undertaking or recognizance in the action or special proceeding so removed, each of which continues to have the same validity and effect as if the removal had not been made. Where bail was given, the surrender of the defendant in the supreme court has the same effect as a surrender in the county court would have had if the action or special proceeding had remained therein.

Derivation.-Code civ. proc., § 346, without change of substance. See L. 1873, ch. 239, § 10.

33

ARTICLE 5

Consolidation and severance

Sec. 96. Consolidation and severance of actions.

97. Consolidation of actions pending in different courts.

§ 96. Consolidation and severance of actions.

An action may be severed and actions may be consolidated whenever it can be done without prejudice to a substantial right.

Derivation.-New. This section will cover code civ. proc., §§ 817, 819, 1220, and last sentence of § 497. The first sentence of § 497 is omitted as unnecessary.

References.-Severance where defendants severally liable, C. P. A., § 475; several judgments against two or more defendants, Id., §474.

Purpose.-Miller v. Baillard, 124 App Div. 555, 108 N. Y. Supp. 973.

Theory. People ex rel. Collins v. Ahearn, 146 App. Div. 135, 138, 130 N. Y. Supp. 497.

Where single cause stated.-Tew v. Wolfsohn, 174 N. Y. 272; Mack v. Latta, 83 App. Div. 242, 82 N. Y. Supp. 130, revd. on other grounds, 178 N. Y. 525.

City court of New York.-Gillin v. Canary, 19 Misc. 594, 44 N. Y. Supp. 313; Curley v. F. & M. Shaefer Brewing Co., 35 Misc. 131, 71 N. Y. Supp. 318.

Discretion of court.-Argyle Co. v. Griffith, 128 App. Div 262, 112 N. Y. Supp. 773.

When consolidated.-Posner v. Rosenberg, 153 App. Div. 249, 137 N. Y. Supp. 1084; Consolidation of causes of action County of Sullivan v. Downie, 102 Misc. 348, 168 N. Y. Supp. 923.

When not consolidated.-American Grocery Co. v. Flint, 5 App. Div. 263, 39 N. Y. Supp. 153; Mason v. Evening Star Newspaper Co., 35 Misc. 77, 71 N. Y. Supp. 203, affd. 67 App. Div. 619, 73 N. Y. Supp. 1140.

Consolidation on motion.-German Exch. Bankv.
Kroder, 14 Misc. 179, 35 N. Y. Supp. 380; Eckenroth v.
Egan, 20 Misc. 508, 46 N. Y. Supp. 666; McAndrew v.
Lake Shore & M. S. R. Co., 70 Hun 46, 23 N. Y. Supp.
1074.

Actions for breach of contract.-Posner v. Rosen-
berg, 153 App, Div. 249, 137 N. Y. Supp. 1084.
Partition.-Mayor v. Coffin, 90 N. Y. 312.
Staying suits.-Third Ave. R. Co. v. Mayor, 54 N. Y.

159.

Special proceedings.-People ex rel. Collins V. Ahearn, 146 App. Div. 135, 130 N. Y. Supp. 497.

Conditions of granting order.-Isear v. Daynes, 1 App. Div. 557, 37 N. Y. Supp. 474; Train v. Davison, 11 App. Div. 627, 42 N. Y. Supp. 1133; Perkins v. Merchants' Lith. Co., 21 Misc. 516, 47 N. Y. Supp. 712; Boyle v. Staten Island Land Co., 87 Hun 233, 33 N. Y. Supp. 836.

§ 97. Consolidation of actions pending in different courts.

Where one of the actions is pending in the supreme court and another is pending in another court, the supreme court, by order, may remove to itself the action in the other court and consolidate it with that in the supreme court.

Derivation.-Code civ. proc., § 818; originally revised

from R. S., pt. 3, ch. 6, tit. 6, § 37.

Actions must be against same defendant.-Isear v. Daynes, 1 App. Div. 557, 37 N. Y. Supp. 474.

34

City court of New York. Curley v. F. & M. Schaefer Brewing Co., 35 Misc. 131, 71 N. Y. Supp. 318.

Except as otherwise expressly provided by statute, the court or a judge shall have power after the commencement of an action or special proceeding to enlarge the time appointed by statute or rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms as the justice of the case may require, and any such enlargement may be ordered upon good cause shown although the application for the same is not made until after the expiration of the time appointed or allowed. Derivation.-New. Taken from English Practice rules, order 64, rule 7. The provision suggested by the committee does not give the court power to "abridge" the time for doing an act or taking a proceeding as does the English rule. The committee's provision also covers "special proceedings," which are not covered by code civ. proc., 781, 783, upon this subject. Code, civ. proc., $$781, 783, omitted as covered.

References.-Extension of time, rules of civil prae

tice, 85-88.

Complaint, extension of time to serve.-Merc. Nat. Bank v. Com. Exch. Bank, 68 Hun 95, 22 N. Y. Supp. 643.

Answer, extension of time.-Moran v. Helf, 52 App. Div. 481, 65 N. Y. Supp. 113; Littauer v. Stern, 88 App. Div. 274, 85 N. Y. Supp. 71, affd., 177 N. Y. 233; Landmesser v. Hayward, 157 App. Div. 74, 141 N. Y. Supp. 730; Condon v. Church of St. Augustine, 14 Misc. 181, 35 N. Y. Supp. 382; Pattison v. O'Connor, 23 Hun 307; Havemeyer v. Brooklyn Sug. Ref. Co., 13 N. Y. Supp. 873; Powell v. Schoellkopf (1921), 197 App. Div. 471, 188 N. Y. Supp. 297.

Ex parte application.-Travis v. Travis, 48 Hun 343, 1 N. Y. Supp. 357.

§ 99. Limitation on extension of time.

Application.-Wood v. Powell, 3 App. Div. 318, 38 N. Y. Supp. 196; Dembity v. Orange County Traction Co., 147 App. Div. 588, 132 N. Y. Supp. 597; Griswold v. Caldwell, 14 Misc. 299, 35 N. Y. Supp. 1057; Troy Carriage Works v. Muxlow, 16 Misc. 561, 38 N. Y. Supp. 938; De Freest v. City of Troy, 34 Hun 580.

Laches in serving complaint Martin v. McCurdy. 120 Apr. Div. 665,-105 N. Y. Supp. 474.

Lacies in amending answer.-Matter of Prentice, 155 App. Div. 480, 139 N. Y. Supp. 1927.

Judgment by default, motion to set aside.-Cascade Hotel Co. v. Orleans Real Estate Co., 153 App. Div. 882, 138 N. Y. Supp. 1110; Verderber v. Stine, 162 App. Div. 152, 147 N. Y. Supp. 178; Kressh v. Novick, 162 App. Div. 891, 148 N. Y. Supp. 55; Rothschild v. Haviland, 172 App. Div. 562, 158 N. Y. Supp. 661; Empire State Pickling Co. v. Pfister, 80 Misc. 162, 141 N. Y. Supp. 817; Bancroft-Graham v. Halley, 80 Misc. 191, 141 N. Y. Supp, 911; Carey v. Browne, 67 Hun 516, 22 N. Y. Supp. 521. Notice of appeal, amendment.-Lavalle v. Skelly 90 N. Y. 547.

Fallure to apply for interpleader before answer.Sophian v. Fidelity & Deposit Co., 184 App. Div. 553.

1. A court or a judge is not authorized to extend the time fixed by law within which to commence an action; or to take an appeal; or to apply to continue an action where a party thereto has died or has incurred a disability; or the time fixed by the court within which a supplemental complaint must be made in order to continue an action; or an action is to abate unless it is continued by the proper parties.

2. A court or a judge cannot allow either of those acts to be done after the expiration of the time fixed by law, or by the order, as the case may be, for doing it; except where a party entitled to appeal from a judgment or order, or to move to set aside a final judgment for error in fact, dies before the expiration of the time within which the appeal may be taken or the motion made, the court may allow the appeal to be taken or the motion to be made by the heir, devisee or personal representative of the decedent, at any time within four months after his death.

Derivation.-Subd. 1, and subd. 2, through word "except" in line 7, are code civ. proc., § 784. Remainder of subd. 2, is code civ. proc., 785. § 784 originally revised from code of proc., § 405, in part.

Application.-Klipstein & Co. v. Marchmedt, 39 Misc. 794, 81 N. Y. Supp. 317.

Time to appeal, extension of.-Humphrey v. Chamerlain, 11 N. Y. 274; Thurber v. Chambers, 60 N. Y. 29; Clapp v. Hawley, 97 N. Y. 611; Baptist Mission Soc. V. Tabernacle Church, 10 App. Div. 288, 41 N. Y. Supp. 976; Donnelly v. McArdle, 14 App. Div. 217, 232, 43 N. Y. Supp. 560; Matter of Seymour, 144 App. Div. 151, 128 N. Y. Supp. 775; Matter of Williams, 6 Misc. 512, 27

35

N. Y. Supp. 433; Stierle v. Union Ry. Co., 11 Misc. 124, 31
N. Y. Supp. 1008; Gabay v. Doane, 38 Misc. 661, 78 N. Y.
Supp. 224; Gersman v. Levy, 58 Misc. 174, 108 N. Y.
Supp. 1107; Louis Levin Cut Glass Co. v. Hinsberger,
144 N. Y. Supp. 741.

Time to appeal by administrator of party dying after entry of judgment.-Warner v. Dunlap (1921), 196 App. Div. 41, 187 N. Y. Supp. 374.

Notice of appeal, amendment.-Lavalle v. Skelly, 90 N. Y. 546; Waldo v. Schmidt, 200 N. Y. 199, 208, affg. 139 App. Div. 589, 124 N. Y. Supp. 189; Winch v. Third Ave. R. Co., 12 Misc. 403, 33 N. Y. Supp. 615; Piper v. Van Buren, 27 Hun 384.

The summons and each pleading in an action must be filed with the clerk by the party in whose behalf it is served within five days after notice from the adverse party requiring such filing, and upon failure to comply with such notice, the court or a judge, in its or his discretion, may order that such summons or pleading be deemed abandoned either absolutely or upon failure to file within a time, if any, permitted by the order.

A return or other paper in a special proceeding, where no other disposition thereof is prescribed by law, must be filed, and an order therein must be entered, with the clerk of the county in which the special proceeding is taken, if it is before a county officer or a judge of a court established in a city; if before a justice of the supreme court, with the clerk of a county designated by the justice; or, if no designation is made by him, of a county where one of the parties resides.

Derivation.-Code civ. proc., § 825; originally revised from L. 1847, ch. 470, § 20.

Reference.-Filing papers in special proceedings, rules of civil practice, 101.

Scope. Sinnott v. First Nat. Bank, 34 App. Div. 161, 54 N. Y. Supp. 417.

Examination in supplementary proceedings.— Matter of Falkenburg, 19 Misc. 418, 43 N. Y. Supp. 1137; s. c., 20 Misc. 692, 46 N. Y. Supp. 675.

36

ARTICLE 8

Mandates

Sec. 102. Duties of officer receiving mandate.

103. Trial of claim of title to property seized by sheriff under a mandate.

104. Expenses of trial of claim of title by third person.

§ 102. Duties of officer receiving mandate.

A sheriff or other officer to whom a mandate of any description is delivered to be executed 1. Must give, without compensation, to the person delivering the same, if required, a written receipt describing the mandate and specifying the day and hour of receiving the same. 2. Must execute the same according to the command thereof and make return thereon of his proceedings. For a violation of this provision he is liable to the party aggrieved for the damages sustained by him, in addition to any fine or other punishment or proceeding authorized by law.

3. Must deliver, without compensation, a copy of the mandate to the person served, upon his request.

4. May return a mandate directed to himself by depositing in the post-office, properly inclosed in a post-paid wrapper, addressed to the clerk, at the place where his office is situated, unless the officer making the return in the name of the sheriff resides in the place where the clerk's office is situated.

5. Who wilfully neglects to execute a mandate, authorized by law to be issued by a judge or other officer, in a special proceeding, may be fined by the judge in a sum not exceeding twenty-five dollars and is liable to the party aggrieved for his damages sustained thereby.

Derivation. Subd. 1 is code civ. proc., § 100. Subds. 2 and 4 are code civ. proc., § 102. Subd. 3 is code civ. proc., $101. Subd. 5 is code civ. proc., § 103. § 100 originally revised from R. S., pt. 3, ch. 7, tit. 6, § 75. § 101, as am. by L. 1877, ch. 416; originally revised from R. S., pt. 3, ch. 7, tit. 6, § 76. § 102, as am. by L. 1877, ch. 416; originally revised from R. S., pt. 3, ch. 7, tit. 6, § 77; L. 1850, ch. 225, § 3.

References.-Mandate defined, general construction L., § 28a; when delivered to coroner, county l., §§ 197-199; service of process by incoming and outgoing sheriff, County L., 195, Liability of sheriff for not returning mandate, judiciary 1., § 758; compelling officer to return, deliver or file paper, rules of civil practice, 6.

Directions to sheriff.-Root v. Wagoner, 30 N. Y. 19. Douglass v. Haberstro, 88 N. Y. 611; Gregg v. Murphy; 73 Hun 389, 26 N. Y. Supp. 556; Crouse v. Bailey, 2 St, Rep. 395; Mickels v. Hart, 1 Den. 548; Corning v. Southerland, 3 Hill 502.

Extension of time for return.-McGuire v. Bausher, 52 App. Div. 276, 65 N. Y. Supp. 382.

Filing return.-Smith v. Geraty, 58 Misc. 566, 109 N. Y. Supp. 738.

Liability of sheriff.-Peck v. Tiffany, 2 N. Y. 451, 555; Root v. Wagner, 30 N. Y. 1, 19; Cozine v. Walter, 55 N. Y. 304, 307; Smith v. Smith, 60 N. Y. 161, 164; Ansonia Brass Co. v. Babbitt, 74 N. Y. 395; Wehle v. Connor, 83 N. Y. 231, 236; Dunham v. Reilly, 110 N. Y. 366, 373; Dolson v. Saxton, 11 Hun 565; Brookfield v. Remsen, 1 Abb. Dec. 210. Agent of creditor. Farmers' Loan, etc., Co. v. Walworth, 1 N. Y. 433, 445.

Liability for acts of deputy.-Vanderbilt v. Richmond Turnp. Co., 2 N. Y. 479, 484; People v. Schuyler, N. Y. 173, 181; Sheldon v. Payne, 7 N. Y. 453; Waterbury v. Westervelt, 9 N. Y. 593, 604; Edmunds v. Barton, 31 N. Y. 495; Douglas v. Haberstro, 88 N. Y. 611, 620; Connor v. Keese, 105 N. Y. 643; Flack v. Brasset, 153 N. Y. 621, 627; Ross v. Campbell, 19 Hun 615; Van Tassel v. Van Tassel, 31 Barb. 439; Pond v. Leman, 45 Barb. 152. Liability of creditor.-Dyett. Hyman, 129 N. Y. 351, 355.

§ 103. Trial of claim of title to property seized by sheriff under a mandate. Where it is specially prescribed by law that a sheriff must or may, in his discretion, impanel a jury to try the validity of a claim of title to or of the right of possession of goods or effects seized by him by virtue of a mandate in an action, interposed by a person not a party to the action, the trial must be conducted in the following manner, except as otherwise specially prescribed by law:

1. The sheriff from time to time must notify as many persons to attend as may be necessary to form a jury of twelve persons qualified to serve as trial jurors in the county cour of the county, or in the city and county of New York, in the supreme court, to try the validity of the claim.

2. Upon the trial, witnesses may be examined in behalf of the claimant and of the party at whose instance the property claimed was taken by the sheriff. For the purpose of compelling a witness to attend and testify, the sheriff, upon the application of either party to the inquisition, must issue a subpoena, as prescribed in section four hundred and six of this act, and with like effect except that a warrant to apprehend or commit a witness in a case specified in such section may be issued by a judge of the court in which the action is brought or by the county judge.