person, without the direction of the court, or of another court of competent authority; except in a case where a party, or his attorney, is specially authorized by law to amend a pleading. 728. The want of a title, or a defect in the title, of an 60 How. Pr. affidavit, does not impair it, if it intelligibly refers to the act- 205. ion or special proceeding, in which it is made. § 729. A bond or undertaking, required by statute to be given by a person, to entitle him to a right or privilege, or to take a proceeding, is sufficient, if it conforms substantially to the form therefor, prescribed by the statute, and does not vary therefrom, to the prejudice of the rights of the party, to whom, or for whose benefit it is given. 730. Where such a bond or undertaking, is defective, 76 N.Y. 596. the court, officer, or body, that would be authorized to receive it, or to entertain a proceeding in consequence thereof, if it was perfect, may, on the application of the persons who executed it, amend it accordingly; and it shall thereupon be valid, from the time of its execution. TITLE II. Tender, and other offers and requests to the adverse party 2731. Tender after suit. 2737. Effect of refusal of offer. promise; proceedings 739. Plaintiff's offer to compro- § 731. Where the complaint demands judgment for a sum of money only; and the action is brought to recover a sum certain, or which may be reduced to certainty by calculation; or to recover damages for a casual or involuntary personal injury, or a like injury to property; the defendant, or his attorney, may, at any time before the trial, tender to the plaintiff, or his attorney, such a sum of money, as he conceives to be sufficient to make amends for the injury, or to pay the plaintiff's demand; together with the costs of the action, to that time. 119 N.Y. 561. § 732. [Am'd 1877.] A tender, made as prescribed in the 3 Civ. Pro. last section, does not avail the defendant, unless the money 152. is accepted, or is paid into court and notice thereof in writing 110 N.V. 101; served upon the plaintiff's attorney before the trial and with- 119 Id. 561. in ten days after the tender. If the plaintiff takes out the amount paid in, he accepts the tender. § 733. If it appears, upon the trial, that the sum so tendered was sufficient to pay the plaintiff's demand, or to make amends for the injury, and also to pay the costs of the action, to the time of the tender, the plaintiff cannot recover costs or interest, from the time of the tender, but must pay the defendant's costs from that time. § 734. If the plaintiff proceeds in the action, after accepting the tender, the sum accepted must be deducted from the recovery, and judgment rendered for the residue, if any; and if the tender and acceptance do not appear in the plead ings, a memorandum thereof must be annexed to the judgment-roll. The plaintiff's right to recover costs, and his liability to pay costs to the defendant, are determined by the amount of the residue. § 735. The attorney for a party may, at any time before the trial, exhibit to the attorney for the adverse party, a paper, material to the action, and request a written admission of its genuineness. If the admission is not given, within four days after the request, and the paper is proved or admitted on the trial, the expenses incurred by the party exhibiting it, in order to prove its genuineness, must be ascertained at the trial, and paid by the party refusing the admission; unless it appears to the satisfaction of the court, that there was a good reason for the refusal. § 736. In an action to recover damages for breach of a contract, the defendant's attorney may, with the answer, serve upon the plaintiff's attorney, a written offer, that, if the defendant fails in his defence, the damages may be assessed at a specified sum. If the plaintiff serves notice, that he accepts the offer, with or before the notice of trial, and damages are awarded to him on the trial, they must be assessed accordingly. § 737. [Am'd 1877.] If the plaintiff does not accept the offer, he can not prove it, upon the trial. But if the damages, awarded to him, do not exceed the sum offered, the defendant is entitled to recover the expenses, necessarily incurred by him in preparing for the trial of the question of damages. The expenses must be ascertained and the amount thereof determined, by the judge, or the referee, by or before whom the cause is tried. § 738. [Am'd 1877.] The defendant may, before the trial, serve upon the plaintiff's attorney, a written offer, to allow judgment to be taken against him, for a sum, or property, or to the effect, therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may be taken. If the plaintiff, within ten days thereafter, serves upon the defendant's attorney, a written notice that he accepts the offer, he may file the summons, complaint, and offer, with proof 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 plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time. § 739. [Am'd 1877.] Where the defendant sets up a counterclaim, to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff's recovery below fifty dollars, the plaintiff may serve, upon the defendant's attorney, a written offer, to allow judgment to be taken against him, for a specified sum, with costs, or against the defendant for a specified sum, and against the plaintiff for costs. If the defendant, within ten days thereafter, serves, upon the plaintiff's attorney, notice that he accepts the offer, either party may file the summons, complaint, answer, and offer, or copies thereof and proof of acceptance; and thereupon the clerk must enter judgment accordingly. If notice of acceptance is ot thus given, the offer cannot be given in evidence, upon The trial; but, if the recovery is not more favorable to the efendant than that so offered he will not be entitled to reover costs from the time of the offer, but must pay costs rom that time. § 740. Unless an offer or an acceptance, made as precribed in either of the last four sections, is subscribed by he party making it, his attorney must subscribe it, and anex thereto his affidavit, to the effect that he is duly authorzed to make it, in behalf of the party. $741. (Repealed 1877.) 8742. (Repealed 1877.) TITLE III. Payment of money into court, and care and disposition thereof. 743. Party bringing money into court is discharged. 744. General rules may regu- 745, Money to be paid to county 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 treasur r 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. 8744 [Am'd 1892.] 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 seven hundred and forty-seven of this act. § 1085 Consol. Act. §§ 1161, 1265 $ 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 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 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. § 746. [Am'd 1892.] All funds or moneys paid into court shall be deposited in such savings banks, 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 depos ited in the county where the fund belongs, where it can be done conveniently and safely and with advantage to the parties interested. The depositaries designated shall pay a fair rate of interest and before receiving any such deposits, 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 lanker shall be located, and by the comptroller of the State, and filed in the office of the comptroller. § 747. [Am'd 1892.] Each court may direct that Consol. Act. 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, re-invested, or deposited in any manner or form that ap pears to it best for the interests of the owners thereof. such directions must be embodie I 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. S$ 1161, 1265 Consol. Act. But § 748. [Am'd 1892.] The provisions of the last preceding section shall apply to all courts of record of the State. $749. [Am'd 1877.] A county treasurer, or other offi cer, 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 moner, 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. 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. § 751. [Am'd 1892.] 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. Each order must be countersigned by the presid ing judge by whose direction it is made. § 752. [Am'd 1892.] Every officer having charge of moneys, securities or other property in the custody of the court, shall keep a book or books in which he shali 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. $753. [Am'd 1877, 1892.] 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 |