§ 167, Consol. Act. 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 1eferred 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, r 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 warrant 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. § 754. 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. § 755. Action; when not to abate. 757. Id., when sole party dies 759, 760. Id., when part of cause 761. When court may order ac tion abated. § 762. Special cases excepted. 763. Death of party after ver- 764. Action for a wrong not to § 755. [Am'd 1891.] 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 proceeding survives or continues, but this provision as to a special proceeding applies only to cases where a party dies after this act takes effect. $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. 4 Civ. Pro. 76; 94 N. Y. 519; 23 Week. Dig. 193; 1 How. Pr. N. S. 508; 43 Hun, 328; 133 N. Y. 9. $ 757. [Am'd 1877, 1879, 1891.] 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 sucessor in interest. In case of the death of a sole party to a special proceeding after this act takes effect, if the right to the relief sought in such proceeding survives or continues, the court must, upon a motion, allow or compel such proceed. ing to be continued by or against his representative, or successorin interest. This provision as to a special proceed ng does not apply where provision for such continuance has been otherwise made by law. 3 Dem. 236. 115 N. Y. 493. 17 Week. Dig. 288. 18 Week. Dig. 119. 2 Dem. 489. 21 Hun, 136. 82 N. Y. 599. 90 N. Y. 461. 30 Hun, 441; 44 Id. 517. 27 Hun, 18. 111 N.Y.350. C. 284; 115 80 N.Y.State Id. 182. 136 N.Y. 214. 23 Abb. N. C. 290. 77 N. Y. 480. 23 Hun, 188; 31 Id. 390. 5 Dem. 124. 14 Civ Pro. 435. 25 N. Y. State Rep. 978. 130 N.Y. 313, 23 Abb. N. C. 290. 284. § 758. [Am'd 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. 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 or 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. [Am'd 1879.] In a case specified in the foregoing 22 Abb. N.C. 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 plead ings 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 orig. inal action and the cross action must be tried, and judgment rendered therein, as if they were one action. § 761. [Am'd 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 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. The foregoing provisions of this title do not apply to a case where special provision is otherwise made by law. *So in original. 5 Dem. 377. 763. If either party to an action dies, after an accepted 77 N. Y. 515. 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. § 764. [Am'd 1881, 1890.] 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. 114 N.Y. 579. 22 Abb. N. C. 281; 24 Id. 538. 3 Month. L. Bul. 48. 2 Civ. Pro. $ 765. This title does not authorize the entry of a judg ment against a party, who dies before a verdict, report, or decision is actually rendered against him. In that case the 149. verdict, report, or decision is absolutely void. § 766. 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. 2767. Definition of an order. 770. Motions in New York city. tion may be transferred to another judge. 772,773. What judges may make orders out of court, without notice. 774. Review of order made by another judge. 2775. When stay of proceedings 776. Subsequent application for 778. Penalty for violating last 779. Costs of a motion; how 767. A direction of a court or judge, made, as prescribed in this act, in an action or special proceeding, must be in writing, unless otherwise specified in the particular case. Such a direction, unless it is contained in a judgment, is an order. § 768. An application for an order is a motion. 3 Dem. 236. 96 N. Y. 32. 135 N. Y. 76. ? 1117, Consol. Act. 62 How. Pr. 327. § 769. [Am'd 1879.] A motion, upon notice, in an action in the supreme court, must be made within the judicial district, in which the action is triable, or in a county adjoining that in which it is triable; except that where it is triable in 27 Hun, 21; the first judicial district, the motion must be made in that dis- 28 Id. 294. trict; and a motion, upon notice, cannot be made in that 6 Civ. Pro. district, in an action triable elsewhere. But this section does 90; 1d. 106. not apply to a case, where it is specially prescribed by law, 44 Hun, 45. that a motion may be made in the county, where the applicant, or other person to be affected thereby, or the attorney resides. § 770. In the first judicial district, a motion which elsewhere must be made in court, may be made to a judge out of court, except for a new trial on the merits. § 771. Where notice of a motion is given, or an order to show cause is returnable, before a judge, out of court, who, at the time fixed for the motion, is or will be absent, or unable, for any other cause, to hear it, the motion may be transferred, by his order, made before or at that time, or by the written stipulation of the attorneys for the parties, to another judge before whom it might have been originally made. § 772. [Am'd 1877. Where an order, in an action, 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 a judge of a superior city court within the city wherein his court is located, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides. 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. $ 773. The limitation, contained in the last section, of the county judges, who may make an order, does not apply to a case where it is prescribed in this act, in general words, that a particular order may be made by a county judge, or by any county judge. S774. [Am'd 1877.] An order, made by a judge of a court other than the court in which the action is pending, may be reviewed in the same manner, as if it was made by a judge of the court, in which the action is pending. § 775, Am'd 1377.] An order to stay proceedings in an action, for a longer time than twenty days, shall not be made by a judge, out of court, except to stay proceedings under an order or judginent appealed from, or where it is made upon notice of the application to the adverse party, or in cases where special provision is otherwise made by law. § 776. If an application for an order, made to a judge of the court, or to a county judge, is wholly or partly refused, or granted conditionally, or on terms; a subsequent application, in reference to the same matter, and in the same stage of the proceedings, shall be made only to the same judge, or to the court. If it is made to another judge, out of court, an order granted thereupon must be vacated by the judge who made it, or, if he is absent, or otherwise unable to hear the application, by any judge of the court, upon proof, by affidavit, of the facts. 777 Where an application is made to the court for judgment, it cannot be withdrawn, without the express permission of the court; and a subsequent application for judg ment shall not be made, at a term held by another judge, except where the first application is so withdrawn; or where the directions, given thereupon, require an act to be done, before judgment can be rendered; or where the fact of the former application is stated, and the proceedings thereupon, |