418. 100 N. Y. 219. $814. [Am'd 1895, amendment to take effect January 1, 4 Civ. Pro 1896] Where a bond or undertaking has been given, as prescribed by law, in the course of an action or a special proceeding, to the people or to a public officer, for the benefit 39N.Y.Supp. of a party or other person interested and provision is not 92. sp cially 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. §815. 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. $816. A bond or undertaking, required to be given by this a t, must be filed by 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. § 817. When 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. 20 Misc. 508; 21 Id. 516. 1 12 Abb. N 62. § 818. When one of the actions is pending in the C. 58; 22 Id 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. 27 Hun, 236. 89 N. Y. 117; 90 N. Y. 234. 89 Hun, 382. 24 Misc. 4. 629. 27 Id. 452. § 819. 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. § 820, [Am'd 1877, 1894.] 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, 25 App. Div. 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 subjectmatter of the controversy which he desires to assert, bis 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. § 821. [Am'd 1877.] 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. 589. 28 Hun, 74. Bul. 42. 4 Month. L. § 822 [Am'd 1879.] Where the plaintiff unreasonably 5 Week. Dig 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. 76 Hun, 584. $823. Feigned issues have been abolished. In a case, where neither party can, as of right, require a trial by jury of 52 N. Y. 587. 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. $824. 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, without notice, so an order from a judge, that it be filed within a time specified in the order, or be deemed abandoned. § 825. 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. § 826. [Am'd 1877.] Where a notice, or other proceed ing, 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. § 827. [Am'd 1877.] 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 thirty-first day of December, eighteen hundred and fortysix, 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. 5 N. Y. Sup er. Ct. (J. & S.) 69. 21 App. Div. 361. 29 Abb. N.C. 4350; 136 N Y. 509; 140 12 Misc. 40. TITLE II-COMPELLING THE ATTENDANCE AND TESTIMONY OF General regulations respecting evidence, and the competency 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. 828. No witness to be excluded 830. Party or witness since 831. When husband and wife not competent witnesses. to exclude witness; how 2835. Attorneys and counsellora not to disclose communications. 836. Application of the last three sections. competency of witnesses in certain cases. 837. When witness not excused from testifying. 838. Evidence of party may be rebutted. 839. Admission by member of 840. Seal,presumptive evidence $ 828. Except as otherwise specially prescribed in this title, a person shall not be excluded or excused from being a witness, by reason of his or her interest in the event of an action or special proceeding; or because he or she is a party thereto; or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed, or defended. $829. Am'd 1877, 1881.] Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, administrator or survivor of a deceased person, or the committe of a lunatic, or a person deriving his title or interest from, through, or under a deceased person or lunatic, by assignment or otherwise concerning a personal transaction or communication between the witness and the deceased person or lunatic, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transact fon or communication. A person shall not be deemed inter ested for the purposes of this section by reason of being a stockholder or officer of any banking corporation which is a party to the action or proceeding, or interested in the event there of. 92 N. Y. 239; 34 Hun 97; 95 N Y. 48; 3 Dem. 37; Id. 324; 35 Hun, 199; 37 Id. 526; Id. 656 41 Id. 203; 104 N. Y. 506; 105 Id. 332; 1 Conn. 203; 110 N. Y. 513; 3 N. Y. Supp. 518; 112 N. Y. 426; Id. 493; 113 Id. 386; 114 Id. 287; 117 Id. 91; Id. 500; Id. 606; 118 Id. 46; 24 N. Y. State Rep. 322; Íd, 332; Íd. 685; 25 Id. 309; 26 Id. 24; ld. 594; Id. 840; 27 Id. 900; 12 N. Y. 536; 121 Id. 575; 29 N. Y; State Kep. 882; 33 Id. 775; 34 Id. 448; 124 N. Y. 487; 505; 126 Id. 552; 29 Abb. N. C. 444; 131 N. Y. 624; 132 N. Y. 465; 137 N. Y. 67. 138 Id. 6.5; 141 11. 225, 389; 6 App. Div. 535; 15 Misc. 287; 90 Hun, 127; Id. 455; 91 Id. 165; 92 Id. 272, 381; 149 N. Y. 71; 153 Id. 124, 294, 343; 19 Misc. 373; 21 Misc. 419; 12 App. Div. 294;13 Id. 65, 621; 15 Id. 214; 16 Id. 540; 18 Id. 488; 19 Id. 352. 22 Misc. 329; 22 App. Div. 621; 25 Id. 610; 51 N. Y. Supp. 49; 153 N. Y. 124; Id. 294; Id. 343. Id, 549. $830. Party or witness since deceased. [Am'd 1878, 26 N.Y.State 1879, 1893, 1896, 1899, amendment to take effect September 1, Rep. 863; 1 1899.]-Where a party or witness has died or become insane since the trial of an action, or the hearing upon the merits of a special proceeding, the testimony of the decedent or insane person, or of any person who is rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial or hearing, may be given or read in evidence at a new trial or hearing, or upon any subsequent trial or hearing of the same subject matter in an action or special proceeding between the same parties who were parties to such former trial or hearing or their legal representatives, by either party to such new trial or hearing, or to such subsequent action or special proceeding, subject to any other legal objection to the competency of the witness, or to any other legal objection to his testimony or any question put to him The original stenographic notes of such testimony taken by a stenographer, who has since died or become incompetent, may be so read in evidence by any person whose competency to read the same accurately is established to the satisfaction of the court, or officer presiding at the trial of such action or special proceeding. |