Parson's Complete Annotated Pocket Code

§ 815. Bonds, etc., not affected by change of parties. - A bond or undertaking, given in an action or special proceeding, as prescribed in this act, continues in force, after the substitution of a new party in place of an original party, or any other change of parties; and has thereafter the same force and effect, as if then given anew, in conformity to the change of parties.

New. See Potter v. Van Vranken, 36 N. Y. 619.

816. Id.; to be filed. A bond or undertaking, required to be given by this act, must be filed with the clerk of the court; except where, in a special case, a different disposition thereof is directed by the court, or prescribed in this act.

Co. Proc., 423, am'd. Rice v. Whitlock, 15 Abb. 419.

ARTICLE SIXTH.

OTHER MATTERS.

SEO. 817. Consolidating causes in same court.

818. Id.; in different courts.

819. Id.; by plaintiff.

825. Papers in special proceedings; where to be filed.

826. Publication, where no newspaper, etc., in county.
827. Special references in certain cases.

§ 817. Consolidating causes in same court. Where two or more actions, in favor of the same plaintiff against the same defendant, for causes of action which may be joined, are pending in the same court, the court may, in its discretion, by order, consolidate any or all of them, into one action.

2. R. S. 383, 36 (2 Edm. 398); Briggs v. Gaunt, 4 Duer, 664; 2 Abb. 77 Pierce v. Lyon, 3 Hill, 450; Wilkinson v. Johnson, 4 id. 46; Dunning Bank of Auburn, 19 Wend. 23; Brewster v. Stewart, 3 id. 442; Cooper Weed, 2 How. 40; Clark v. Metropolitan Bank, 5 Sandf. 665; Dunn v. on, 7 Hill, 154; Crane v. Koehler, 6 Abb. 328; People v. McDonald 189; Potter v. Pattengill, 8 Abb. 189; Percy v. Seward, 6 Abb. ank of U. S. v. Strong, 9 Wend. 451; Blake v. Mich. South. B. B How. 28.T

18. Id.; in different courts.- Where one of the is pending in the supreme court, and another is in another court, the supreme court may, by

order, remove to itself the action in the other court, and consolidate it with that in the supreme court.

2 B. S. 383, § 37.

§ 819. Id.; by plaintiff. - Where separate actions are commenced against two or more joint and several debtors, in the same court, and for the same cause of action, the plaintiff may, in any stage of the proceedmgs, consolidate them into one action.

Id., 38. Briggs v. Gaunt, 4 Duer, 664; 8. c., 2 Abb. 77.

§ 820. [Amended, 1877.] Interpleader by order in ertain cases.-A defendant, against whom an action to ecover upon a contract, or an action of ejectment, or in action to recover a chattel, is pending, may, at any ime before answer, upon proof, by affidavit, that a person, not a party to the action, makes a demand against him for the same debt or property, without collusion with him, apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt, or delivering the possession of the property, or its value, to such person as the court directs. The court may, in its discretion, make such an order.

Co. Proc., 122, last sentence. Dorn v. Fox, 61 N. Y. 264; Barry v. Mut. Life Ins. Co., 56 id. 536; Howland v. Lounds, 51 1d. 609; N. Y. & H. R. R. Co. v. Haws, 35 N. Y. Supr. 372; Beck r. Stephani, 9 How. 193; Bidell v. Hoffman, 2 Paige, 200; Sherman v. Partridge, 1 Abb. 260; 11 How. 154; 4 Duer, 646; Vosburgh v. Huntington, 15 Abb. 254; Marvin. Elwood, 11 Paige, 374; Oppenheim v. Wolfe, 3 Sandf. Ch. 571; Van Buskirk v. Roy, 8 How. 425; New Haven R. R. Co. v. Schuyler, 1 Abb. 4, 417; Eagleson v. Clark, 2 id. 364; Atkinson v. Manks, 1 Cow. 703; haw v. Coster, 8 Paige, 339: Wilson v. Duncan, 11 Abb. 7; McGaw v. Adams, 14 How. 461; U. S. v. Vietor, 16 Abb. 153; Bell v. Hunt, 3 Barb. Ch. 391; Thompson v. Ebbetts, 1 Hopk. 272; Mohawk R. R. v. Clute, 4 Paige, 384; Patterson v. Perry, 14 How. 505; Bender v. Sherwood, 15 id. 259: Wilson v. Duncan, 8 Abb. 354; Winfield v. Bacon, 24 Barb. 155; Dry Dock Metho. Church v. Carr, 2 id. 60; Chamberlain v. O'Conner, 8 How. 45; Lund v. Seamans' Savings Bank, 20 id. 461; 23 id. 258; Seaman v. Wright, 12 Abb. 304: Badeau v Tylee, 1 Sandf. Ch. 270; Wakeman v. Dickey, 19 Abb. 24; Morgan v. Fillmore, 18 id. 217; McHenry v. Hazard 45 Barb. 657; U. S. Trust Co. v. Wiley, 41 id. 477; Schuyler v. Hargous, 28 How. 245; 3 Rob. 673; McKay v. Draper, 27 N. Y. 256: Wash. Ins. Co. v. Lawrence, 28 How. 435; Fletcher v. Troy Savings Bank, 14 id. 383; Johnston v. Lewis, 4 Abb. N. S. 150; Miller v. De Peyster, 1 Abb. 234 Dorn v. Fox, 6 Lans. 162.

§ 821. [Amended, 1877.] Dismissal of complaint for neglect to serve summons. Where, in an action against two or more defendants, the plaintiff unreasonably neglects to serve the summons upon one or more

of them, without whose presence a complete determination of the controversy cannot be had, the court may, in its discretion, upon the application of a defendant, who has appeared in the action, dismiss the complaint as against him, and render judgment accordingly.

Substitute for Co. Proc., part of 274. Kimberly v. Parker, 34 How. 275; Unger v. Forty-second St. R. R. Co., 6 Rob. 545; Waffle v. Vander heyden, 8 Paige, 45; Georgia Lumber Co. v. Bissell, 9 id. 226; Tracy v. Reynolds, 7 How. 327; Travis v. Tobias, id. 90; Higgins v. Bock well, Duer, 650; Winchell v. Martin, 14 Abb. N. 8. 47.

§ 822. [Amended, 1879.] Dismissal of complaint for neglect to proceed.- Where the plaintiff unreasonably neglects to proceed in the action against the defendant, or one or more defendants against whom a separate judgment may be taken, the court may in its discretion, upon the application of the defendant or defendants, or any of them, against whom he so neglects to proceed, dismiss the complaint as against the moving party or parties, and render judgment accordingly.

Id. Colvin v. Bragden, 5 How. 124; Baker v. Curtiss, 7 id. 478; Luce v. Trempert, 9 id. 212.

§ 823. Feigned issues abolished, and order for trial substituted.-Feigned issues have been abolished.(1) In a case where neither party can, as of right, require a trial by jury of an issue of fact arising upon the pleadings, or where a question of fact, not in issue upon the pleadings, is to be tried, an order for the trial thereof by a jury may be made, stating, distinctly and plainly, the questions of fact to be tried. Such an order is the only authority necessary for the trial.(2)

Co. Proc., 72. (1) Snell v. Loucks, 12 Barb. 385. (2) Vermilyea v. Palmer, 52 N. Y. 471; Brinkley v. Brinkley, 56 id. 192.

§ 824. Summons and pleadings, to be filed within ten days after service. The summons, and each plead. ing in an action, must be filed with the clerk, by the party in whose behalf it is served, within ten days after the service thereof. If the party fails so to file it, the adverse party, on proof of the failure, is entitled, without notice, to an order from a judge, that it be filed within a time specified in the order, or be deemed abandoned.

Co. Proc., 416. Short v. May, 2 Sandf. 639; Douoy v. Hoyt, 1 Code R. N. 8. 286: Leitch v. Wells, 48 N. Y. 585.

$825. Papers in special proceedings, where to be

filed. A return or other paper in a special proceeding, where no other disposition thereof is prescribed by law, must be filed, and an order therein must be entered, with the clerk of the county in which the special proceeding is taken, if it is before a county officer, or a judge of a court established in a city; if before a justice of the supreme court, with the clerk of a county designated by the justice; or, if no designation is made by him, of a county where one of the parties resides.

L 1847, ch. 470, 20, am'd.

§ 826. [Amended, 1877.] Publication, where no newspaper, etc., in county.- Where a notice, or other proceeding, is required by law to be published in a newspaper published in a county, and no newspaper is published therein, or to be published oftener than any newspaper is regularly published therein, the publication may be made in a newspaper of an adjoining county, except where special provision is otherwise made by

law.

2 R. S. 552, 10; Dolbeer v. Casey, 19 Barb. 155.

tain cases.

$ 827. [Amended, 1877.] Special references in cerWhere a provision of this act authorizes the court to approve an undertaking, or the sureties thereto; or to make an examination or inquiry; or to appoint an appraiser, receiver, or trustee; it may direct a reference to one or more persons designated in the order, either to make the approval, examination, inquiry or appointment, or to report the facts to the court, for its action thereupon. And where, according to the practice of the court of chancery, on the 31st day of December, 1846, a matter was referable to the clerk, or to a master in chancery, a court having authority to act thereupon, may direct a reference to one or more perSons, designated in the order, with the powers which were possessed by the clerk, or the master in chancery, except where it is otherwise specially prescribed by law.

Modelled upon first sentence of L. 1847, ch. 280, 77.