CHAPTER VIII. MISCELLANEOUS INTERLOCUTORY PROCEEDINGS, AND REGULATIONS OF PRACTICE. TITLE I.-MISTAKES, OMISSIONS, DEFECTS, AND IRREGULARITIES. PARTY. TITLE III.-PAYMENT OF MONEY INTO COURT, AND CARE AND DISPOSITION THEREOF. TITLE IV.-PROCEEDINGS UPON THE DEATH OR DISABILITY OF A PARTY, OR TITLE V.-MOTIONS AND ORDERS GENERALLY. 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. Defects cured by verdict, etc., and by judgment. [AMENDED BY CH. 542 OF 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: 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 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. So in the original. 8. For omitting to allege any matter, without proof of which the verdict, report, or decision ought not to have been rendered. 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 judgmentroil. 12. For an omission on the part of a referee to be sworn; or 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. Such defects to be supplied. Each of the omissions, imperfections, defects and variances, 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 trial, must, when necessary, be supplied, and the proceeding amended, by the court wherein the judgment is rendered, or by an appellate court. § 723. Amendments by the court ; disregarding immaterial errors, et cetera.— The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading, 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 proceedings 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. When amending a pleading or permitting the service of an amended or supplemental pleading in a case which is on the general calendar of issues of fact, the court may direct that the case retain the place upon such calendar which it occupied before the amendment or new pleading was allowed, and that the proceedings had upon the amended or supplemental pleadings shall not affect the place of the case upon such calendar, or render necessary the service of a new notice of trial. [AM'D BY CH. 591, L. 1900. In effect Sept. 1, 1900.] § 724. Relief against omissions, etc., amendments to conform proceedings. The court may likewise, in its discretion, and upon such terms 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. § 725. Returns by officers, etc. 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. Papers lost or withheld; how supplied. Where an original pleading or paper is lost, or withheld by any person, the court may authorize a copy to be filed and used, instead of the original. § 727. Order of court; when necessary to amend. A process, plead. ing, 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. Disregarding defects in affidavits. The want of a title, or a defect in the title, of an affidavit, does not impair it, if it intelligibly reters the action or special proceeding, in which it is made. $79. Certain bonds, etc., when sufficient. A bond or undertaking, retired by statute to be given by a person, to entitle him to a right or prive, or to take a proceeding, is sufficient, if it conforms substantially to the I therefor, prescribed by the statute, and does not vary therefrom, to the dice of the rights of the party, to whom, or for whose benefit it is $730. Amending defects in bonds, etc. Where such a bond or dertaking is defective, the court, officer, or body, that would be authoried to receive it, or to entertain a proceeding in consequence thereof, if it was perfect, may, on the application of the persons who executed it, amend it accordingly and it shall thereupon be valid, from the time of its execu TITLE II. Tender, and other offers and requests to the adverse party. eros 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 counter-claim; proceedings thereon. 740. Offer and acceptance, by whom subscribed. 41. Rule if offer made within ten days before trial. *742. In certain cases, judgment to be set aside. $731. Tender after suit. Where the complaint demands judgment for m of money only; and the action is brought to recover a sum certain, which may be reduced to certainty by calculation; or to recover damages a casual or involuntary personal injury, or a like injury to property; the dant, or his attorney, may, at any time before the trial, tender to the tiff, or his attorney, such a sum of money, as he conceives to be sufSent to make amends for the injury, or to pay the plaintiff's demand; gether with the costs of the action, to that time. 732. Amount to be paid into court. [AMENDED BY CH. 416 OF 1877.] Alder, made as prescribed in the last section, does not avail the defend ess the money is accepted, or is paid into court, and notice thereof riting served upon the plaintiff's attorney before the trial, and within days after the tender. If the plaintiff takes out the amount paid in he the tender. 48. Effect of sufficient tender. If it appears, upon the trial, that so tendered was sufficient to pay the plaintiff's demand, or to make for the injury, and also to pay the costs of the action, to the time of dar, the plaintiff cannot recover costs or interest, from the time of er, but must pay the defendant's costs from that time. § 734. When to be deducted from recovery, etc. If the plaintiff proceeds in the action after accepting the tender, the sum accepted must be deducted from the recovery, and judgment rendered for the residue, if any; and if the tender and 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 cost to the defendant, are determined by the amount of the residue. § 735. Requiring admission of genuineness of paper. The attorney for a party may, at any time before the trial, exhibit to the attorney for the adverse party, a paper material to the action, and request a written admission of its genuineness. If the admission is not given, within four days after the request, and the paper 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 good reason for the refusal. 8736. Offer to liquidate damages conditionally In an action to recover damages for breach of a contract, the defendant's attorney may, with the answer, serve upon the plaintiff's attorney, a written offer, that, if the defendant fails in his defence, the damages may be assessed at a specified 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. sum. § 737. Effect of refusal of order. [AMENDED BY CH. 416 OF 1877.] 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 of the question of damages. The expenses must be ascertained, and the amount thereof determined, by the judge, or the referee, by or before whom the cause is tried. § 738. Defendant's offer to compromise; proceedings thereon [AMENDED BY CH. 416 OF 1877.] The defendant may, before the trial, serve upon the plaintiff's attorney, a written offer, to allow judgment to be taken against him for a sum, or property, or to the effect, therein specified, with costs. 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 sepa rate judgment may be taken. If the plaintiff, within ten days thereafter, serves upon the defendant's attorney, a written notice that he accepts the offer, he may file the summons, complaint and offer, with proof of accept ance, 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. § 739. Plaintiff's offer to compromise counter-claim; proceedings thereon. [AMENDED BY CH. 416 OF 1877.] Where the defendant sets up a counter-claim, to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff's 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 recovery is not more favorable to the defendant than that so offered, he will not be entitled to recover costs from the time of the offer, but must pay costs from that time. $740. Offer and acceptance, by whom subscribed. Unless an offer or an acceptance, made as prescribed in either of the last four sections, is subscribed by the party making it, his 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. $741. [Stricken out by Ch. 416 of 1877.] $742. [Stricken out by Ch. 416 of 1877.] 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. 746. Funds; where and how deposited or invested. 747. Powers of supreme court as to transfer, etc., to and investment by guardian, etc. 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. $743. Party bringing money into court is discharged. A party bringing money into court, pursuant to the direction of the court, is discharged hereby from further liability, to the extent of the money so paid in. $744. General rules may regulate concerning payment into court. The comptroller of the State of New York shall supervise the administration of all the fands paid into any court of record, and shall prescribe regulations and rules for the care and disposition thereof, which shall be observed by all parties interested therein, unless the court having jurisdiction over the same, shall make different directions, by special order duly entered in accordance with section 747 of this act; and the comptroller may at cry time require any county clerk or clerk of any court of record, to file with any county treasurer an officially certified copy of any record, document or paper, or extracts therefrom, which he may deem necessary for the use of said county treasurer in the administration of much funds; the fees of said clerk for making and certifying such copy or copies shall be a charge upon the county where such records, documents or papers are recorded or filed. [AM'D BY CH. 269 OF 1896. In effect Sept. 1, 1896.] 745. Money to be paid to county treasurer, and securities, taken in his name. Unless the court otherwise specially directs, money, paid to court, must be paid, either directly, or by the officer who is required by law first to ve it, to the county treasurer of the county, where the action is triable. Where it is Fato an officer, other than the county treasurer, he must pay it to the county treasurer, within four days after 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, C & certificate or transfer of stock, taken upon the investment of money paid into court, Dust 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 |