mortgage on real estate, in an amount double that of the property involved, including the interest or income during the minority of the infant or during the incompetency as the case may be, and approved as to form and sureties by the court in which the action or proceeding is pending or by a judge thereof. (C. P. A. § 154.) A section in much the same language was recommended by the Board of Statutory Consolidation in its report.

A new section has been placed in the proposed act providing that wherever the act or the rules authorize or require cash bail or security, unregistered bonds of the United States may be delivered to the proper officer or person in lieu of cash to the amount of the face value of the bonds. (C. P. A. § 157.)

Section 1314 of the Code now provides that on an appeal by a domestic municipal corporation no security is required to perfect the appeal unless the court in or from which the appeal is taken requires security to be given. In the new practice it is provided that such security may be required by order of the court in or from which the appeal is taken, except that if the appeal be from an order in a special proceeding made by the judge of a court of record, such security may be required by order of the Supreme Court. (C. P. A. § 586.):

LEAVE TO APPEAL TO THE COURT OF APPEALS

A new provision has been inserted in the Civil Practice Act which provides that if the Court of Appeals be in recess during all or a part of the period of thirty days when an application for leave to appeal must be taken to such court after refusal of the appellate division to grant such leave, the application may be made upon notice served within such period- to be heard after the expiration thereof, if noticed for a day not later than ten days after the court shall have reconvened. (C. P. A. § 606.)

GUARDIAN AD LITEM'S LIABALITY FOR COSTS

Code section 429 provides that a guardian ad litem for an infant plaintiff shall be responsible for costs "except where such infant prosecutes as a poor person." Code section 477 provides that a guardian ad litem for an infant defendant" is not liable for the costs of the action, unless specially charged therewith

by the order of the court, for personal misconduct." Code section 3249 provides that "where costs are awarded against an infant plaintiff, they may be collected by execution or otherwise, from his guardian ad litem, in like manner as if the latter was the plaintiff."

In lieu of the above provisions, a new section has been included in the new practice (C. P. A. § 205) providing that "a guardian ad litem for an infant is not liable for costs unless specially charged therewith by the order of the court," thus placing the matter of the responsibility of the guardian ad litem for costs in every case in the hands of the court.

TENDER AND OFFER

The Committee has retained provisions providing for the tender of money after suit brought and for the payment into court in case of refusal to accept the tender, and providing also for offer to compromise. (C. P. A. §§ 171-179.) In including the provisions as to tender the Committee has changed the practice in certain respects. At the present time, when a defendant pays a sum of money into court as a tender in an action, it has been held that "the moneys belonged to the plaintiff from the moment of their deposit by force of their payment into court." Taylor v. Brooklyn Elec. R. R. Co., 119 N. Y. 561, 563. In case the plaintiff accepts the defendant's tender, he can proceed with the action nevertheless. Resort, therefore, to these provisions is rare. The Committee in its proposed sections has changed the existing rule that title vests in the plaintiff immediately upon payment into court. Under the Committee's suggested sections, if a plaintiff accepts a tender he will not be permitted to continue the action and if he refuses to accept and subsequently fails to recover judgment, he will not be entitled to take out of court the moneys paid in by defendant as a tender but if he recovers judgment, the sum paid into court shall apply on the judgment and the surplus, if any, will be refunded to the defendant. The Committee also has extended the rule as to tender by permitting a plaintiff to make a tender to defendant after a counterclaim has been interposed in like manner and with like effect as a tender by a defendant. These two changes are set forth in language similar to the provisions now contained in the New Jersey practice.

VESTING OF TITLE TO REAL PROPERTY AFTER EXECUTION SALE The Committee has omitted from the Civil Practice Act (C. P. A. 732) the provision added to section 1440 of the Code by the amendment of laws 1881, chapter 618. The Code section now provides that if the title of the grantee under a sheriff's deed after a sale on execution is adjudged for any reason to be null and void in an action brought for that purpose by the judgment debtor, such judgment shall have no force and effect unless within twenty days after the entry of such judgment, the plaintiff shall pay to such grantee or his assigns the sum of money paid upon the sale by the grantee with interest, including the costs and expenses of the grantee in defending the action in which the judgment was recovered and in the event of the judgment debtor's failure to pay such purchase money and expenses, within the time limit, the title to the property shall be valid in the grantee. This provision has been omitted by the Committee because it was held by the Court of Appeals in Gilman v. Tucker, 128 N. Y. 190 to be unconstitutional. The court held that the amendment deprives the owner of the property without due process of law and further that the provision is unnecessary, existing provisions being sufficient.

MATRIMONIAL ACTIONS

In the Civil Practice Act proposed by the Committee, several important changes were suggested in reference to the annulment of marriages. Subsequent to its introduction by the Committee, two bills drafted by the Committee's counsel passed the Legislature and were signed by the Governor, which carried into effect the proposals of the Committee as to code sections 17421744. Code section 1742 authorizing an action for an annulment of a marriage by a woman, married under the age of sixteen years, was repealed as obsolete. The amendment of section 7 of the Domestic Relations Law increasing to eighteen years the age of legal consent for both men and women superseded section 1742. The difficulty in reference to the construction of sections 1743-1744 of the Code, the apparent effect of the language of which sections, as amended, created a discrepancy as to the cases in which a husband and wife might commence an action for the annulment of a marriage has been removed. It had been held at special term in several instances that while the wife was abso

lutely barred from maintaining such an action, if she cohabited with her husband after she had attained the age of eighteen years, the husband was permitted to cohabit with his wife until he had reached the age of twenty-one without being barred from the right of annulment. The Committee believed that such effect was not intended by the Legislature and therefore proposed the amendment of the section so that a marriage should not be annuled at the suit of a party who was of the age of legal consent at the time it was contracted, or by a party who at any time after he or she attained that age freely cohabited with the other party as husband or wife. (C. P. A. §§ 1145-1146.)

Code 1774 as included in the Civil Practice Act has been amended to provide that the interlocutory judgment in an annulment or divorce action may provide, in the discretion of the judge, for the support and maintenance of the children of a marriage until the entry of final judgment in addition to the payment of alimony. (C. P. A. § 1190.)

Committee's Suggestions as to Rules of Court

The Committee in preparing its proposed Civil Practice Act and other bills containing material to be retained in the form of statute eliminated many of the present Code sections. The greater portion of such provisions were restated as suggested rules of court. With these were included the present General Rules of Practice. In some instances the original test has been rewritten, but in most cases the provisions have been left substantially unchanged, the Committee believing that it would be better to have the text in practically its original form before the body charged with the work of revising the rules. The matter to be placed in rules covers details of practice and procedure which should be eliminated from the statutes. The Committee recommends that the tentative rules presented by it be adopted until such revised rules shall become effective.

Summary

The Committee has included in this report a general outline of the work to which it has directed its efforts since it was created. Some portions of the report have been included in previous reports and publications of the Committee, but are restated here so that

a summary of the views of the Committee as a result of its investigations might in the future be found embraced in one complete report.

The Committee has had the co-operation of a large number of the judges and lawyers of the State, and takes this opportunity of expressing its appreciation of the valuable assistance rendered. Special committees of the New York State Bar Association, the Bar Association of the City of New York, the New York County Lawyers' Association, the Brooklyn Bar Association, the Association of the Bar of the County of Bronx, and other bar associations, appointed to consider the revision of the civil practice, have given much time to the study of the subject and this Committee has been glad to avail itself of the results of their work.

The Committee believes that its Civil Practice Act will be found convenient and workable by judges and lawyers generally, and that its proposed plan, carried to completion, will go far toward establishing a better system of practice in our courts. Dated at Albany, April 17, 1919.