4 Civ. Pro. 148; Id. 154. 90 N.Y. 521; not been discharged, as to that property, he must, if practicable, regain possession thereof; and, for that purpose, he has all the authority which he had, to seize the same under the warrant. A person who wilfully conceals or withholds such property from him, is liable to double damages, at the suit of the party aggrieved. 4. Until the judgment is paid, he may collect the debts and other things in action attached, and prosecute any undertaking, which he has taken in the course of the proceedings, and apply the proceeds thereof to the payment of the judgment. 5. At any time after levying the attachment, the court, upon the petition of the plaintiff, accompanied with an affidavit, specifying fully all the proceedings of the sheriff, since the levy under the warrant, the property attached, and the disposition thereof; and the affidavit of the sheriff, showing that he has used diligence, in endeavoring to collect the debts and other things in action attached, and that a portion thereof remains uncollected; may direct the sheriff to sell the remaining portion, upon such terms, and in such manner, as it thinks proper. Notice of the application must be given to the defendant's attorney, if the defendant appeared in the action. If the summons was not personally served on the defendant, and he did not appear, the court may make such order as to the service of notice, as it thinks proper; or may grant the application without notice. § 709. [Am'd 1877.] Where a warrant of attachment is vacated, or annulled, or an attachment is discharged, upon the application of the defendant, the sheriff must, except in a case where it is otherwise specially prescribed by law, deliver over to the defendant, or to the person entitled thereto, upon 36 Hun, 407. reasonable demand, and upon payment of all costs, charges, 92 Id. 651. 1 How. Pr N. S. 21. and expenses, legally chargeable by the sheriff, all the attached personal property remaining in his hands, or that portion thereof, as to which the attachment is discharged; or the proceeds thereof, if it has been sold by him. § 710. Where the sheriff is required, by this title, to deliver attached property, or the proceeds thereof, to the defendant, he must also deliver to him, unless otherwise specially directed by the court or judge, all books of account, vouchers, evidences of debt, muniments of title, or other papers, relating to the property, either real or personal, or to its proceeds; together with all undertakings, relating thereto, which he has taken in the course of the proceedings, and which have not been fully satisfied; except an undertaking, given by the defendant, upon the discharge of property. He must also deliver a written assignment duly acknowledged, of each undertaking, so delivered, and of each other instrument, to which the defendant is thus entitled, an assignment of which is necessary to perfect or protect the defendant's title thereto. The defendant must also, but upon his own application only, be substituted in the place of the sheriff, or the sheriff and the plaintiff jointly, in an action brought as prescribed in this title; but the court or judge may impose, as a condition of granting the order of substitution, such terms as justice requires, with respect to idemnity and payment of expenses. The defendant's rights, with respect to property attached and not disposed of, and an undertaking, or other instrument, to which he is thus entitled, are the same as those of the sheriff while the warrant was still in force, except where his rights are specially defined or regulated by law. § 711. [Am'd 1877.] At any time after the warrant of attachment has been vacated or annulled, or the attachment has been discharged as to real property attached, the court may, in its discretion, upon the application of any person aggrieved, and upon such notice as it deems just, direct, that any notice, filed for the purpose of attaching the property, be cancelled of record, by the clerk of the county where it is filed and recorded. The cancellation must be made by a note, to that effect, on the margin of the record, referring to the order; and, unless the order is entered in the same clerk's office, a certified copy thereof must, at the same time, be filed therein. § 712. Where a warrant of attachment has been vacated or annulled, the sheriff must forthwith file, in the clerk's office, the warrant, with a return of his proceedings thereon. Upon the application of either party, and proof of the sheriff's neglect, the court may direct him so to do, forthwith, or within a specified time. TITLE IV. Other provisional remedies; general and miscellaneous provisions. § 713. In addition to the cases, where the appointment of a receiver is specially provided for by law, a receiver of property, which is the subject of an action, in the supreme court, a superior city court, or a county court, may be appointed by the court, in either of the following cases: 1. Before final judgment, on the application of a party who establishes an apparent right to, or interest in, the property, where it is in the posssesion of an adverse party, and there is danger that it will be removed beyond the jurisdiction of the court, or lost, materially injured, or destroyed. 2. By or after the final judgment, to carry the judgment into effect, or to dispose of the property, according to its directions. 3. After final judgment, to preserve the property, during the pendency of an appeal. The word, "property," as used in this section, includes the rents, profits, or other income, and the increase, of real or personal property. 23 Hun, 410; 94 N. Y. 342. 29 Id. 633. 22 Abb. N. C. 319. 5 N.Y.Supp. 380. 119 N. Y.408. C. 442. § 714. [Am'd 1877, 1879.] Notice of an application, for the 2 Abb. N. appointment of a receiver, in an action, before judgment therein, must be given to the adverse party, unless he has failed to appear in the action, and the time limited for his appearance has expired. But where an order has been made, as prescribed in section four hundred and thirty-eight of this act, the court may, in its discretion, appoint a temporary receiver, to receive and preserve the property, without notice, or upon a notice given by publication or otherwise, as it thinks proper. 76 N. Y. 596. § 715. [Am'd 1877.] A receiver, appointed in an action or special proceeding, must, before entering upon his duties, execute and file with the proper clerk, a bond to the people, with at least two sufficient sureties, in a penalty fixed, by the court, judge or referee, making the appointment, conditioned for the faithful discharge of his duties as receiver. And the court; or, where the order was made out of court, the judge making the order, by or pursuant to which the receiver was appointed; or his successor in office, may, at any time, remove the receiver, or direct him to give a new bond, with new sureties, with the like condition. But this section does not apply to a case, where special provision is made by law, for the security to be given by a receiver, or for increasing the same, or for removing a receiver. § 716. A receiver, appointed by or pursuant to an order or a judgment, in an action in the supreme court, a superior city court, or a county court, or in a special proceeding for the voluntary dissolution of a corporation, may take and hold real property, upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respecting the disposition thereof. ARTICLE SECOND. DEPOSIT, DELIVERY, OR CONVEYANCE OF PROPERTY. 2717. Court may order a deposit or delivery of property in 2718. When sheriff may take and convey, etc., property. § 717. [Am'd 1877.] Where it is admitted, by the pleading or examination of a party, that he has, in his possession or under his control, money, or other personal property capable of delivery, which, being the subject of the action or special proceeding, is held by him as trustee for another party, or which belongs or is due to another party, the court may, in it discretion, grant an order, upon notice, that it be paid into, or deposited in court, or delivered to that party, with or without secutity, subject to the further direction of the court. 718. Where the court has directed a deposit or delivery, as prescribed in the last section; or where a judgment directs a party to make a deposit or delivery, or to convey real property; if the direction is disobeyed, the court, besides punishing the disobedience as a contempt, may, by order, require the sheriff to take, and deposit or deliver the money or other personal property, or to convey the real property, in confor mity with the direction of the court. ARTICLE THIRD. GENERAL AND MISCELLANEOUS PROVISIONS. 2719. Arrest, injunction, and at- 8 720. Counterclaim; right to pro- of. § 719. [Am'd 1879.] Where an application for an order of arrest, an injunction, and a warrant of attachment, or two of them, is made, in the same action, against the same defend ant, and it satisfactorily appears that, under the particular circumstances of the case, two or all of them are not necessary for the plaintiff's security, the court or judge may, in its or his discretion, require the plaintiff to elect between them. Where an application is made, to obtain, vacate, modify, or set aside an order of arrest. njuneten me pur rf act ment, the court or judge must in - att skulle. VillL twenty days after its sucmimet Sur ded $720. [4m NR TIE e defentar interposes & counterclaim, and thereupon females a Lffmute jung ment against the peanmmf us men, a je vesti "ANIELT IS the same as in an action traum Lis. Die panif for the cause of action Hazet n the PONIETAMMLETI, ATOS DE manding the same joignen Lud forthe purpose JĆ BOLTing to such a case the persons é 11S ULTI deemed the plans. The platfs besmet the defenda and the counterclaim so sen fiet the Laser is deemed the complaint. CHAPTER TRE MISCELLANEOUS INTERDOUSTURY PROCEED IN G8 TITLE L-MISTAKES, OSSICOS, DEPPOTS, AND IRREGULARI- TITLE IL-TENDER AND OTHER OFFERS AND BENESTS TO TITLE IIL-PAYMENT OF WINET INTO COURT, AND CARE AND TITLE IV.-PROCEEDINGS UPON THE DEATH OR DISABILITY OF TITLE V.-MOTIONS AND ORDERS GENERALLY. TITLE VI-MISCELLANEOUS PRACTICE REGULATIONS. TITLE L Mistakes, omissions, defects, and irregularities. 8721. Defects eared by verdict, etc., and by judgment. 722. Such defects to be supplied. 723. Amendments by the court: disregarding immaterial errors, etc. 724. Relief against omissions, etc.; amendments to conform proceedings. 1126 Papers lost or withheld; 727. Order of court; when 729. Certain bonds; etc., when 730. Amending defects in 725. Returns by officers, etc. § 721. [Am'd 1879.] In a court of record, where a verdict, report, or decision has been rendered, the judgment shall not be stayed, nor shall any judgment of a court of record be impaired or affected by reason of either of the following imperfections, omissions, defects, matters, or things, in the process, pleadings, or other proceedings: 1. For want of a summons, or other writ. 2. For any fault or defect in process; or for misconceiving a process, or awarding it to a wrong officer. 3. For an imperfect or insufficient return of a sheriff or other officer; or because an officer has not subscribed a return, actually made by him. 4. For a varianee between the summons and complaint. 5. For a mispleading, insufficient peading * or jeofail. 6. For want of a warrant of attorney by either party. 7. For the appearance by attorney of an infant party, if the verdict, report, or decision, or the judgment is in his favor. * So in original. 24 Hun, 645; 26ld 429. 18 Week. Dig. 310. 120 N. Y. 483. 135 N. Y. 522. 134 N. Y. 85. 76 N. Y. 596. 8. For omitting to allege any matter, without proof of which the verdict, report, or decision ought not to have been rendered. 9. For a mistake in the name of a party or other person; or in a sum of money; or in the description of property; or in reciting or stating a day, month, or year; where the correct name, sum, description, or date has been once rightly stated, in any of the pleadings or other proceedings. 10. For a mistake in the name of a juror or officer. 11. For an informality in entering judgment, or making up the judgment-roll. 12. For an omission on the part of a referee to be sworn; or for any other default or negligence of the clerk, or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party has not been prejudiced. 722. Each of the omissions, imperfections, defects, and 135 N.Y. 522. variances, specified in the last section, and any other of like nature, not being against the right and justice of the matter, and not altering the issue between the parties, or the trial, must, when necessary, be supplied, and the proceeding amended, by the court wherein the judgment is rendered, or by an appellate court. 89 N.Y. 22. 24 N.Y.State Кер. 953. 24 Hun, 645. 88 N.Y. 500; Id. 537. 6 Abb. N. 62 How. Pr. 90 N.Y. 546. 120 N.Y. 433 § 723. [Am'd 1877.] The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceeding to the facts proved. And, in every stage of the action, the court must disregard an error or defect, in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party. 50 N. Y. Super. (Ct. J. & S.) 301; 34 Hun, 431; 38 Id. 528; 107 N. Y. 645; 4 N.Y. Supp. 804; 121 N. Y. 546: 122 Id. 461. 135 N.Y. 522. 724. The court may likewise, in its discretion, and upon such terms as justice requires, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; and may supply an omission in any proceeding. Where a proceeding, taken by a party, fails to conform to a provision of this act, the court may, in like manner, and upon like terms, permit an amendment thereof, to conform it to the provision. 17 Week. Dig. 354; 18 Id. 510; 14 Abb. N. C. 96; Id. 510; 35 Hun, 162; 3 N. Y. Supp. 120; 6 Id. 58!; 28 N. Y. State Rep. 474; 112 N. Y. 325; 119 Id. 414. $ 725. A court, to which a return is made by a sheriff or other officer, or by a subordinate court or other tribunal, may, in its discretion, direct the return to be amended, in matter of form., either before or after judgment. 726. Where an original pleading or paper is lost, or withheld by any person, the court may authorize a copy to be filed and used, instead of the original. 727. A process, pleading, or record, shall not be altered, by the clerk or any other officer of the court, or by any other |