1. The mortgagor, his heir, devisee, executor or administrator. 2. Each person claiming under any of them, by virtue of a title or of a lien by judgment or decree, subsequent to the mortgage, upon whom the notice of sale was served, as prescribed in this title.

3. Each person so claiming, whose assignment, mortgage, or other conveyance was not duly recorded in the proper book for recording the same in the county, or whose judgment or decree was not duly docketed in the county clerk's office, at the time of the delivery of a copy of the notice of said sale to the clerk of the county; and the executor, administrator, or assignee of such a person.

4. Every other person, claiming under a statutory lien or incumbrance, created subsequent to the mortgage, attaching to the title or interest of any person, designated in either of the foregoing subdivisions of this section.

5. The wife or widow of the mortgagor, or of a subsequent grantee, upon whom notice of the sale was served as prescribed in this title, where the lien of the mortgage was superior to her contingent or vested right of dower, or her estate in dower.

2 R. S. 545, 8, am'd; L. 1842, ch. 277, and L. 1844, ch. 346, § 4 (4 Edm. 535, 668).

§ 2396. Affidavit of sale, and of posting, serving, etc., notices.

An affidavit of the sale, stating the time when, and the place where, the sale was made; the sum bid for each distinct parcel, separately sold; and the name of the purchaser of each distinct parcel, may be made by the person, who officiated as auctioneer upon the sale. An affidavit of the publication of the notice of sale, and of the notice or notices of postponement, if any, may be made by the publisher or printer of the newspaper in which they were published, or by his foreman or principal clerk. An affidavit of the affixing of a copy of the notice, at or near the entrance of the proper court-house, may be made by the person who so affixed it, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the affixing of a copy of the notice in the book, kept by the county clerk, may be made by the county clerk, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the service of a copy of the notice upon the mortgagor, er upon any other person, upon whom the notice must or may be served, may be made by the person who made the service. Where two or more distinct parcels are sold to different purchasers, separate affidavits may be made with respect to each parcel, or one set of affidavits may be made for all the parcels.

Id., § 9, and am'd L. 1844, ch. 346; L. 1857, ch. 308, consolidated and am'd.

§ 2397. [Am'd, 1882.] When one affidavit suflees printed notice to be annexed.

The matters required to be contained in any or all of the atdavits, specified in the last section, may be contained in one affidavit, where the same person deposes with respect to them. A printed copy of the notice of sale must be annexed to each affidavit; and a printed copy of each notice or postponement must be annexed to the affidavit of publication, and to the affidavit of sale. But one copy of the notice suffices for two or more affi

davits where they all refer to it and are annexed to each other and filed and recorded together.

2 R. S. 545, part of § 9, am 2.

| 2398. [Am'd, 1904.] Affidavits may be filed and recorded. The affidavits specified in the last tw, molts may be tied in the office for recording deeds and races, in the county where the sale took place. They Lost be rewinded at lemah ty the officer with whom they are fed in the proper bock for re cording deeds. The original affarits, so fled the recond thereof. and a certified copy of the record, are presumptive evidence of the matters of fact therein stated, with respect to any property sold, which is situated in that county. Where the property sold is situated in two or more conaties, a copy of the afflavits, certified by the officer with whom the originals are fled, may be fied and recorded in each other county, wherein any of the property is situated. Thereupon the copy and the record thereof have the like effect, with respect to the property in that county, as if the originals were duly filed and recorded therein.

Id., § 11, am'd, and part of 12; L 1904, ch. 679. In effect Sept. 1, 1904. {2399. Note upon record of mortgage.

A clerk or a register, who records any affidavits, or a certified copy thereof, filed with him, must make a note, upon the margin of the record of the mortgage, in his office, referring to the book and page, or the copy thereof, where the affidavits are recorded. Id., § 13.

§ 2400. Deed not necessary. When affidavits not necesmary; but purchaser may require them.

The purchaser of the mortgaged premises, upon a sale conducted as prescribed in this title, obtains title thereto, against all persons bound by the sale, without the execution of a conveyance. Except where he is the person authorized to execute the power of sale, such a purchaser also obtains title, in like manner, upon payment of the purchase-money, and compliance with the other terms of sale, if any, without the filing and recording of the affidavits, as prescribed in the last section but one. But he is not bound to pay the purchase-money, until the aflidavits, specified in that section, with respect to the property purchased by him, are filed, or delivered or tendered to him for filing.

Id., § 14, am'd; L. 1838, ch. 266, § 8. See § 2396, ante.

2401. Costs allowed.

The following costs, in addition to the expenses specified in the next section, are allowed, in proceedings taken as prescribed in

this title:

1. For drawing a notice of sale, a notice of the postponement of a sale, or an affidavit, made as prescribed in this title, for each folio, twenty-five cents; for making each necessary copy thereof, for each folio thirteen cents.

2. For serving each copy of the notice of sale, required or ** pressly permitted to be served by this title, and for aflixing ech copy thereof, required to be affixed upon the court-house, am pre scribed in this title, one dollar.

3. For superintending the sale, and attending to the execution of the necessary papers, ten dollars.

2 R. S. 652, § 4, subd. 1 and 2 and part of subd. 3 (2 Edm. 672), and L 1844, ch. 346, § 3 (4 Edm. 668).

§ 2402. Expenses allowed.

The sums actually paid for the following services, not exceeding the fees allowed by law for those services, are allowed in proceedings, taken as prescribed in this title:

1. For publishing the notice of sale, and the notice or notices of postponement, if any, for a period not exceeding twenty-four weeks.

2. For the services specified in section 2390 of this act.

3. For recording the affidavits; and also, where the property sold is situated in two or more counties, for making and recording the necessary certified copies thereof.

4. For necessary postage and searches.

Id., remainder of § 4.

§ 2403. Taxation thereof.

The costs and expenses must be taxed, upon notice, by the clerk of the county where the sale took place, upon the request and at the expense of any person, interested in the payment thereof. Each provision of this act, relating to the taxation of costs in the supreme court, and the review thereof, applies to such a taxation.

§ 2404. Surplus money to be paid into supreme court. An attorney or other person who receives any money, arising upon a sale, made as prescribed in this title, must, within ten days after he receives it, pay into the supreme court the surplus, exceeding the sum due and to become due upon the mortgage. and the costs and expenses of the foreclosure, in like manner and with like effect, as if the proceedings to foreclose the mortgage were taken in an action, brought in the supreme court, and triable in the county where the sale took place.

L. 1868, ch. 804, §§ 1, 2 and 4 (7 Edm. 353); L. 1870, ch. 706, § 1 (7 Edm. 770). See $$ 743, 745, ante. See also Rule 64.

§ 2405. Claimant of surplus money to file petition.

A person, who had, at the time of the sale, an interest in or lien upon the property sold, or a part thereof, may, at any time before an order is made, as prescribed in the next section but one, file in the office of the clerk of the county, where the sale took place, a petition stating the nature and extent of his claim, and praying for an order, directing the payment to him of the surplus money, or a part thereof.

Id., part of § 3, am'd.

§ 2406. Application for surplus money.

A person filing a petition, as prescribed in the last section, may, after the expiration of twenty days from the day of sale, apply to the supreme court, at a term held within the judicial district. embracing the county where his petition is filed, for an order, pursuant to the prayer of his petition. Notice of the application must be served, in the manner prescribed in this act for the service of a paper upon an attorney in an action, upon each per

son, who has filed a like petition, at least eight days before the application; and also upon each person, upon whom a notice of sale was served, as shown in the affidavit of sale, or upon his executor or administrator. But, if it is shown to the court, by affidavit, that service upon any person, required to be served, cannot be so made with due diligence, notice may be given to him in any manner which the court directs.

L. 1868, ch. 804, part of § 3, am'd.

2407. Order for distribution.

Upon the presentation of the petition, with due proof of notice for application, the court must make an order referring it to a suitable person to ascertain and report the amount due to the petitioner, and to each other person, which is a lien upon the surplus money; and the priorities of the several liens thereupon. Upon the coming in and confirmation of the referee's report, the court must make such an order, for the distribution of the surplus money, as justice requires.

Id., remainder of § 3, am'd.

§ 2408. Limitation of last four sections.

The last four sections do not apply to surplus money, arising upon the sale of real property, of which a decedent died seized, where letters testamentary or letters of administration, upon the decedent's estate, were, within four years before the sale, issued from a surrogate's court within the State, having jurisdiction to issue them.

L. 1867, ch. 658 (7 Edm. 142); L. 1870, ch. 170 (7 Edm. 664), and L. 1871, ch. 834 (9 Edm. 210). See, also, § 2798, post.

{2409. [Am'd, 1882.] Application of this title to mortkages of the State.

This title does not affect any provision of law, inconsistent therewith, especially relating to the foreclosure of mortgages to the people of the State, or to the commissioners for loaning certain moneys of the United States.

Section 15 of part 3, ch. 8, tit. 15, R. S., am'd.

655

TITLE X.*

Proceedings to change the name of an individual or corporation.

2415. When change to take effect.

2416. Substitution of new name in pending action or proceeding.
2417. Reports by clerks to state officers.

2418. [Repealed.]

§ 2410. [Am'd, 1895.] Petition by individual,

A petition for leave to assume another name may be made by a resident of the state to the county court of the county in which he resides, or, if he resides in the city of New York, either to the supreme court, or to the city court of New York. The petition of an infant shall be made by his general guardian, or by the guardian of his person, or by his next friend.

L. 1895, ch. 946.

§ 2411. [Am'd, 1901.] Petition by corporation.

A petition to assume another corporate name may be made by a domestic corporation, whether incorporated by a general or special law, to the supreme court at a special term thereof, held in the judicial district in which its principal business office shall be situated, or, if it be other than a stock corporation, at a special term held in the judicial district in which its certificate of incorporation is filed or recorded, or in which its principal property is situated, or in which its principal operations are or theretofore have been conducted. If it be a banking, insurance or railroad corporation, the petition must be authorized by a resolution of the directors of the corporation, and approved if a banking corporation, by the superintendent of banks; if an insurance corporation other than a town or county co-operative insurance corporation, by the superintendent of insurance, and if a railroad corporation, by the board of railroad commissioners. The petition to change the name of any other corporation must have annexed thereto a certificate of the secretary of state, that the name which such corporation proposed to assume is not the name * Whole title amended 1893.