Page images
PDF
EPUB

vice upon

Id., part of 73, amended. King v. West, 10 How, 333; Husted o. Dakin, 17 Abb. 137; Mutual Life Ins. Co. of N. Y. v. Bowen, 47 Barb, 618; Livingston v. Meldrum, 19 N. Y. 440; Averill v. Loucks, 6 Barb. 470, Winslow v. McCall, 32 id. 241; Root v. Wheeler, 12 Abb. 294 Mat. thews v. Duryea, 45 Barb. 69: 8. C., 17 Abb. 256; Blydenburgh 0. Northrop, 13 IIow. 289; Russell v. Dufon, 4 Lans. 399; Eddy v. Smith, 13 Wend. 483; Waller v. Harris, 7 Paige, 167 ; Winslow v. McCall, 32 Basta 341 ; Story v. Hamilton, 10 Week. Dig. 13.

§ 2406. Application for surplus money.- A person filing a petition, as prescribed in the last section, may, after the expiration of twenty days from the day of sale, apply to the supreme court, at a term held within the judicial district, embracing the county where his petition is filed, for an order, pursuant to the prayer of his petition. Notice of the application must be served, in the manner prescribed in this act for the service of a paper upon an attorney in an action, upon each per. son, who has filed a like petition, at least eight days before the application; and also upon each person, upon whom a notice of sale was served, as shown in the affi. davit of sale, or upon his executor or administrator. But, if it is shown to the court, by affidavit, that ser

person, required to be served, cannot be so made with due diligence, notice may be given to him in any manner which the court directs. Id., part of 3, amended.

§ 2407. Order for distribution.- Upon the presenta tion of the petition, with due proof of notice for application, the court must make an order referring it to a suitable person to ascertain and report the amount due to the petitioner, and to each other person, which is a lien upon the surplus money, and the priorities of the several liens thereupon. Upon the coming in and confirmation of the referee's report, the court must make such an order, for the distribution of the surplus money, as justice requires.

Id., remainder of 83, amended. Averill v. Loncks. 6 Barb. 470; Tallman v. Farley, idi. 280 ; Cook v. Kraft, 3 Lans. 512; 8. C., 41 How. 279 60 Barb. 410; Thomas v. Keiser, 30 id. 268; Freeman v. Schroeder, & id. 618; Peabody v. Roberts, 47 id. 91; People v. Bergen, 15 Abb. N. S. $7; 8. C., 53 N. Y. 404 ; N. Y. L. Ins. & Trust Co. v. Vanderbilt, 12 Abb. 458; Clark's Case, 15 id. 227; Stevens o. Bank of Central N. Y., 31 Barb. 290.

$ 2408. Limitation of last four sections. The last four sections do not apply to surplus money, arising upon the sale of real property, of which & decedent died seized, whwe letteis testamentary or letters of ad

ministration, upon the decedent's estate, were within four years before the sale, issued from a surrogate's court' within the State, having jurisdiction to issue them.

L. 1867, ch. 658 (7 Edm. 142); L. 1870, ch. 170 (7 Edm. 664), and L. 1871, ch. 834 (9 Eum. 210); see, also, 8 2798, post.

§ 2409. [Amended, 1882.] Application of this title to mortgages of the State.—This title does not affect any provision of law, inconsistent therewith, especially relating to the foreclosure of mortgages to the people of the State, or to the commissioners for loaning certain moneys of the United States,

Section 15 of part 3, ch. tit. 15, R. S., amended, Thompson v. The Commissioners, etc., Ct. App., Nov. 25, 1879, 21 Alb. L. J. 16.

TITLE X.*
Proceedings to change the name of an individual or

corporation. SEU. 2410. Petition by individnal.

2411. Petition by corporation.
2412. Contents of petition.
2413. Notice of presentation of petition.
2414. Order.
2415. When change to take effect.
2416. Substitution of new name in pending action or pro-

ceeding. 2417. Reports by clerks to state officers. $ 2410. (Amended, 1895.] Petition by individual. - A petition for leave to assume another name may be made by a resident of the state to the county court of the county in which he resides, or, if he resides in the city of New York, either to the supreme court, or to the city court of New York. The petition of an in

* Whole title amended 1893.

fant shall be made by his general guardian, or by the guardian of his person, or by his next friend. In effect Jan. 1, 1896 ; L. 1895, ch. 946.

§ 2411. Petition by corporation.-A petition to assume another corporate name may be made by a do. mestic corporation, whether incorporated by a general or special law, to the supreme court at a special term thereof, held in the judicial district in which its principal business office shall be situated, or, if it be other than a stock corporation, at a special term held in the judicial district in which its certificate of incorporation is filed or recorded, or in which its principal property is situated, or in which its principal operations are or theretofore have been conducted. If it be a banking, insurance or railroad corporation, the petition must be authorized by a resolution of the directors of the corporation, and approved if a banking corporation, by the superintendent of banks; if an insurance corporation, by the superintendent of insurance, and if a railroad corporation, by the board of railroad commissioners. The petition to change the name of any other corporation must have annexed thereto a certificate of the secretary of state, that the name which such corporation proposes to assume is not the name of any other domestic corporation or a name which he deems so nearly resembling it, as to be calculated to deceive.

& 2412. Contents of petition.-The petition must be in writing, signed by the petitioner and verified in like manner as a pleading in a court of record, and must specify the grounds of the application, the name, age and residence of the individual whose name is proposed to be changed, and the name which he proposes to assume, and if the petitioner be a corporation, its present name, and the name it proposes to assume, which must not be the name of any other corporation, or a name so nearly resembling it as to be calculated to deceive; and if it be a railroad corporation, a corporation having banking powers or the power to make loans upon

pledges or deposits, or to make insurances, that the petition has been duly authorized by a resolution of the directors of the corporation and approved by the proper officer,

§ 2413. (Amended, 1894.] Notice of presentation of petition.— If the petition be to change the name of an infant, and is made by the infant's next friend, notice of the time and place at which the petition will be presented must be served upon the father, or if he is dead or cannot be found, upon the mother, or if both are dead or cannot be found, upon the general guardian or guardian of the person of the infant, in like manner as a notice of a motion upon an attorney in an action, unless it appears to the satisfaction of the court that the infant has no father or mother, or that both reside without the State or cannot be found, and that he has no guardian residing within this State, in which case the court may dispense with notice or require notice to be given to such persons and in such manner as the court thinks proper. If the petition be made by a corporation located elsewhere than in the city and county of New York, notice of the presentation thereof shall be published once in each week for six successive weeks in the State paper (at Albany, in which notices by State officers are authorized by law to be published), and in a newspaper of every county in which such corporation shall have a business office, or if it has no business office, of the county in which its principal corporate property is situated or in which its operations are or theretofore have been principally conducted, which newspaper, if it be a banking corporation, shall be designated by the superintendent of banks, if any insurance corporation by the superintendent of insurance, or if a railroad corporation, by the railroad commissioners. In the city and county of New York such notice shall be published once in each week for six successive weeks in two daily newspapers published in such county. In effect April 4, 1894 ; Laws 1894, ch. 264.

§ 2414. (Amended, 1895.] Order.— If the court to which the petition is presented is satisfied thereby, or by the affidavit and certificate presented therewith, that

the petition is true, and that there is no reasonable objection to the change of name proposed, and if the petition be to change the name of an infant, that the interests of the infant will be substantially promoted by the change, and if the petitioner be a corporation, that the petition has been duly authorized and that notice of the presentation of the petition, if required by law, has been made, the court shall make an order authorizing the petitioner to assume the name proposed on a day specified therein, not less than thirty days after the entry of the order. The order shall be directed to be entered and the papers on which it was granted to be filed within ten days thereafter in the clerk's office of the county in which the petition resides if he be an individual, or in the office of the clerk of the city court of New York if the order be made by that court, or, if the petitioner be a corporation, in the office of the clerk of the county in which its certificate of incorporation, if any, shall be filed, or if there be none filed, in which its principal office shall be located, or if it has no business office, in the county in which its principal property is situated, or in which its operations are or theretofore have been principally conducted, or in the office of the clerk of the county in which the special term granting the order is held; and, if the petitioner be a corporation, that a certified copy of such order shall, within ten days after the entry thereof, be filed in the office of the secretary of state; and also, if it be a banking corporation, in the office of the superintendent of banks, or if it be an insurance corporation, in the office of the superintendent of insurance, or if it be a railroad corporation, in the office of the board of railroad commissioners. Such order shall also direct the publication, within ten days after the entry thereof of a copy thereof in a designated newspaper, in the county in which the order is directed to be entered, at least once if the petitioner be an indi. vidual, or if the petitioner be a corporation, once in each week for four successive weeks. The county clerk, in whose office an order changing the name of a corpora. tion is entered, shall record the same at length in the

« PreviousContinue »