Derivation.-Code civ. proc., § 2306, without change of substance; originally revised from R. S., pt. 3, ch. 5, tit. 8, § 5.

§ 575. Habeas corpus.

If it appears, by affidavit, to the satisfaction of the court, that the person required to be produced is imprisoned within the state, for any cause, except upon a sentence for a felony, or is kept or detained, within the state, by any person, the court may, either before or after making the order for production, issue a writ of habeas corpus to bring him before it, or before the referee, as the case requires. The writ must be served and executed, and disobedience thereto may be punished, as where a writ of habeas corpus is issued, to inquire into the cause of the detention of a prisoner. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 2307, without change; originally revised from R. S., pt. 3, ch. 5, tit. 8, § 7.

§ 576. Report of referee.

The referee must deliver his report to the petitioner, or file it with the clerk, within ten days after the case is closed. He must state therein, whether any person was or was not produced before him, as being the person whose death is in question. He must append thereto, in the form of depositions, the proofs, if any, respecting the identity of any person so produced, with the person whose death is in question; or if no one is so produced, upon the question whether the latter person is living. He must also state, in his report, his conclusions upon the questions controverted before him, (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation. Code civ. proc., § 2308, without change;

originally revised from R. S., pt. 3, ch. 5, tit. 8, § 8.

§ 577. Dismissal of petition when order complied with.

If it appears, to the satisfaction of the court, upon the referee's report, and the proofs thereto appended; or, where a referee is not appointed, upon the allegations and proofs of the parties before the court; that the party, required to produce the tenant for life, or to prove his existence, has fully complied with the order, the court must make an order dismissing the petition, and requiring the petitioner to pay the costs of the proceedings. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 2309, without change; originally revised from R. S., pt. 3, ch. 5, tit. 8, § 9.

§ 578. When life-tenant deemed dead, and petitioner let into possession.

If it appears, from the referee's report, or upon the hearing before the court, that the person, upon whose life the prior estate depends, was not produced; and if the party required to produce him, or to prove his existence, has not proved, to the satisfaction of the court, that he is living; a final order must be made, declaring that he is presumed to be dead, for the purpose of the proceedings, and directing that the petitioner be forthwith let into possession of the real property, as if that person was actually dead. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 2310, without change; originally revised from R. S., pt. 3, ch. 5, tit. 8, § 10.

§ 579. Commission to be issued if life-tenant is without the state.

If before or at the time of the presentation of the referee's report to the court, or, where a referee is not appointed, at any time before the final order is made, the party, upon whom the petition and notice are served, presents to the court presumptive proof, by affidavit, that the person, whose death was in question, is, or lately was, at a place certain, without the state, the court must make an order, requiring the petitioner to take out a commission, directed to one either designated in the order, or to be appointed or more persons, residing at or near that place, upon a subsequent application for the commission for the purpose of obtaining a view of the person, whose death is in question, and of taking such testimony respecting his identity, as the parties produce. The order must also direct that the proceedings upon the petition be stayed, until the return of the commission; and that the petition be dismissed, with costs, unless the petitioner takes out the commission within a time specified in the order, and diligently procures it to be executed and returned, at his own expense. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 2311, without change; originally revised from R. S., pt. 3, ch. 5, tit. 8, § 11.

§ 580. General provisions respecting the com

mission.

It is not necessary, unless the court specially so directs, that the witnesses to be examined should be named in the commission, or that interrogatories should be annexed thereto. The commission must be executed and returned, and prescribed by law for depositions taken without the deposition taken must be filed and used, as the state for use within the state, except as otherwise specially prescribed in this article. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 2312, without change of substance.

§ 581. Petitioner to give notice of its execution. The petitioner must give to the adverse party, or his attorney, written notice of the time when, and the place where, the commissioner or commissioners will attend, for the purpose of executing the commission, as follows:

1. If the place, where the commission is to be executed, is within the United States, or the dominion of Canada, he must give at least two months' notice.

2. If it is within any of the West India islands, he must give at least three months' notice. 3. In every other case, he must give at least four months' notice.

Notice may be given, as required by this section, by serving it as prescribed by law for the action in the supreme court. (Added by L. 1920, service of a paper upon an attorney, in a civil ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 2313, without change of substance; originally revised from R. S., pt. 3, ch. 5. tit. 8, § 12.

§ 582. Execution thereof.

The commissioner or commissioners possess the same powers, and must proceed in the same manner, as a referee, appointed by an order requiring the production of the tenant for life, or proof of his existence; except that they cannot proceed, unless a person is produced before them,

as being the person whose death is in question. The return to the commission must expressly state whether any person was or was not so produced. The testimony, respecting the identity of a person so produced, must be taken, unless otherwise specially directed by the court, as prescribed by law, for taking the deposition of a witness upon oral interrogatories; except that it is not necessary to give any other notice of the time and place of examination, than that prescribed in the last section. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 2314, without change of substance; originally revised from R. S., pt. 3, ch. 5, tit. 8, § 13, in part.

§ 583. Proceedings on return of commission. Upon the return of the commission, the proceedings are the same as upon the report of a referee, as prescribed in sections five hundred and seventy-seven and five hundred and seventy-eight of this chapter; but the court may, in its discretion, receive additional proofs from either party. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 2315, without change of substance; originally a substitute for R. S., pt. 3, ch. 5, tit. 8, §§ 14-16, and remainder of § 13.

§ 584. Costs.

Where costs of a special proceeding, taken as prescribed in this article, are awarded, they must be fixed by the court at a gross sum, not exceeding fifty dollars, in addition to disburse ments. Where provision is not specially made in this article for the award of costs, they may be denied, or awarded to or against either party, as justice requires. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 2316, without change; originally revised from R. S., pt. 3, ch. 5, tit. 8, § 18.

§ 585. Property; when restored.

The possession of real property, which has been awarded to the petitioner; as prescribed in this article, upon the presumption of the death of the person, upon whose life the prior estate depends, must be restored, by the order of the court, to the person evicted, or to his heirs or legal representatives, upon the petition of the latter, and proof, to the satisfaction of the court, that the person presumed to be dead is living. The proceedings upon such an application are the same, as prescribed in this article, upon the application of the person to whom possession is awarded. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 2317, without change; originally revised from R. S., pt. 3, ch. 5, tit. 8, § 19.

§ 586. Remedy of person evicted for rents and profits.

A person evicted, as prescribed in this article, may, if the presumption, upon which he is evicted, is erroneous, maintain an action against the person who has occupied the property, or his executor or administrator, to recover the rents and profits of the property, during the occupation, while the person, upon whose life the prior estate depends, is or was living. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 2318, without change; originally revised from R. S., pt. 3, ch. 5, tit. 8, § 20.

§ 587. Order not conclusive in ejectment. A final order, made as prescribed in this article, awarding to the petitioner the possession of real property is presumptive evidence only, in an action of ejectment, brought against him by the person evicted, or in an action brought as prescribed in the last section, of the life or death of the person, upon whose life the prior effect Apr. 15, 1921.) estate depends. (Added by L. 1920, ch. 930, in

Derivation.-Code civ. proc., § 2219, without change.

ARTICLE XIX

(Article added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Proceedings for Voluntary Partition of Infant's or Incompetent's Real Property

Section 590. Petition by guardian or committee for
authority to agree.
591. Contents of petition.

592. Court may authorize partition.
593. Effect of releases.

§ 590. Petition by guardian or committee for authority to agree.

Where an infant, idiot, lunatic, or habitual drunkard, holds real property, in joint tenancy or in common, the general guardian of the infant, or the committee of the idiot, lunatic, or habitual drunkard, may apply to the supreme court or to the county court of the county, wherein the real property is situated, for authority to such application affects the interests of an inagree to a partition of the real property. Where competent person who has been committed to a state institution, and is an inmate thereof, notice of such application must be given to the superintendent, acting superintendant, or state officer having special jurisdiction over the institution where the incompetent person is confined. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 1590, as am. by L. 1895, ch. 946, L. 1905, ch. 434, without change; originally revised from R. S., pt. 3, ch. 5, tit. 3, §§ 86, 89.

§ 591. Contents of petition.

Such an application must be by a petition, which must describe the real property proposed and to be partitioned; must state the rights and interests of the several owners thereof; must specify the particular partition proposed to be made; and must be verified by affidavit. The court may order notice of the application to be given to such persons as it thinks proper. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 1591, without change; originally revised from R. S., pt. 3, ch. 5, tit. 3, §§ 87, 89, in part.

§ 592. Court may authorize partition.

If, after inquiry into the merits of the application, by a reference or otherwise, the court is of the opinion that the interests of the infant, or of the idiot, lunatic, or habitual drunkard will be promoted by the partition, it may make an order authorizing the petitioner to agree to the partition proposed, and in the name of the infant, or of the idiot, lunatic, or habitual drunkard, to execute releases of his right and interest in and to that part of the property which falls to the shares of the other joint-tenants or tenants in

common. The court may, in its discretion, for the furtherance of the interests of said infant, idiot, lunatic, or habitual drunkard, direct partition to be so made as to set off to him or them his or their share in common with any of the other owners, provided the consent in writing thereto of such owners shall be first obtained. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 1592, as am. by L. 1886, ch. 208, without change; originally revised from R. S., pt. 3, ch. 5, tit. 3, §§ 87, 89, in part.

§ 593. Effect of releases. Releases so executed have the same validity and effect, as if they were executed by the person in whose behalf they are executed, and as if the infant was of full age, or the idiot, lunatic, or habitual drunkard was of sound mind, and competent to manage his affairs. (Added by L. 1920, ch. 930, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 1593, without change; originally revised from R. S., pt. 3, ch. 5, tit. 3, § 88a, and part of 91.

§ 44-a. Examination by comptroller of money and securities paid into court.

The comptroller may examine the books, accounts and vouchers of every bank and trust company or other depository or of any public official in the state, in anywise relating to moneys and securities paid into court, under an order of any court of record or directed to be paid into court by statute; and where the same has not been paid to the chamberlain of the city of New York or to any county treasurer of the state, the comptroller upon application duly made shall be entitled to an order directing the payment and transfer of all such money and securities, from any such bank, trust company, depository or public official to the treasurer of the proper county, and in the city of New York to the city chamberlain. (Added by L. 1920, ch. 929, in effect Apr. 15, 1921.) Derivation.-Code civ. proc., § 744-a, without change.

44-b. Title of successor of custodian of court funds.

On the expiration of the official term of a public officer, or where a vacancy occurs in his office, by death or otherwise, all public stock, bonds, mortgages, and other securities deposited into court and held by him, vest in his successor in office; and all money paid into court and deposited in a bank, trust company or other depository, to his credit, vests in, and must be carried to, the account of his successor in office. (Added by L. 1920, ch. 929, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., 750, broadened include any custodian of court funds.

to

§ 44-c. Deposit of funds or money paid into court.

All funds or moneys paid into court shall be deposited in such savings bank, trust company, bank, banking association or with such banker, as shall be designated by the state comptroller, as soon as received by the custodian thereof. But the money must be deposited in the county where the fund belongs, where it can be done conveniently and safely and with advantage to the parties interested. (Added by L. 1920, ch. 929, in effect Apr. 15, 1921.) Derivation.-Code civ. proc., § 746, without change of

substance.

whom received, the amount of money, if any, and a description of the securities or other property received, if any, and each addition of interest; also the date and description of each order for payment and the dates and amounts of payments thereunder and to whom paid; also an account of each change of investment, if any. (Added by L. 1920, ch. 929, in effect Apr. 15, 1921.)

Derivation.-Code civ. proc., § 752, without change.

§ 44-e. Annual reports to comptroller of custodian of court funds.

Every treasurer or financial officer who has in his charge or possession or under his control, or who keeps a record of money, bonds, stocks, mortgages or any other securities or property deposited into court and held by him, must, once in each year, make a report to the state comptroller at the time and in the form and manner which he may prescribe, containing a true statement of his accounts for the preceding year or from the time of the last report. This report must be verified by the oath of such officer, and must be accompanied by the certificate of the proper officer of each bank or trust company, stating the exact amount on deposit with such corporation. Every savings bank, bank or trust company having in its possession, pursuant to an order of a court of record, money, bonds, stocks, mortgages or any other securities or property which were not first deposited in compliance with the provisions of section one hundred and thirtyfour of the civil practice act, must, once in each year, make a report to the comptroller at such time as he shall prescribe, stating separately for each case the name of the court, the title of the action or proceeding, the date of the receipt, from whom received, for whom received, the amount of money, if any, a description of the securities or other property, each addition of interest and each change of investment, the amount so held at the date of the report, the date and description of each order directing payment and the dates and amounts of payments thereunder and to whom made. Every officer, or bank or trust company mentioned in this section, shall furnish any additional report to the comptroller or to the court at such time and in such detail as may be required. (Added by L. 1920, ch. 929, in

Derivation.-Code civ. proc., § 753, without change of substance.

§ 44-f. Annual report to appellate division by custodiam of court funds.

On or before the first day of February in each year the county treasurer in each county

and the chamberlain of the city of New York shall file a report duly verified with the appellate division of the supreme court of the department in which the county is embraced containing a statement of all moneys in his hands on the first day of January preceding that have been paid into court or received by

him to the credit of any action or proceeding, specifically stating the securities in which the moneys so paid into court are invested or the depositories in which such moneys are deposited. (Added by L. 1920, ch. 929, in effect Apr. 15, 1921.)

Derivation.-General rules of practice, 68.