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ARTICLE X.

PAYMENT INTO Court. (For voluntary payment, to obtain interpleader, see p. 1463. For compulsory payment of deposit admitted to be due, see Vol. I, p. 1142. For payment of proceeds of sale under judgment, see Chapter XVI, Article III.)

1. Effect of payment.

FORMS.
(1312) Order allowing money to be

paid into court
(1313) Notice of payment into

court. (1314) Certificate that money has

been paid into court.

(1315) Notice of acceptance of pay.

ment. (1316) Affidavit to obtain order for

payment out of money in

court. (1317) Notice of motion (or order

to show cause) thereon. (1318) Order for payment of money

out of fund in court.

1. Effect of payment.] — When a debt is due, a tender of the entire amount with no condition attached, and the payment thereof into court pursuant to its order, even if not accepted, is an absolute transfer of the money to the creditor. When the sum tendered is less than the amount due, it is a conclusive admission of the indebtedness to the extent of the tender, regardless of the final result of the action, and not only does the party paying it into court lose all right to it, but the court itself has no power to make an order in the same action, which, in effect, retransfers the title. Relief from mutual mistake, or mistake on one side and fraud on the other, can be had, if at all, only in an independent action brought for the purpose. The same rule prevails whether the action is in tort or on contract. Refusal of the creditor to accept, or the death of either party, or the commencement of another action, does not change the effect, for the title passes by operation of law the same as if the tender had been accepted. The transfer is complete and cannot be changed without consent, or a decree in equity, from the moment the court takes control of the money. If the plaintiff goes on with the action and is nonsuited, or the verdict is against him, or is for a sum less than the amount tendered and paid into court, still the defendant cannot take the money back, for it is not his, but has passed irrevocably to the adversary.20

20 Mann u. Sprout, 185 N. Y. 109.

FORM No. 1312. Order allowing money to be paid into court.21 [Name of] Court (or if a court order], At a Special Term [etc.,

as in Form 820, p. 1174]. Upon the pleadings in this action and on reading and filing the annexed affidavit of M. N., verified on the day of 19 , from which it appears that on the day of , 19 , [within ten days] the defendant tendered plaintiff the sum of

dollars and . dollars costs; now, on motion of 2. T., attorney for the defendant herein,

ORDERED, 1. That defendant have leave to bring into court, by paying the same to the county treasurer of

county, the sum of dollars, admitted by him to be due the plaintiff herein, together with

dollars, plaintiff's costs to date. 2. That the plaintiff have leave at any time to take said money out of court.

Enter: [signature of judge by initials of name and title.]

[File certified copy with the depositary. N. Y. General Rules, No. 68.]

21 The power of the court to allow voluntary payment into court, by way of narrowing or superseding the issue raised, is inherent. Dakin v. Dunning, 7 Hill, 30; Wilson v. Doran, 39 Hun, 88. But the practice has been extended and regulated in some detail by statute. N. Y. Code Civ, Pro., 88731-734.

Payment into court in ejectment for non-payment of rent, see N. Y. Code Civ. Pro., 88 1506, 1508. On foreclosure commenced for non-payment of an instalment, Id., 88 1634, 1635.

The order, which was a common order under the former practice, and is usually made ex parte now, may be applied for on affidavit, or on the pleadings, or even the complaint alone. And doubtless may be made by a judge. Vol. I, p. 89.

It is the better practice always to take an order giving leave. Wilson v. Doran, 39 Hun, 88. Payment to the clerk without such leave has been held ineffectual. Davidson v. Lamp rey, 16 Minn, 405.

The clerk ought not to receive money offered as paid into court, without an order authorizing it. Baker v. Hunt, I Wend. 103 (holding that therefore he might return it and was not thereafter liable to plaintiff as if he had kept it).

Compulsory payment of a sum admitted has already been treated Vol. I, p. 1142

The court has inherent power to require its officer, having possession of a fund in litigation (Matter of Swerarton, 20 Wkly. Dig. 378, attorney); or one who obtained possession of the fund by judicial appointment which he has since resigned (People ex rel. Dennis v. Kent Circuit Judges (Mich., 1886), 3 N. W. Rep. 644, special administrator); or any one who has wrongfully withdrawn a fund from the court (Osborn v. United States, 91 U. S. 474), to refund it. Compare, as to other remedies also, Keiley v. Dusenbury, 42 N. Y. Super. Ct. 238 (aff'd, 77 N. Y. 597, without opinion); De Bussierre t. Holla. day, 4 Abb. N. C. 111, 112, note.

FORM No. 1313.

Notice of payment into court.22 [Title of court and action.]

Please take notice, that the within is a copy of an order entered in this action on the day of ; 19 ; and that the said sum of dollars has been this day duly paid into court, pursuant thereto. [Date.]

[Signature and office address of], [Address] To

Attorney for
Attorney for

FORM No. 1314. Certificate that money has been paid into court.23 [Title of court and action.] [Venue.]

The undersigned, M. N., treasurer of the County of [or, chamberlain of the county of New York), hereby certifies that on the day of , 19 , Y. Z., defendant herein [or, the sheriff of said county), deposited in this court the sum of dollars, pursuant to the order of which a copy is annexed (or otherwise, as thus: as having been paid to him by Y. Z., the defendant, in lieu of an undertaking of bail in this action). [Date.]

[Signature of],
Treasurer of

county.

FORM No. 1315.24

Notice of acceptance of payment. [Title of court and cause.]

Please take notice, that the plaintiff accepts the sum of dollars, paid by the defendant into court, in satisfaction of the claim in this action. [Date.]

[Signature and office address of], [Address] TO

Attorney for plaintiff. Attorney for defendant.

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23 N. Y. Code Civ. Pro., 8 745.

24 N. Y. Code Civ. Pro., $ 732; Johnson v. Covert, 3 Monthly L. Bul. 91; Mela v. Geis, 3 Civ, Pro. Rep. 152.

FORM No. 1316. Affidavit to obtain order for payment out of money in court.25 [Title of court and action.] [Venue.]

Y. Z. being duly sworn, says:

1. That he is the defendant above named (or otherwise state relation to the cause.]

II. [State circumstances of payment into court and show applicant's right.26]

III. [If order to show cause is asked, state as on p. 1172.] [Jurat.]

[Signature.] [Append certificate of depositary showing amount of fund; and any consent of a party relied on, acknowledged.or]

andring M. Ni to pay to the defendants

FORM No. 1317. Notice of motion (or order to show cause) thereon.28 [Title and recitals as in Form 815, or 818, stating relief, as thus:] requiring M. N., county treasurer [or, chamberlain of the county of New York), to pay to the defendant Y. Z. or his attorney dollars, the amount of defendant's costs in this action, out of the sum of dollars deposited by the plaintiff with said

in lieu of the usual undertaking required by law on the granting of an order of arrest.

25 See Tunstall v. Winton, 31 Hun, 231.

The court may act upon motion on affidavits; but the Court of Chancery was accustomed, except in clear cases (Heathcote 0. Edwards, Jac, 504; Oliver v. Burt, 1 Beav. 583), to require a petition. Under the present practice a petition is more appropri. ate if persons not parties to the action apply or are to be notified and heard, and it is also commonly resorted to where a contest is expected and the formal trial of an issue de. sired. See Vol. I, p. 306, etc.

26 As to the right in case of a tardy application after partial distribution, see In re Howard, 9 Wall. 175; Kerr v. Blodgett, 48 N. Y. 62, and 16 Abb. Pr. 137; and see p. 1110, Volume I, note 61.

27 Consents to payment must be acknowledged, and proof of the identity of the applicant must accompany the application and be made by some other person. See N. Y. Gen. Rules No. 12.

28 Only granted on notice to the attorneys of all who have appeared. N. Y. Gen. Rules No. 69.

FORM No. 1318. Order for payment of money out of fund in court.29 (Title of action.]

At a Special Term [etc., as in

Form 820, p. 1174]. [Title (court order) and recitals according to the case; see Form

820, p. 1174, stating relief as thus:]30

ORDERED, that said motion be and the same is hereby granted, and the treasurer of the county of

is hereby directed to pay, out of the funds remaining on deposit in his hands to the credit of this action, to the defendant, [or to T. Z., his attorney,31] the sum of dollars [being costs awarded defendant by the order and remittitur of the Court of Appeals, filed herein on

, 19 , together with interest on said sum from the day of , 19, to this date amounting in the aggregate to the sum of $ ], and that the said treasurer pay the balance thereof, to wit, the sum of $ and accrued interest, if any, to the plaintiff (or to A. T. his attorney).

Enter: (signature of judge by initials of name and title.]

[Obtain and deliver two certified and countersigned copies according to N. Y. Gen. Rules, No. 69.]

> For the inherent power of the court to direct that a deposit taken by it as a security be passed over, see Russell v. Farley, 105 U. S. 433-442.

30 That an ex parte order may protert the treasurer, see People ex rel. Morris v. Randall, 73 N. Y. 416; Swart c. Cent. Tr. Co., 7 N. Y. Supp.

558. But N. Y. Gen. Rule No. 69 requires notice to all attorneys appearing for parties.

31 As to the power of the attorney of record to receive payment, Hiller 1. Prewatt, 37 Miss. 431; Spencer's Appeal (Penn., 1887), 8 Cent. Rep. 207.

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