Party bringing money into court is dis charged. General rules may TITLE III. Payment of money into court, and care and disposition thereof. SEC. 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 guar dian, etc. 748. When other courts have like power. 749. Powers of certain officers, touching securities, etc. 750. Provision 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. § 743. 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. 2 R. S. 177, § 21, concluding sentence. See 1 Wait's Pr. 584; Parsons v. Travis, 5 Duer, 650. § 744. The general rules of practice may contain regulations, conregulate cerning the payment of money into court, in an action, and the care and disposition thereof, which shall govern, where provision is not otherwise made by law. concern ing pay ment into court. Money to be paid to county treasurer, and securities taken in his name. Substituted for 2 R. S. 178, § 22. See Sup. Ct. Rules 70, 71 and 82 to 85; Wait's Code, 858, 859 and 869 to 871. $ 745. 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 treas urer, within four days after he receives it. In the city of NewYork, 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 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. See Laws of 1848, ch. 277 (4 Edm. St. 593), § 1; Sup. Ct. Rule 82; Wait's Code, 869. where and § 746. Provision may be made, in the general rules of practice, Funds; for the deposit, in a bank or trust company, of money paid into court; how deposited or for the investment thereof in the public debt of the United States, invested. or of a state, or for loaning it upon approved interest-bearing mortgages upon real property; and for the transferring or disposing, from time to time, of the money, or any investment, or security. But the money must be deposited or loaned in the county where the fund belongs, where that can be done conveniently and safely, and with advantage to the parties interested. See 2 R. S. 177, §§ 17, 18; Laws of 1847, ch. 280 (4 Edm. St. 580), § 83. supreme to trans to and in by guar § 747. The supreme court may direct that money, paid into Powers of that court, in an action brought therein, or a bond, mortgage, or court as other security, or public stock, in the possession or under the control fer, etc., of a county treasurer, which represents money so paid in, be trans- vestment ferred and delivered to a general or special guardian, committee, or dian, etc. other trustee, upon his giving, or if he has given, security, satisfactory to the court, for the faithful execution of his trust; or that a bond, mortgage, or other security, or public stock, be taken by and in the name of the guardian, committee, or other trustee; and be collected, invested or loaned, as the court directs, or as prescribed in the general rules of practice. Laws of 1848, ch. 277 (4 Edm. St. 596), part of § 8. See post, § 753. other have like § 748. Each superior city court, each county court, and the when marine court of the city of New-York, possesses, with respect to courts money, paid into that court, in an action brought therein, or a bond, power. mortgage, or other security, or public stock, in or upon which it has been invested or loaned, the power and authority conferred upon the supreme court, by the last section. See Laws of 1848, ch. 277 (4 Edm. St. 593), § 1. certain touching etc. § 749. A county treasurer, or other officer, or a guardian, com- Powers of mittee, or other trustee, in whose name is taken a bond, mortgage, officers, or other security, or public stock, representing money, paid into securities, 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. Laws of 1848, ch. 277 (4 Edm. St. 594), § 4, amended. Provision relating to death, removal, etc., of officer. Authority for payment of money by bank or trust company. How county treasurer to keep his accounts. County treasurer annually to the court. § 750. 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. 2. R. S. 178, §§ 26 and 27, remodelled. § 751. Money, paid into court, in an action, and deposited in a bank or trust company, to the credit of a county treasurer, shall not be paid out, without the production of a certified copy of an order of the court, for that purpose, countersigned by the judge, by whose direction it is made. 2. R. S. 178, § 23, amended. $ 752. The accounts of a county treasurer, with respect to money received by him, as prescribed in this title, with each bank or trust company, in which it is deposited, must be kept, so as to show, in the cash-books of the bank or company, and in the books of the county treasurer, in what particular action, or on what account, each item of money credited or charged, was deposited or paid out. Sup. Ct. Rule 83, first sentence. § 753. [Amended, 1877.] A county treasurer, who has, in his to report possession or under his control, money, bonds, mortgages, or other securities, or public stock, as prescribed in this title, must, once in each year, at the time prescribed by special order, or by the general rules of practice, make a report to the court, into which the money was paid, containing a statement of his accounts for the preceding year, or since the last account was rendered, and of the funds and securities under his control, relating to the money paid into that court. The statement must show, as to each action separately, the amount on hand uninvested; the time when each sum of money was received; the time, amount, and other description of each payment, investment, or loan; the amount deposited in each bank or trust company; and the balance on deposit therein; and also all public stock, bonds, mortgages, and other securities, representing the remainder of the fund. The statement must be accompanied with a certificate of the proper officer of each bank or trust company, in which a deposit is made, to the effect, that the total amount, stated to be remaining on deposit, is actually in that bank or company, placed to the credit of the county treasurer, in the action, and not mingled with any other account. If the court, at any time, deems the security given by the county treasurer insufficient to protect the funds and securities in his hands, and under his control, it must make an order directing him to make the security satisfactory to the court. See Sup. Ct. Rule 83. provis plicable York to § 754. Each provision of this title, relating to a county treas- These urer, applies to the chamberlain of the city of New-York, with fons aprespect to money paid into court, in an action triable in the city and in Newcounty of New-York, or with respect to money, or a bond, mortgage, the chamor 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 provision. berlain. TITLE IV. Proceedings upon the death or disability of a party, or the transfer of his interest. SEC. 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. An action does not abate by any event, if the cause of Action; action survives or continues. tion, after an order of reference and Where the cause of action is money when not to abate. Proceed ings upon transfer of interest, or devolu tion of liability. Id.; when sole party dies and action survives. of action is for wrongs to property rights, or interests, an action may be brought against the representative. State of New-York v. Starkweather, 8 J. & Sp. 453. And in an equity action against several defendants for an accounting, on the death of one of the defendants, the action survives, and his executors and representatives should be made parties. Halstead v. Cockroft, id. 519. But a cause of action for a breach of promise of marriage does not survive, Wade v. Kalbfleisch, 58 N. Y. (13 Sick.) 282; S. C., 16 Abb. N. S. 104; nor does a cause of action for libel survive or continue. More v. Bennett, 65 Barb. 338. § 756. 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. Code Pro., 121, third sentence. See Wait's Code, 143, 144; 1 Wait's Pr. 158-161; Getty v. Spaulding, 58 N. Y. (13 Sick.) 636. After the commencement of an action upon a promissory note, brought against the maker and indorser thereof, the plaintiffs sold and assigned the cause of action, and afterwards continued the action for the interest and benefit of the assignee; and it was held, that the action in nowise abated by the assignment and transfer of the So, plaintiffs' interest, and that its continuance in the name of the plaintiffs was in all respects proper and regular. Arnold v. Keyes, 5 J. & Sp. 135. the appointment of a receiver pending a suit does not operate to abate the suit, but it may be continued in the name of the original plaintiff. Albany City Insurance Co. v. Van Vranken, 42 How. 281; Phonix Warehousing Co. v. Badger, 6 Hun, 293. See Chase v. Vanderbilt, 62 N. Y. (17 Sick.) 307. § 757. [Amended, 1877.] In case of the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must, upon a supplemental summons and complaint, or, in its discretion, upon a motion, if made within one year after the decedent's death, in a proper case, allow or compel the action to be continued, by or against his representative, or successor in interest. Code Pro., 121, second sentence amended; Wait's Code, 140, notes; 1 Wait's Pr. 141, 152. After judgment of foreclosure, and before sale, the plaintiff died, and his executor assigned the judgment; and it was held, that the assignee was properly allowed to file a supplemental complaint to carry the judgment into effect. Robinson v. Brisbane, 7 Hun, 180. Where, on the death of a plaintiff in an action, who sues a trustee, the court appoints a person in place of the deceased, to execute the trust, upon the express consent and stipulation of the defendant, the latter cannot on motion, at the trial, have the complaint dismissed, on the ground that the title to the property was in the personal representatives of the deceased. Emerson v. Bleakley, 41 How. 511; S. C., 2 Abb. Ct. App. 22: 5 Abb. N. S. 350. Application, by the representative of a sole defendant, to revive the action against such representative, cannot be granted, unless the deceased defendant had before his death acquired rights or benefits in the litigation. Republic of Peru v. Reeves, 8 J. & Sp. 316. See the following cases: Prouty v. Lake Shore & Michigan Southern Railway Company, 52 N. Y. (7 Sick.) 363; Mc Culloch v. Norwood, 58 N. Y. (13 Sick.) 562; Taylor v. Taylor, 43 N. Y. (4 Hand) 578. This section qualifies the rule laid down in Beach v. Reynolds, 64 Barb. 506; S. C. affirmed, 53 N. Y. (8 Sick.) 1, that the right of the representatives of a deceased party to continue an action pending at the time of his death is not absolute, but rests in the legal discretion of the court. |