Undertaking on appeal.-Denike v. Denike, 61 App. Div. 492, 70 N. Y. Supp. 629; Ramsey v. Childs, 34 Hun 329. See also cases cited under §§ 1309, 1326, 1327, 1351.

In taxpayer's action.-O'Connor v. Walsh, 83 App. Div. 179, 82 N. Y. Supp. 499.

Consent of obligors.-Langley v. Warner, 1 N. Y. 606; Shaw v. Lawrence, 14 How. 94.

When amendment permitted.-Croghan v. Living

§ 151. Justification.

ston, 17 N. Y. 218; Dale v. Gilbert, 128 N. Y. 625; Matter of Fenn, 128 App. Div. 10, 112 N. Y. Supp. 431; Keck v. Gross, 6 Misc. 438, 26 N. Y. Supp. 1111; Bondy v. Collier, 13 Misc. 15, 33 N. Y. Supp. 966; Levy v. Scheringer, 13 N. Y. Supp. 560.

Amendment of bond on appeal.-Schermerhorn v. Anderson, 1 N. Y. 430; Langley v. Warner, 1 N. Y. 606; O'Sullivan v. Connors, 22 Hun 137; Wilson v. Allen, 3 How. 369.

Where a party desires to except to the sufficiency of the sureties, to a bond or undertaking in an action or special proceeding, he may serve a written notice, within ten days after the service of a copy of the bond or undertaking, that he excepts to the sufficiency of the sureties. Within ten days thereafter, the sureties, or other sureties in a new bond or undertaking to the same effect, must justify before the court in which the action or proceeding is pending or a judge thereof, or a referee appointed by the same or a county judge. At least five days' notice of the justification must be given. A referee may be appointed upon the motion of either party or upon the court's own motion to take the justification of such sureties and to report the evidence upon the same to the court or judge with his opinion. The court may further direct that either party shall pay the expenses of such reference. If the court or judge finds the sureties sufficient, he must indorse his allowance of them upon the bond or undertaking or a copy thereof, and a notice of the allowance must be served upon the attorney for the exceptant. The effect of a failure so to justify and procure an allowance is the same as if the bond or undertaking had not been given. The court shall also have power, in case it shall be made to appear to its satisfaction, upon motion, that the exception was taken unnecessarily or for purposes of vexation or delay, to set the same aside and approve the bond or undertaking, with costs.

Derivation.-Code civ. proc., 1335, as am. by L. 1882, ch. 397, L. 1891, ch. 369, applicable to undertaking on appeal to the court of appeals, extended, as amended, to bonds and undertakings generally in actions or special proceedings. Supersedes first sentence of general rule of practice 5. § 1335 originally revised from code of proc., § 341.

Application.-Matter of Sheldon, 117 App. Div. 357, 103 N. Y. Supp. 177; Finkelstein v. Punie, 162 App. Div. 119, 147 N. Y. Supp. 317; Newman v. Abrams, 190 App. Div. 956, 179 N. Y. Supp. 938.

Justification of sureties; where taken.-Boss v.
Hutchinson, 101 Misc. 1, 166 N. Y. Supp. 448.
Failure to justify.-Manning v. Gould, 90 N. Y. 476;

Zwecker v. Levine, 135 App. Div. 432, 120 N. Y. Supp.
425; Finkelstein v. Punie, 162 App. Div. 119, 147 N. Y.
Supp. 317; Riddle v. MacFadden, 60 Misc. 569, 112 N. Y.
Supp. 498; Seidman v. Finklestein, 76 Misc. 549, 135 N. Y.
Supp. 648; Hoffman v. Smith, 34 Hun 485; Ginsburg v.
Kuntz, 60 Hun 504, 15 N. Y. Supp. 237.

Service of notice of exception.-Liddy v. Long
Island City, 102 N. Y. 726.

Stay of proceedings.-Laux v. Gildersleeve, 22 App. Div. 98, 47 N. Y. Supp. 770.

Approval of undertaking.-Howley v. Kraemer, 35 Misc. 444, 71 N. Y. Supp. 948; Rabinowita v. Lipchitz, 65 Misc. 311, 121 N. Y. Supp. 669.

§ 152. Justification of several sureties in smaller sum.

Where the penalty of the bond, or twice the sum specified in the undertaking, is five thousand dollars or upwards, the court or judge, in its or his discretion, may allow the sum in which a surety is required to justify to be made up by the justification of two or more sureties each in a smaller sum. But in that case a surety cannot justify in a sum less than five thousand dollars, and when two or more sureties are required by law or rule to justify the same person cannot so contribute to make up the sum for more than one of them. Derivation.-Code civ. proc., § 813, first two sentences.

§ 153. Deposit to protect surety.

A party of whom a bond or undertaking is required may agree with his sureties for the deposit of any or all moneys for which such sureties are or may be held responsible, with a trust company authorized by law to receive deposits, if such deposit is otherwise proper, and for the safe-keeping of any or all other depositable assets for which such sureties may be held responsible, with a safe-deposit company authorized by law to do business as such, in such a manner as to prevent the withdrawal of such moneys and assets or any part thereof, except with the written consent of such sureties, or an order of the court made on such notice to them as it may direct.

Derivation. Code civ. proc., § 813, last sentence, without change of substance.

Withdrawal of deposits.-Matter of Chesterman, 75

App. Div. 573, 78 N. Y. Supp. 345.

Construction with code civ. proc., § 2576.-Matter of Butts, 109 Misc. 348, 179 N. Y. Supp. 877.

§ 154. Security for infant or incompetent.

Where in the course of an action or proceeding security shall be required for protecting the interests of an infant, lunatic, idiot or habitual drunkard it shall be in the form of a bond of

an approved surety company, or the bond of individuals secured by an approved 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. Upon a breach of the condition of any such bond, the court must direct it to be prosecuted for the benefit of the person injured.

Derivation. See general rule of practice 51 as to bond of guardian ad litem of infant, and rules 54 and 57 as to bonds of general and special guardians. The last sentence is code civ. proc., § 2353, now applicable to bonds mentioned in code civ. proc., §§ 2351, 2352, bonds of committees of lunatics and other incompetents, and also bonds of guardians of infants in proceedings to dispose of

§ 155. Security for the people:

infants' real estate. § 2353 originally revised from R. S., pt. 3, ch. 1, tit. 2, § 173; L. 1864, ch. 417, § 3; L. 1874, ch. 446, tit. 2, § 8.

Liability of sureties.-Hunt v. Hunt, 58 Ń. Y. 666; Long v. Long, 142 N. Y. 545; Matter of Lampman, 22 Hun 239; Koch v. Le Frois, 61 Hun 205, 15 N. Y. Supp. 928; Brown v. Balde, 3 Lans. 283.

Where an action is brought by the people for the benefit of a person having an interest in the question, the attorney-general, as a condition of bringing the action, shall require the relator to give satisfactory security to indemnify the people against the costs and expenses thereof.

Derivation.-Code civ. proc., § 1986, as am. by L. 1918, ch. 104, second sentence, in substance; originally revised from code of proc., § 434.

Reference.-Cost where action is brought by people on relation of private person, C. P. A., § 1495.

Complaint.-People ex rel. Delehanty v. McIntyre, 179 App. Div. 528, 166 N. Y. Supp. 634.

Surety company.-Matter of Thurber, 162 N. Y. 244; Haines v. Hein, 67 App. Div. 389, 73 N. Y. Supp. 293; In re Keogh, 22 Misc. 747, 50 N. Y. Supp. 998; Bick v. Reese, 52 Hun 125, 5 N. Y. Supp. 121.

Undertaking on appeal. Travis v. Travis, 48 Hun 343, 1 N. Y. Supp. 357.

§ 156. Surety company bond or undertaking.

The execution of any bond or undertaking, in an action or special proceeding, by a fidelity or surety company authorized by the laws of this state to transact business, shall be equivalent to the execution of said bond or undertaking by two sureties, and such company, if excepted to, shall justify through its officers or attorney in the manner required by law of fidelity and surety companies. Any such company may execute any such bond or undertaking as surety by the hand of its officers, or attorney, duly authorized thereto by resolution of its board of directors, a certified copy of which resolution, under the seal of said company, shall be filed with each bond or undertaking.

Derivation.-Code civ. proc., § 811, as am. by L. 1886, of first sentence, without change of substance. The ch. 416, L. 1895, ch. 510, second sentence and last clause remainder of the section is included in rules.

§ 157. United States bonds in lieu of cash bail.

Wherever this 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.

Derivation.-New.

§ 158. Discharge of surety.

1. The surety or sureties or the representatives of any surety or sureties upon the bond heretofore or hereafter executed, of any trustee, committee, guardian, assignee, receiver, executor, administrator or other fiduciary, shall be entitled as a matter of right to be, and shall be, discharged from liability as hereinafter provided, and to that end, on notice to the principal named in such bond, may apply to the court that accepted such bond or to the court of which the judge that accepted such bond was a member or to any judge thereof, praying to be relieved from liability as such surety or sureties for the act or omission of such principal occurring after the date of the order relieving such surety or sureties hereinafter provided for and that such principal be required to account and give new sureties.

2. Such notice of such application may be served on said principal personally within or without the state, not less than five days prior to the date on which such application is to be made, unless it satisfactorily appears to the court, or a judge thereof, that personal notice cannot be given with due diligence within the state, in which case notice may be given in such manner as the court or a judge thereof directs. Pending the hearing of such application the court or judge may restrain such principal from acting except to preserve the trust estate until further order.

3. Upon the hearing of such application, if the principal does not file a new bond in the usual form to the satisfaction of the court or judge, the court or judge must make an order requiring the principal to file a new bond within such reasonable time not exceeding five

days as the court or judge in such order fixes. If such new bond shall be filed upon such hearing or within the time fixed by said order, the court or judge must thereupon make a decree or order requiring the principal to account for all his acts and proceedings to and including the date of such order and to file such account within a time fixed, not exceeding twenty days, and releasing the surety or sureties making such application from liability upon the bond for any act or default of the principal, subsequent to the date of such decree or order. If the principal fail so to file such new bond within the time specified, a decree or order must be made revoking the appointment of such principal or removing him and requiring him to so account and file such account within twenty days.

4. If the principal fail to file his account as in this section provided, such surety or sureties, or representatives thereof, may make and file such account with like force and effect as though made and filed by such principal, and upon the settlement thereof credit shall be given for all commissions, costs, disbursements, and allowances to which the principal would be entitled were he accounting, and allowance shall be made to such surety or sureties or representative for the expense incurred in so filing such account and procuring the settlement thereof.

5. After the filing of an account as required or permitted in this section, the court or judge, upon the petition of the principal or surety or sureties or the representatives of any such surety or sureties, must issue an order requiring all persons interested in the estate or trust funds to attend a settlement of such account at a time and place therein specified, and upon the trust fund or estate being found or made good and paid over or properly secured, the surety or sureties shall be discharged from any and all further liability, and the court or judge shall settle, determine and enforce the rights and liabilities of all parties to the proceedings in like manner and to the same extent as in actions for an accounting in the supreme court. Upon demand made in writing by the principal, such surety or sureties, or representatives thereof, shall return any compensation that has been paid for the unexpired portion of such suretyship.

Derivation.-Code civ. proc., § 812, as am. by L. 1892, ch. 568, L. 1895, ch. 511, L. 1899, ch. 726, L. 1901, ch. 524, except first four sentences. The first part of the section is included in rules. § 812 new in code civ. proc. See R. S., pt. 3, ch. 1, tit. 2, § 148.

Application.-Manning v. Gould, 90 N. Y. 476; Matter of Thurber, 162 N. Y. 244; Siebert v. Milbank, 9 App. Div. 566, 88 N. Y. Supp. 993; Lawyers' Surety Co. v. Ayrault, 165 App. Div. 254, 150 N. Y. Supp. 800; National Surety Co. v. Stallo, 171 App. Div. 206, 156 N. Y. Supp. 988; Matter of U. S. Fidelity & Guaranty Co.,

50 Misc. 147, 98 N. Y. Supp. 217; Matter of Butts, 109 Misc. 348, 179 N. Y. Supp. 877; National Surety Co. v. Stallo, 156 N. Y. Supp. 987.

Amendment of 1901.-Matter of American Surety Co., 61 Misc. 542, 115 N. Y. Supp. 860.

Discretionary power of court.-Matter of Thurber, 162 N. Y. 244.

Liability of surety for premiums for unexpired term.-National Surety Co. v. Stallo, 171 App. Div. 206, 156 N. Y. Supp. 988.

§ 159. Action on bond or undertaking to people or public officer.

Where a bond or undertaking has been given as prescrived by law, in the course of an action or a special proceeding, to the people or to a public officer, for the benefit of a party or other person interested, and provision is not specially 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. 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.

Bonds of assignees for benefit of creditors.-Petersen v. National Surety Co., 107 Misc. 606, 177 N. Y. Supp. 742.

Order of arrest.-Krause v. Rutherford, 45 App. Div. 132, 60 N. Y. Supp. 1047.

Mechanic's Hen.-Pierce, Butler & Pierce Mfg. Co. v. Wilson, 118 App. Div, 662, 103 N. Y. Supp. 678; Vitelli v. May. 120 App. Div. 448, 104 N. Y. Supp. 1082; Ringle v. Wallis Iron Works, 16 Misc. 167, 38 N. Y. Supp. 875; D'Andre v. Zimmerman, 17 Misc. 357, 39 N. Y. Supp. 1086; Reilly v. Poerschke, 19 Misc. 612, 44 N. Y. Supp. 422; Schultz v. Teichman Engineering & Const. Co., 79 Misc. 357, 140 N. Y. Supp. 429; In re John P. Kane Co., 66 N. Y. Supp. 684.

Liability in general.-Hemmingway v. Poucher, 98 N. Y. 281; Culliford v. Walzer, 158 N. Y. 65; Allaire v. Kalfen, 20 App. Div. 546, 47 N. Y. Supp. 969; Hamilton v. Gorman, 24 App. Div. 85, 48 N. Y. Supp. 1002; Hennion v. Kepp, 30 App. Div. 288, 51 N. Y. Supp. 960;

O'Beirne v. Cary, 34 App. Div. 328, 54 N. Y. Supp. 337, affd., 165 N. Y. 661; Markoe v. Am. Surety Co., 44 App. Div. 285, 60 N. Y. Supp. 674, affd., 167 N. Y. 602; People v. McKenna, 62 App. Div. 327, 70 N. Y. Supp. 1057; Petit v. Allen, 64 App. Div. 579, 72 N. Y. Supp. 287; Fisher v. Boecher, 5 Misc. 592, 25 N. Y. Supp. 1144; Bennett v. Mulry, 6 Misc. 304, 26 N. Y. Supp. 790; Barton v. Donnelly, 6 Misc. 473, 27 N. Y. Supp. 525; Carter v. Hodge, 6 Misc. 575, 27 N. Y. Supp. 219p, revd., 150 N. Y. 532; Risk v. Uffelman, 7 Misc. 133, 27 N. Y. Supp. 392; Quarch v. Metz, 15 Misc. 622, 37 N. Y. Supp. 218; Standring v. Moore, 16 Misc. 106, 38 N. Y. Supp. 813; De Camp v. Bullard, 22 Misc. 441, 50 N. Y. Supp. 807, affd., 33 App. Div. 627, 53 N. Y. Supp. 1102, affd., 159 N. Y. 450; Matter of Keogh, 22 Misc. 747, 50 N. Y. Supp. 998; Spang v. Patterson, 23 Misc. 536, 52 N. Y. Supp. 678; Eisenbud v. Gellert, 26 Misc. 367, 55 N. Y. Supp. 952; Silverstein v. Ruggiero, 26 Misc. 872, 57 N. Y. Supp. 1147. affd., 28 Misc. 139, 58 N. Y. Supp. 1059; Nies v. Fancher, 88 Misc. 630, 151 N. Y. Supp. 155; Foo Long v. Am. Surety Co., 76 Hun 264, 27 N. Y. Supp. 743, affd., 146 N. Y. 251; N. Y. City Suburban Water Co. v. Bissell, 78 Hun 176, 28 N. Y. Supp. 938; Eder v. Gilderslee, 85 Hun 411, 32 N. Y. Supp. 1056, affd.. 155 N. Y. 672; Sterne v. Talbot, 89 Hun 368, 35 N. Y. Supp. 412.

§ 160. Action upon a penal bond.

A bond in a penal sum, executed within or without the state and containing a condition to the effect that it is to be void upon performance of any act, has the same effect, for the purpose of maintaining an action or special proceeding or two or more successive actions or special proceedings thereupon, as if it contained a covenant to pay the sum or to perform the act specified in the condition thereof. But the damages to be recovered for a breach or successive breaches of the condition, cannot exceed, in the aggregate, the penal sum, except where the condition is for the payment of money; in which case, they cannot exceed the penal sum, with interest thereupon from the time when the defendant made default in the performance of the condition.

Derivation.-Code civ. proc., § 1915, without change; originally revised from R. S., pt. 3, ch. 6, tit. 2, §§ 12, 13, and tit. 6, §§ 5-15.

References.-Actions by private persons on official bonds, public officers law, $ 20-28; prosecution of bonds in surrogates' courts, Surr. Ct. A., § 113-115; action on bond to the people or a public officer for the benefit of a suitor, C. P. A., § 159.

Application.-Fosmire v. National Surety Co., 104

Misc. 166, 171 N. Y. Supp. 474; Tillotson v. Martin, 40
Hun 316; Matter of Stockbridge, 10 Daly 33.

Interest. Steinbock v. Evans, 122 N. Y. 551; Cuzzeo
v. American Bonding Co., 226 N. Y. 171; Polhemus Print.
Co. v. Hallenbeck, 46 App. Div. 563, 61 N. Y. Supp. 1056;
Sachs v. American Surety Co., 72 App. Div. 60, 76 N. Y.
Supp. 335, affd., 177 N. Y. 551.

Becovery.-Beers v. Shannon, 73 N. Y. 292.

§ 161. Limitation as to tion upon undertaking on appeal.

An action shall not be maintained upon an undertaking given upon an appeal, taken as prescribed for appeals to the supreme court from inferior courts, to the appellate division of the supreme court and from determinations in special proceedings until ten days have expired, since the service upon the attorney for the appellant and upon the sureties on such undertaking, of a written notice of the entry of a judgment or order affirming the judgment or order appealed from or dismissing the appeal. Such service may be made by mailing such notice in a postpaid wrapper addressed to said surety or sureties at the last known post-office address of such surety or sureties. Where an appeal to the court of appeals from that judgment or order is perfected, and security is given thereupon to stay the execution of the judgment or order appealed from, an action shall not be maintained upon the undertaking given upon the preceding appeal until after the final determination of the appeal to the court of appeals.

Derivation.-Code civ. proc., § 1309, as am. by L. 1894, ch. 108. New matter covers references omitted. § 1309 originally revised from code of proc., § 348, in part. Application.-Barber v. Rutherford, 12 Misc. 33, 33 N. Y. Supp. 89; Galinger v. Engelhardt, 26 Misc. 49, 55 N. Y. Supp. 334; Staples v. Gokey, 34 Hun 289; Sterne v. Talbot, 89 Hun 368, 35 N. Y. Supp. 412; Hildreth v. Lerche, 10 N. Y. Supp. 238, 23 Abb. N. C. 428; Weil v. Kempf, 12 Civ. Proc. Rep. 379; Johnstone v. Connor, 18 Civ. Proc. Rep. 19.

Time of commencement of action.-Clason v. Kehoe, 87 Hun 368, 34 N. Y. Supp. 431.

Service of notice of entry.-Porter v. Kingsbury, 71 N. Y. 588; Rae v. Beach, 76 N. Y. 164; Evans v. Backer, 101 N. Y. 289; Reining v. City of Buffalo, 102 N. Y. 308, 312; Loweree v. Tallman, 30 App. Div. 225, 52 N. Y. Supp. 431; Hill v. Warner, 39 App. Div. 424, 57 N. Y. Supp.

355; Milligan v. Cottle, 92 Hun 323, 36 N. Y. Supp. 904, affd., 154 N. Y. 751.

Complaint.-First Bank of Notasulga v. Casualty Co., 176 App. Div. 109, 162 N. Y. Supp. 349; North Side Hoisting Co. v. Southern Surety Co., 94 Misc. 167, 157 N. Y. Supp. 903; Monarch Mining Co. v. Laughlin, 146 N. Y. Supp. 1068.

Liability of sureties.-Wood v. Fisk, 73 N. Y. 245; Seymour v. Smith, 114 N. Y. 481; Concordia Sav. & A. Assn. v. Read, 124 N. Y. 189; Chester v. Broderick, 131 N. Y. 549, 43 St. Rep. 933; Foo Long v. American Surety Co., 146 N. Y. 251; Vail v. Reynolds, 51 Hun 468, 4 N. Y. Supp. 322; Clason v. Kehoe, 87 Hun 368, 34 N. Y. Supp. 431; Wallerstein v. American Surety Co., 15 N. Y. Supp. 954; McElroy v. Mumford, 16 N. Y. Supp. 691; Seacord v. Morgan, 3 Keyes, 636, 36 How. Pr. 487.

§ 162. Security by people, municipal corporation or public officer.

Each provision of statute or rule requiring a party to give security for the purpose of procuring an order of arrest, an injunction order, or a warrant of attachment, or as a condition of obtaining any other relief, or taking any proceeding; or allowing the court or a judge to require such security to be given, is to be construed as excluding an action brought by the people of the state, or by a domestic municipal corporation; or by a public officer, in behalf of the people or of such a corporation; except where the security to be given in such an action is specially regulated by the provision in question.

Derivation.-Code civ. proc., § 1990, as am. by L. 1894, ch. 90, first part, without change of substance. Last part of section is covered under provisional remedies, 820, post. § 1990 originally revised from L. 1876, ch. 449. Beferences.-Security on appeal not required when

64

taken by the people, C. P. A., § 570; nor by a municipal corporation, Id., 571.

In general.-City of Yonkers v. Federal Sugar Refining Co., 221 N. Y. 206; People v. Remington, 45 Hun 347.

Where a party has appeared, a notice or other paper required to be served in an action must be served upon his attorney. If a defendant has not appeared, service of a notice or other paper in the ordinary proceedings in an action need not be made upon him, unless he is actually confined in jail for want of bail. This section does not apply to the service of a summons or other process; or of a paper to bring a party into contempt; or to a case where the mode of service is specially prescribed by law.

Derivation.-First two sentences are code civ. proc., 799; originally revised from code of proc., §§ 414, 417. Last sentence is code civ. proc., § 802, as am. by L. 1909, ch. 65; originally revised from code of proc., § 408, in part, and § 418.

Effect of appearance.-Rice v. Ehele, 55 N. Y. 518; Matter of White, 52 App. Div. 225, 65 N. Y. Supp. 168; Stephens v. Hall, 10 N. Y. Supp. 753.

Amended complaint.-Weil v. Martin, 24 Hun 645. Notice of appeal.-McLear v. Balmat, 194 App. Div. 827, 186 N. Y. Supp. 180.

Discovery.-Union Trust Co. v. Driggs, 49 App. Div.

§ 164. Service through post-office.

406, 63 N. Y. Supp. 381; Rossner v. New York Museum Assn., 20 Hun 182.

Contempt proceedings.-Goldie v. Goldie, 77 App. Div. 12, 16, 79 N. Y. Supp. 268; Johnson v. Ackerman, 192 App. Div. 890, 181 N. Y. Supp. 772; Grant v. Greene, 121 App. Div. 756, 106 N. Y. Supp. 532; People ex rel. Platt v. Rice, 80 Hun 437, 452, 30 Ñ. Y. Supp. 457, affd., 144 N. Y. 249.

Habeas corpus.-Grant v. Greene, 121 App. Div. 756, 106 N. Y. Supp. 532; Matter of Scrafford, 59 Hun 320, 12 N. Y. Supp. 943; People ex rel. Platt v. Rice, 80 Hun 437, 452, 30 N. Y. Supp. 457; affd. 144 N. Y. 249.

Where it is prescribed by statute or in the general rules of practice that a notice must be given or a paper must be served, within a specified time before an act is to be done; or that the adverse party has a specified time after notice or service within which to do an act; if service is made through the post-office, pursuant to statute or rule, three days shall be added to the time specified, except that service of notice of trial may be made through the post-office not less than sixteen days before the day of trial, including day of service. Deposit in a branch post-office is equivalent to deposit in a general post-office.

Derivation.-The first sentence is code civ. proc., $798, without change of substance. The last sentence is code civ. proc., § 801, in substance, now applicable only to New York City, extended generally: $ 798, as am. by L. 1909, ch. 423, L. 1910, ch. 577; originally revised from code of proc., § 412.

Reference.-Rules of civil practice, 20. Application.-Miller v. Longshore, 147 App. Div. 214, 131 N. Y. Supp. 1041; Rethy v. Orszag, 102 Misc. 540, 169 N. Y. Supp. 235.

Time to serve amended pleading.-Schlegel v. Church of Holy Trinity, 194 N. Y. 391, affg. 127 App. Div. 929, 111 N. Y. Supp. 1143; Bucklin v. Buffalo, A. & A. R. Co., 41 Misc. 557, 85 N. Y. Supp. 114, affd., 93 App. Div. 607, 87 N. Y. Supp. 1129; Seckel v. Tangemann, 53 Misc. 268, 103 N. Y. Supp. 77; Armstrong v. Phillips, 60 Hun 243, 14 N. Y. Supp. 582; Ward v. Gillies, 11 N. Y. Supp. 797.

Change of venue.— -Binder v. Metropolitan St. Ry.

Co., 68 App. Div. 281, 74 N. Y. Supp. 54; Lesser v. Williams, 52 Hun 610, 5 N. Y. Supp. 97.

Notice of motion.-Borsuk v. Blauner, 93 App. Div. 306, 87 N. Y. Supp. 851; Van Arsdale v. King, 87 Hun 617, 33 N. Y. Supp. 858, revd. on other grounds, 152 N. Y. 69.

Notice of trial.-Germania Life Ins. Co. v. Powell, 29 Misc. 424, 61 N. Y. Supp. 942; Walker v. Chilson, 20 N. Y. Supp. 527.

Setting aside order taken by mistake.-Atkinson v. Abraham, 78 App. Div. 498, 79 N. Y. Supp. 680.

Putting case over term.-Ban v. Madden, 134 App. Div. 750, 119 N. Y. Supp. 477.

Notice of rejection of claim against estate.-Persbacker v. Murphy, 154 App. Div. 854, 140 N. Y. Supp. 537.

Branch post-office.-Korn v. Lipman, 201 N. Y. 404, 407, affg. 141 App. Div. 927, 126 N. Y. Supp. 1134.

§ 165. Access to prisoner for purpose of serving personally.

Subject to reasonable regulations, which the sheriff may establish for that purpose, a sheriff, jailor or other officer who has the custody of a prisoner must permit such access to him as is necessary, for the personal service of a paper in an action or special proceeding to which the prisoner is a party and which must be personally served.

Derivation.-Code civ. proc., § 132. Former section applied only to civil prisoners, by code civ. proc., § 3347, subd. 1. New section covers all prisoners. See Werckman v. Werckman, 4 Civ. Proc. 146.

Service of process.-Werckman v. Werckman, 4 Civ. Proc. 146.

§ 166. Delivery to prisoner of papers served on officer.

A sheriff or jailor upon whom a paper, in an action or special proceeding, directed to a prisoner in his custody, is lawfully served, or to whom such a paper is delivered for a prisoner,