TITLE 1. CHAPTER VIII. MISCELLANEOUS INTERLOCUTORY PROCEEDINGS, AND TITLE I. TITLE II. MISTAKES, OMISSIONS, DEFECTS, AND IRREGULARITIES. -TENDER, AND OTHER OFFERS AND REQUESTS TO THE ADVERSE PARTY. TITLE III.-PAYMENT OF MONEY INTO COURT, AND CARE AND DIS- TITLE IV.- - PROCEEDINGS UPON THE DEATH OR DISABILITY OF A TITLE V.-MOTIONS AND ORDERS GENERALLY. TITLE VI. - MISCELLANEOUS PRACTICE REGULATIONS. TITLE I. Mistakes, omissions, defects, and irregularities. SECTION 721. Defects cured by verdict, etc., and by judgment. 722. Such defects to be supplied. 723. Amendments by the court; disregarding immaterial errors, etc. 726. Papers lost or withheld; how supplied. 727. Order of court; when necessary to amend. 728. Disregarding defects in affidavits. 729. Certain bonds, etc., when sufficient. 730. Amending defects in bonds, etc. § 721. In a court of record, where a verdict, report, or decision has Defects been rendered, the judgment shall not be stayed, nor shall a judgment cured by be reversed, impaired, or affected, by reason of either of the following etc., and imperfections, omissions, defects, matters, or things, in the process, ment. 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 variance between the summons and complaint. 5. For a mispleading, insufficient pleading, 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 verlict, report, or decision, or the judgment, is in his favor. 8. For omitting to allege any matter, without proof of which the verdict, report, or decision ought not to have been rendered. verdict, by judg. TITLE 1. Such de fects to be 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 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 variances, supplied. 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. Amendments by the court; ing imma terial errors, etc. § 723. The court may, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleaddisregard ing, 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. Relief against etc.; amendments to conform proceedings. § 724. The court may likewise, in its discretion, and upon such terms Omissions, 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. Returns by officers, etc. Papers lost or with § 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 held; how any person, the court may authorize a copy to be filed and used, instead supplied. of the original. Order of court; when nec. essary to amend. Disregarding defects in affidavits. bonds, etc., cient. § 727. A process, pleading, or record, shall not be altered, by the clerk or any other officer of the court, or by any other person, without the direction of the court, or of another court of competent authority; except in a case where a party, or his attorney, is specially authorized by law to amend a pleading. § 728. The want of a title, or a defect in the title, of an affidavit, does not impair it, if it intelligibly refers to the action or special proceeding, in which it is made. Certain § 729. A bond or undertaking, required by statute to be given by a when suffi-' person, to entitle him to a right or privilege, or to take a proceeding, is sufficient, if it conforms substantially to the form therefor, prescribed by the statute, and does not vary therefrom, to the prejudice of the rights of the party, to whom, or for whose benefit it is given. TITLE 2. Amending § 730. Where such a bond or undertaking is defective, the court, officer, or body, that would be authorized to receive it, or to entertain defects in a proceeding in consequence thereof, if it was perfect, may, on the bonds, etc., application of the persons who executed it, amend it accordingly; and it shall thereupon be valid, from the time of its execution. TITLE II. Tender, and other offers and requests to the adverse party. SECTION 731. Tender after suit. 732. Amount to be paid into court. 733. Effect of sufficient tender. 734. When to be deducted from recovery, etc. 735. Requiring admission of genuineness of paper. 736. Offer to liquidate damages conditionally. 737. Effect of refusal of offer. 738. Defendant's offer to compromise; proceedings thereon. 739. Plaintiff's offer to compromise counterclaim; proceedings thereon. 741. Rule if offer made within ten days before trial. after suit. § 731. Where the complaint demands judgment for a sum of money Tender only; and the action is brought to recover a sum certain, or which may be reduced to certainty by calculation; or to recover damages for a casual or involuntary personal injury, or a like injury to property; the defendant, or his attorney, may, at any time before the trial, tender to the plaintiff, or his attorney, such a sum of money, as he conceives to be sufficient to make amends for the injury, or to pay the plaintiff's demand; together with the costs of the action, to that time. § 732. A tender, made as prescribed in the last section, does not Amount to be paid avail the defendant, unless the money is accepted, or is paid into court into court. within five days after the tender. Notice of the payment into court must be served upon the plaintiff's attorney, within five days after it is made. If the plaintiff takes out the amount paid in, he accepts the tender. tender. § 733. If it appears, upon the trial, that the sum so tendered was Effect of sufficient to pay the plaintiff's demand, or to make amends for the sufficient injury, and also to pay the costs of the action, to the time of the tender, the plaintiff cannot recover costs or interest, from the time of the tender, but must pay the defendant's costs from that time. deducted § 734. If the plaintiff proceeds in the action, after accepting the When to be tender, the sum accepted must be deducted from the recovery, and from rejudgment rendered for the residue, if any; and if the tender and covery, etc. acceptance do not appear in the pleadings, a memorandum thereof must be annexed to the judgment-roll. The plaintiff's right to recover costs, and his liability to pay costs to the defendant, are determined by the amount of the residue. admission $735. The attorney for a party may, at any time before the trial, Requiring exhibit to the attorney for the adverse party, a paper, material to the of genuineaction, and request a written admission of its genuineness. If the ad-ness of mission is not given, within four days after the request, and the paper paper. TITLE 2. Offer to liquidate damages ally. is proved or admitted on the trial, the expenses, incurred by the party exhibiting it, in order to prove its genuineness, must be ascertained at the trial, and paid by the party refusing the admission; unless it appears, to the satisfaction of the court, that there was a good reason for the refusal. § 736. In an action to recover damages for breach of a contract, the defendant's attorney may, with the answer, serve upon the plaintiff's condition attorney, a written offer, that, if the defendant fails in his defence, the damages may be assessed at a specified sum. If the plaintiff serves notice, that he accepts the offer, with or before the notice of trial, and damages are awarded to him on the trial, they must be assessed accordingly. Effect of refusal of offer. Defend ant's offer §737. If the plaintiff does not accept the offer, he cannot prove it, upon the trial. But if the damages, awarded to him, do not exceed the sum offered, the defendant is entitled to recover the expenses, necessarily incurred by him in preparing for the trial, with respect to the question of damages. The expenses must be ascertained, by the judge, or the referee, by or before whom the cause is tried. § 738. The defendant may, before the trial, serve upon the plaintiff's to compro- attorney, a written offer, to allow judgment to be taken against him, mise; pro- for a sum, or property, or to the effect, therein specified, with costs. ceedings thereon. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may be taken. If the plaintiff, within ten days thereafter, serves upon the defendant's attorney, notice that he accepts the offer, he may file the summons, complaint, and offer, with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If notice of acceptance is not thus given, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time. Plaintiff's offer to compro ter-claim; proceed ings there on. § 739. Where the defendant sets up a counterclaim, to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff's mise coun- recovery below fifty dollars, the plaintiff may serve, upon the defendant's attorney, a written offer, to allow judgment to be taken against him, for a specified sum, with costs, or against the defendant for a specified sum, and against the plaintiff for costs. If the defendant, within ten days thereafter, serves, upon the plaintiff's attorney, notice that he accepts the offer, either party may file the summons, complaint, answer, and offer, or copies thereof and proof of acceptance; and thereupon the clerk must enter judgment accordingly. If notice of acceptance is not thus given, the offer cannot be given in evidence, upon the trial; but, if the defendant fails to recover a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time. Offer and acceptance, by § 740. Unless an offer or an acceptance, made as prescribed in either of the last four sections, is subscribed by the party making it, his whom sub- attorney must subscribe it, and annex thereto his affidavit, to the effect that he is duly authorized to make it, in behalf of the party. scribed. Rule if offer made within ten § 741. If the adverse party moves the trial, before the expiration of ten days, after an offer is made, he is deemed to have rejected the offer. days before The party making the offer cannot move the trial, until the expiration of the ten days. trial. In certain § 742. Where it appears, to the satisfaction of the court, in a case cases, judg. where judgment has been taken, upon the acceptance of an offer, as TITLE 3. ment to be prescribed in this title, that the action was commenced, upon an express or tacit, direct or indirect, agreement or understanding between the set aside. parties, that an offer should be made by one party, for the purpose of enabling the other party to take judgment thereupon; the judgment must be set aside, within one year after it is entered, upon the application of a subsequent judgment creditor of the party, against whom the judgment was taken; or of a third person interested in property, affected by the judgment; or, where the judgment was taken against two or more persons as joint debtors, upon the application of either of them, who did not join in, or consent to the offer. But where a judgment is so set aside, the title to property, sold to a purchaser, for value, and in good faith, shall not be affected thereby. TITLE III. Payment of money into court, and care and disposition thereof. SECTION 743. Party bringing money into court is discharged. 744. General rules may regulate concerning payment into court. 745. Money to be paid to county treasurer, and securities taken in his name. 747. Powers of supreme court as to transfer, etc., to and investment by 748. When other courts have like power. 749. Powers of certain officers, touching securities, etc. 750. Provisions relating to death, removal, etc., of officer. 751. Authority for payment of money by bank or trust company. 752. How county treasurer to keep his accounts. 753. County treasurer to report annually to the court. 754. These provisions applicable in New-York to the chamberlain. bringing court is discharged. § 743. A party bringing money into court, pursuant to the direction Party of the court, is discharged thereby from all further liability, to the ex- money into tent of the money so paid in. § 744. The general rules of practice may contain regulations, con- General cerning the payment of money into court, in an action, and the care rules may and disposition thereof, which shall govern, where provision is not concerning otherwise made by law. regulate payment into court, Money to county and secu. name. § 745. Unless the court otherwise specially directs, money, paid into court, must be paid, either directly, or by the officer who is required by be paid to law first to receive it, to the county treasurer of the county, where the treasurer, action is triable. Where it is paid to an officer, other than the county rities taken treasurer, he must pay it to the county treasurer, within four days after in his he receives it. In the city of New-York, he must pay it to the chamberlain, within two days after he receives it. A bond, mortgage, or other security, or a certificate or transfer of stock, taken upon the investment of money paid into court, must be taken to the county treasurer of the county where the fund belongs, in his name of office; or to such other county treasurer, as the court specially directs. But this and the next section do not prevent the court, upon the application of a party to an action, from directing in what manner or place, money, paid into court in the action, shall be deposited or invested. . where and § 746. Provision may be made, in the general rules of practice, for Funds; the deposit, in a bank or trust company, of money paid into court; for how depos |