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§ 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.
Other provisional remedies; general and miscellaneous provisions.
§ 713. [Am'd 1895, amendment to take effect January 1, 1896.] 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 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 possession 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.
§ 714. [Am'd 1877, 1879.] Notice of an application, for the 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. 536.
§ 715. [Am' 1877, 1896.] A receiver, appointed in n action or se ial 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 execution of any such bond by any fidelity or surety company authorized by the laws of this state to transact business, shall be equivalent to the execution of said bond by two sureties. 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 the foregoing provisions of this section do 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. A receiver who, having executed and filed a bond as provided for in this section, before presenting his accounts as receiver, nust give notice to the surety or sureties on his official bond, of his intention to present his accounts, not less than eight days before the day set for the hearing on said accounting. The same notice must be given to such surety or sureties where the accounting is ordered on the petition of a person or persons other than the receiver, and in no case shall the receiver's accounts be passed, settled or allowed, unless the said notice provided for in this section shall have first been given to the surety or sureties on the official bond of such receiver.
§ 716. [Am'd 1895, amendment to take effect January 1, 1896.] A receiver, appointed by or pursuant to an order or a judgment, in an action in the supreme court or a county court, or in a special proceeding or 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.
DEPOSIT, DELIVERY, OR CONVEYANCE OF PROPERTY.
717. Court may order a deposit
or delivery of property in
$ 718. 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 its discretion, grant an order, upon notice, that it be paid into, or deposited in court, or delivered to that party, with or without security, subject to the further direction of
§ 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 conformity with the direction of the court.
GENERAL AND MISCELLANEOUS PROVISIONS.
8719. Arrest, injunction, and attachment; when not to be granted together.
§ 720. Counterclaim; right to provisional remedy in case 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 defendant, and it sastifactorily appears that, under the particular eircumstances 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, injunction order, or warrant of attachment, the court or judge must finally decide the same, within twenty days after it is submitted for de
$720. [Am'd 1879.] Where the defendant interposes a counterclaim, and thereupon demands an affirmative judg ment against the plaintiff, his right to a provisional remedy is
the same as in an action brought by him against the plaintiff for the cause of action stated in the counterclaim, and demanding the same judgment. And for the purpose of applying to such a case the provisions of this act, the defendant is deemed the plaintiff, the plaintiff is deemed the defendant, and the counterclaim so set forth in the answer is deemed the complaint.
MISCELLANEOUS INTERLOCUTORY PROCEEDINGS
TITLE I.-MISTAKES, OMISSIONS, DEFECTS, AND IRREGULAR
TITLE II.-TENDER, AND OTHER OFFERS AND REQUESTS TO
TITLE III-PAYMENT OF MONEY INTO COURT, AND CARE AND
TITLE IV.-PROCEEDINGS UPON THE DEATH OR DISABILITY OF
TITLE V.-MOTIONS AND ORDERS GENEBALLY.
TITLE VI.-MISCELLANEOUS PRACTICE REGULATIONS.
24 Hun, 645;
135 N.Y. 522.
141 Id. 76.
Mistakes, omissions, defects, and irregularities.
§ 721. Defects cured by verdict,
724. Relief against omissions,
etc., amendments to con-
725. Returns by officers, etc.
§ 726. Papers lost or withheld; how supplied.
Order of court; when necessary to amend. 728. Disregarding defects in afAdavits.
Certain bonds, etc., when sufficient.
Amending defects in bonds, 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:
24 Misc. 285.
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 variance between the summons and complaint. 5. For 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.
The Union Surety and Guaranty Co.
The Union Surety and Guaranty Co.
*So in original.