and provision is not specially made by law for the prosecution thereof; the party or other person, so interested, may maintain an action in his own name, for a breach of the condition of the bond, or of the terms of the undertaking; upon procuring an order, granting him leave so to do. The order may be made by the court, in which the action is or was pending; the city court of the city of New-York, or a county court, if the bond or undertaking was given in a special proceeding, pending before a judge of that court; or, in any other case, by the supreme court. Notice of the application therefor must be given, as directed by the court or judge, to the persons interested in the disposition of the proceeds.

In effect Jan. 1, 1896; L. 1895, ch. 946.

§ 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 Porter v. Van Vranken, 86 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.. 428, am'd. Rice v. Whitlock, 15 Abb. 419.

ARTICLE SIXTH.

OTHER MATTERS.

Bxc. 817. Consolidating causes in same court.

818. Id.; in different courts.

819. Id.; by plaintiff.

820. Interpleader by order in certain cases.

821. Dismissal of complaint for neglect to serve summons.
822. Id.; for neglect to proceed.

823. Feigned issues abolished, and order for trial substituted.

824. Summons and pleadings to be filed within ten days after
service.

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. 898); Briggs v. Gaunt, 4 Duer, 664; 2 Abb. 77; Pierce v. Lyon, 3 Hill, 450; Wilkinson v. Johnson, 4 id. 46; Dunning v. Bank of Auburn, 19 Wend. 23; Brewster v. Stewart, 3 id. 442; Cooper 1. Weed, 2 How. 40; Clark v. Metropolitan Bank, 5 Sandf. 665; Dunn v. Mason, 7 Hill, 154; Crane v. Koehler, 6 Abb. 828; People v. McDonald, 1 Cow. 189; Potter v. Pattengill, 8 Abb. 189; Percy v. Seward, 6 1d. 126; Bank of U. S. v. Strong, 9 Wend. 451; Blake v. Mich. South. R. R. Co., 17 How. 28.

§ 818. Id.; in different courts.- Where one of the actions is pending in the supreme court, and another is pending 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 R. S. 388, § 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 proceedings, consolidate them into one action.

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

§ 820. [Amended, 1894.] Interpleader by order in certain cases. A defendant against whom an action to recover upon a contract, or an action of ejectment, or an action to recover a chattel, is pending, may, at any time 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; or upon it appearing that the defendant disputes, in whole or in part, the liability as asserted against him by different claimants, or that he has some interest in the subject-matter of the controversy which he desires to assert, his application may be for an order joining the other claimant or claimants as co-defendants with him in the action. The court may, in its discretion, make such order, upon such terms as to costs and payments into court of the amount of the debt, or part thereof, or delivery of the possession of the property, or its value or part thereof, as may be just, and thereupon the entire controversy may be determined in the action.

In effect, as amended, April 24, 1894; see Laws 1894, ch. 246.

§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 d. 226; Tracy v. Reynolds, 7 How. 327: Travis v. Tobias, id. 90; Higgins v. Bockwell, Duer, 650; Winchell v. Martin, 14 Abb. N. S. 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 . Trempert, 9 id. 812.

$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) Vermilyes v. Paimer, 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 pleading 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, with out notice, to an order from a judge, that it be filed within a time specified in the order, or be deemed alan. doned.

Co. Proc., 416. Short v. May, 2 Sandf. 639; Donoy v. Hoyt, 1 Cod B. 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 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. 9. 552, 10; Dolbeer v. Casey, 19 Barb. 155.

§ 827. [Amended, 1877.] Special references in certain cases. Where 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 Arst sentence of L. 1847, ch. 280, § 77.

CHAPTER IX.

EVIDENCE.

TITLE

1.-GENERAL

REGULATIONS RESPECTING

EVIDENCE, AND THE COMPETENCY AND
MODE OF EXAMINATION OF A WITNESS.

TITLE IV.-DOCUMENTARY EVIDENCE.

TITLE V. MISCELLANEOUS PROVISIONS.

TITLE I.

General regulations respecting evidence, and the compe tency and mode of examination of a witness. ARTICLE 1. Competency of a witness; evidence in particular cases. 2. Administration of an oath or affirmation.

ARTICLE FIRST.

COMPETENCY OF A WITNESS; EVIDENCE IN PARTICULAR

CASES.

Co. 828. No witness to be excluded by reason of interest, sts. 829. When party, etc., cannot be examined.

830. Id.; hasband or wite of party, etc.

831. When husband and wife not competent witnesses. Id.; when competent.

832. Conviction for crime, not to exclude witness; how conviction proved.

833. Clergymen, etc., not to disclose confessions.

834. Physicians not to disclose professional information.

835. Attorneys and counsellors not to disclose communications.

836. Application of the last three sections.

837. When witness not excused from testifying.

838. Evidence of party may be rebutted.

139. Admission by member of corporation.

840. Beal, presumptive evidence of consideration.
841. Presumption of death in certain cases.

§ 828. No witness to be excluded by reason of interest, etc. Except as otherwise specially prescribed in this title, a person shall not be excluded or excused