 1. See R. S., pt. 3, ch. 1, tit. 2, §§ 17, 18, 24 and L. 1847, ch. 80, § 71. Reference.-Payment of money into court, etc., State finance l., §§ 44a-44f.j § 135. Title to court funds. Mechanic's lien.-Matter of Dean, 83 Hun 413, 31 Fees of county treasurer.-Veeder v. Mudgett, 27 A county treasurer or other officer, or a guardian, committee, or other trustee, in whose name is taken a bond, mortgage, public stock, or other security, representing money paid into court in an action, or to whom stock or 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. Derivation.-Code civ. proc., § 749, as am. by L. 1877, County treasurer.-County of Tompkins v. Ingersoll, ch. 416, without change of substance; originally revised 81 App. Div. 344, 81 N. Y. Supp. 242, affd., 177 N. Y. 543. from L. 1848, ch. 277, § 4. § 136. Disposition of court funds. Each court of record 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, after having been deposited with the county treasurer or city chamberlain, be paid out, transferred, invested or reinvested in any manner or form that appears to it best for the interests of the owners thereof. Such directions must be embodied in an order or decree of such 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. When the whole of an original deposit of money, or the whole of a distributive share thereof, or any security or other property, is directed to be paid or transferred out of court, the order must direct the payment of all accrued interest or other income belonging to the party or parties to whom such deposit or distributive share or security is ordered to be paid, transferred or delivered. Derivation.-Code civ. proc., §§ 747, 748, without change of substance; § 747, as am. by L. 1892, ch. 651, L. 1908, ch. 183, L. 1916, ch. 443, L. 1917, ch. 731; originally revised from L. 1848, ch. 277, § 8; original section entirely superseded by amendment of 1892. 748, as am. by L. 1892, ch. 651; originally revised from L. 1848, ch. 277, § 1; original section entirely superseded by amendment of 1892. Application and effect.-Perkins v. Stimmell, 114 N. Y. 358; County of Tompkins v. Ingersoll, 81 App. Div. 344, 81 N. Y. Supp. 242, affd., 177 N. Y. 543; Thurston v. Wilbur Trust Co., 7 Misc. 392, 27 N. Y. Supp. 923. § 137. Funds or property not to be surrendered without order. No 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. Derivation.-Code civ. proc., § 751, as am. by L. 1892, ch. 651, L. 1917, ch. 731, without change of substance; originally revised from R. S., pt. 3, ch. 1, tit. 2, §.23. Application.-Matter of People v. Maltbie, 184 App. Div. 743, 172 N. Y. Supp. 484, affd. 226 N. Y. 641; Matter of Dean, 83 Hun 413, 31 N. Y. Supp. 959. 54 Payment of infant's share.-Thurston v. Wilbur ARTICLE 15 Preferences Sec. 138. Preferences among civil actions. 139. Preference of certain actions by the people. 140. Preference of mandamus or prohibition orders in appellate courts. 141. Manner of obtaining preference. 142. Preference of second and subsequent appeals to court of appeals. 143. Preference in hearing of appeals when title to public office involved. § 138. Preferences among civil actions. Civil causes are entitled to preference among themselves, in the trial or hearing thereof, in the following order, next after the causes specified in section hundred and thirty-nine: 1. An action or special proceeding brought by or against the people of the state, or brought by the people of the state on the relation of a party, or brought by or against any state officer or board of state officers as such; where the attorney of the said people, state officer or board of state officers or attorney for the plaintiffs in such action or special proceeding has given notice, at the time of the service of the notice of trial or argument, of the particular day in the term at which he will move it. If the action or special proceeding is not moved by said attorney for trial or argument on that day, or as soon thereafter in the same term as the court can hear it, the other party may then move the trial or argument; otherwise it shall not be moved out of its order at that term except by the special order of the court. 2. An action or special proceeding in which The City of New York is a party, where a notice similar to the notice prescribed in the last subdivision has been served by its attorney at the time of service of the notice of trial or argument. The provisions of the last subdivision, relating to moving the trial or argument, apply to a cause within this subdivision. 3. An action or special proceeding in which a board of officers, exercising powers conferred by a statute for the protection of public health or public or private property, or for the prevention or punishment of violations of a statute relating to either of those subjects, are parties; where a notice similar to the notice prescribed in subdivision one has been served by their attorney at the time of the service of the notice of trial or argument. The provisions of subdivision one, relating to moving the trial or argument, apply to a cause within this subdivision. 4. In the court of appeals or the supreme court, an appeal taken by either party in an action or special proceeding other than as specified in subdivision one of this section, where the people of the state, or a board of state officers, are sole parties, or a state officer is sole party, plaintiff or defendant. 5. In the court of appeals or the supreme court, on motion of the appellant, an appeal taken by either party in an action or special proceeding from a judgment or order declaring a legislative enactment unconstitutional, 6. In the court of appeals, an action, a party to which has died, pending the action, where the pendency of the action prevents a final settlement of the estate of the deceased party. 7. In any court, an action or special proceeding in which an executor or an administrator, or testamentary trustee, or an infant, or a trustee of a fund for the support and maintenance of an infant, or a receiver appointed by the court, or by the comptroller of the currency of the United States, or a trustee in bankruptcy, or a general assignee for the benefit of creditors, or the committee of a lunatic or an idiot, or a creditor of a deceased insolvent debtor suing for the benefit of himself and other creditors interested in the estate or property of such deceased debtor where a right of action is given by express provision of law, is the sole plaintiff or sole defendant; an action or special proceeding for the construction of, or an adjudication upon or to determine the validity of the probate of a will, in which the administrator with the will annexed, or the executor of the will, is joined as plaintiff or defendant with one or more other parties. 8. In the court of appeals or the supreme court, an appeal from the decree or decision of a surrogate's court determining a will to be valid and admitting it to probate, or determining an instrument offered for probate as a will to be invalid or not entitled to probate as such, or granting general letters of administration or directing the distribution of a fund or |