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$ 766. Death, etc., of public officer or trustee.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.

2 R. S. 388, 14; and L. 1832, ch. 295, 23(3 Edm. 674), consolidated. Orser '. Glenville Woolen Co., 11 Abb. N. S. 85; s. c., 60 Barb. 371 ; Poo ple v. Oswego Court, 2 T. & C. 431; Griggs v. Griggs, 66 N. Y. 504; Man. chester v. Herrington, 10 id. 164.

TITLE V.

Motions and orders gonerally.
Sec. 767. Definition of an order.

768. Id.; of a motion.
769. Moilons in supreme court; where to be heard.
770. Motions in New York city.
771. In absence of judge, motion may be transferred to motha

judge.
772, 773. What Judges may make orders out of court, without aotion
774. Review of order made by a judge of another court.
775. When stay of proceedings not to exceed twenty days.
776. Subsequent application for order, after denial, etc., of prior

application.
777. Id.; as to application for Judgment.
778. Penalty for violating last two sections.

779, Costs of a motion; how collected. $ 767. Definition of an order. - 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, un. less it is contained in a judgment, is an order.

Co. Proc., 840, am'di. Bentley v. Jones, 4 low. 333; King w. Staford, 5 10. 30; Howard v. Freeman, 6 Rob. 611; Duane w. North. R. R. Co., 4 How. 364; Hoffman v. Barry, 2 Hun, 52; 8. c., 4 T. & O. 253.

8768. Id.; of a motion. An application for an order in a motion. Id., 8401, subd. l.

$ 769. (Amended, 1879.) Motions in supreme court, where to be heard. - A motion, upor 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:(1) except that where it is triable in the first judicial district,* the motion must be made in that district ; and a motion upon notice, cannot be made in that district in an action triable elsewhere.(2) But this section does not apply to a case where it is specially prescribed by law that a motion may be made in the county, where the applicant, or other person to be affected thereby, or the attorney, resides.

03. Proc., 401, subd. 4, am'd. Phillips v. Wheeler, 6 T. & U. 366; 1.C., 2 Hun, 603; Arred, 14 Aib. L. J. 426 ; Mayer v. Apfel, 28w. 729 Bice v. Ehle, 46 How. 153; 8. C., 65 Barb. 185. (1) Newcombe v. Reed, 14 How. 100; Black mar 0. Vau inwager, 5 id. 367; Geller v. Hoyt, 7 id. 35; Gould o. Chapin, 4 id. 185; Canal Bank o. Jaris, 1 Abt. 192; Bangi o. Selden, 13 How. 163; id. 374; Chubbuck v. Morrison, 6 id. 367; Asking .. Hearns, 3 Abb. 184; Davison v. Powell, 13 How. 237; Hotchkiss r. Crocker, 13 id. 336; Iuglehart v. Johnson, 6 id. 30. (2) Harris v. Clark, 16 How 415; Canal Bank v. Harris, id. 452; 19 Barb. 587; Wheeler 0. Maitland, 12 bow. 35 ; Wells v. Jones, 2 Abb. 20; Sturgess o. Weed, 13 For. 130; Cunningham v. Widing, 5 Abb. 413.

$770. Motions in New-York city.-- In the first iudicial 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.

Id., subd. 2. Disbrow v. Folger, 5 Abb. 54; Main . Pope, 16 How. 371; Lowbero. Mayor, 5 Abb. 325.

8771. In absence of judge, motion may be trans. ferred to another judge. Where notice of a motion is given, or an order to show cause is returnable, before & 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 Diado.

14., 2 404, ato'd. Mathis o. Vall, 10 How. 458. # $ 772. (Amended, 1895.) What judges may make orders out of court without notice. Where an order, in an action, may be made by a judge of the court;(1) out of court, and without notice, and the particular judge is not specially designated by law, it may be vinde by any judge of the court, in any part of the State ; or, except to stay proceedings after verdict,(2) . The words, " the motion must be made in that district", omitted STOP in engrossing

See ante, & 241 ; 13 W. Dig. 156.

report, or decision, by a justice of the supreme court, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides.(3) 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.(4)

In effect Jan. 1, 1896; L. 1895, ch. 946. Co. Proc., & 401, subd. 3; and id., 324, consolidated and am'd. (1) dann v. Tyler, 6 Hlow. 236. (2) Otis v. Spencer, 8 id. 171. (3) Kennedy 1. Simmons, 4 T. & C. 82; s. C., 1 Hun, 603; Parmenter v. Roth,, Abb. N. S. 385; Otis v. Spencer, 8 How. 171. (4) Peck v. Yorks, 24 d. 363; 41 Barb. 347 ; Swift 0. Wylie, 5 Rob. 641; Bank of Genesee v. Spencer, is How. 14; Culver o. Hollister, 17 Abb. 405; Follett v. Weed, 3 How. 560; Lindsay o. Sherman, 5 id. 303; Blake v. Locy, 6 id. 108.

$ 773. The same. 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. New. See preceding section.

$ 774. [Amended, 1877.] Review of order made by a judge of another court. - 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.

Co. Proc.. 8 403, last clause, am'd. See 8 327, ante; also, Temporary Acte 18; Conklin v. Dutcher, 5 How. 386.

8 775. (Amended, 1877.] When stay of proceedings got to exceed twenty days. - An order to stay proceed. lags 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 judgment 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.

Id., 401, subd. 6. Mills . Thursby, 11 How. 114; Sales . Woodin, 8 id. 350; Chubbuck v. Morrison, 6 id. 367; Anonymous, 6 Saddl Kb; Marvin v. Lewis, 12 Abb. 482; Adams v. Sage, 13 How. 18; Balls. Butler, 27 id. 133; Sisson v. Lawrence, 16 Abb. 259, note; 2x How. 454

9. .. Kimball, 9 Abb. 419; 18 How. 163; Clumpha 0. Whiting, 10 Abh Ms; Warren v. Wendell, 13 id. 187.

8776. Subsequent application for order after dental

etc., of prior application. - 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 refei. ence to the same matter, and in the same stage of be proceedings, sball 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 atlidavit, of the facts.

2 R. S. 281, 8 27 (2 Edm. 297): and id. 173, 32 32, 33, and 34 (2 Edim. 179). Schultzer v. Rodewak?, Abb. Y. C. 363 Balike. Moore, 3 lun, 624; Hall v. Emmons, 2 Sweeney, 396; Gould v. Rout, 4 li 11, 554.

8777. Id.; as to application for judgment. 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 judgment shall not be made, at a term held by another juige, 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 pro ceedings thereupon, and subsequent thereto, are fully set forth, in the papers upon which the application in made. Now.

$778. Penalty for violating last two sections. - A person making an application, forbidden by the last too sections, with knowledge of the previous application, shall be punished by the court, for a contempt. 2 R. 8. 281, 828

$ 779. (Amended 1879, 1882 and 1884.) Costs of motion ; how collected. – Where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose by the order, or if no time is so fixed, within ten days after the service of a copy of the order, an execution against the personal property only of the party required to pay the same, may be issued by any party or person to whom the said costs or sum of money is made pays able by said order, or in case permission of the court shall be first obtained by any party or person having an interest in compelling payment thereof, which execution shall be in the same form, as nearly as may be, as an execution upon a judgment, omitting the recitals and directions relating to real property: and all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed without further direction of the court, until the payment thereof. But the adverse party may, at his election, waive the stay of proceedings. Where the order directs that the costs of a notion

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report, or decision, by a justice of the supreme court, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides.(3) 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.(4)

In effect Jan. 1, 1896; L. 1895, ch. 946. Co. Proc., & 401, subd. 3; and id., { 324, consolidated and am'd. (1) dann v. Tyler, 6 Hlow. 236. (2) Otis v. Spencer, 8 1d. 171. (3) Kennedy v. Simmons, 4 T. & C. 82; s. C., I Hun, 603; Parmenter v. Both, 9 Abb. N. 8. 385; Otis v. Spencer, 8 How. 171. (4) Peck v. Yorks, 24' 1d. 363; 41 Barb. 847 ; Swift o. Wylie, 5 Rob. 641; Bank of Genesee v. Spencer, L5 How. 14; Culver o. Hollister, 17 Abb. 405; Follett v. Weed, 3 How. 860; Lindsay o. Sherman, 5 id. 303; Blake v. Locy, 6 id. 108.

§ 773. The same. 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. New. See preceding section.

$ 774. [Amended, 1877.] Review of order made by a judge of another court. – 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.

Co. Proc.. $ 403, last clause, am'd. See 8 327, ante; also, Temporary sothe 18; Conklin v. Dutcher, 5 How. 386.

$ 775. (Amended, 1877.] When stay of proceedings got to exceed twenty days. - An order to stay proceedlags 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 judgment 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.

Id., & 401, subd. 6. Mills v. Thursby, 11 How. 114; Sales .. Woodin, 8 id. 350; Chubbuck v. Morrison, 6 id. 367 ; Anonymous, 6 Sandl 166; Marvin v. Lewis, 12 Abb. 482; Adams v. Sage, 13 Low. 18; Balls. Butler, 27 id. 133; Sisson v. Lawrence, 16 Abb. 259, note; 25 How. 45 Harris v. Clark, 10 1d. 416; Hempstead v. Hempstead, 1 id. ; Wood 1. Kimball, 9 Abb. 419; 18 How. 163; Clumpha 0. Whiting, 10 Abh 48; Warren o. Wendell, 13 id. 187.

8 776. Subsequent application for order after dental

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