of the estate of said decedent, shall be made parties defendant. In case no executor or administrator of such decedent shall have been appointed at the time said action is begun, that fact shall be alleged in the complaint. The executors or administrators, if any, as the case may be, of a deceased person, who, if living, should be a party to such action, shall be made parties defendant therein, and in case no executor or administrator of such deceased person shall have been appointed, that fact shall be alleged in the complaint. Where the interlocutory judgment directs a sale of the premises sought to be partitioned; or of some part thereof, the premises so sold pursuant to such interlocutory judgment, shall be free from the lien of every debt of such decedent or decedents, except debts which were a lien upon the premises before the death of such decedent or decedents. When the action is brought before three years have elapsed from the granting of such letters of administration or letters testamentary, as the case may be, upon the estate of the dece dent from whom the plaintiff derived his title, the final judgment shall direct that the proceeds of the sale remaining after the payment of the costs, referee's fees, expenses of sale, taxes, assessments, water rates, and liens established before the death of the decedent, including any sum allowed to a widow in satisfaction of her right of dower, therein directed to be paid, be forthwith paid into court by the referee making such sale by depositing the same with the county treasurer of the county, in which the trial of the action is placed, to the credit of the parties entitled thereto, to await the further order in the premises. Where the action is brought before three years have elapsed from the granting of letters of administration or letters testamentary, as the case may be, upon the estate of a deceased person, who, if living, should be a party to the action, the final judgment shall direct that the sbare of the proceeds of such sale, which would have been his, if living, be paid into court by such referee, by depositing the same with such county treasurer, to await the further order in the premises. Upon the certificate of the surrogate of the county of which the decedent was, at the time of his death, a resident, showing that three years have elapsed since the issuing of letters testamentary or letters of administration, as the case may be, upon the estate of said decedent, and that no proceedings for the mortgage, lease or sale of the real property of said decedent for the payment of his debts or funeral expenses, or both, is pending, and upon the certificate of the county clerk of the county where the real prop erty sold under the interlocutory judgment is located, showing that no notice provided for in section twenty-seven hundred and fifty-one of the code of civil procedure has been filed in his office, the court wherein the final judgment was made shall, upon the application of any party to said action, make an order directing the county treasurer to pay to said party from said deposit, the amount to which he is entitled under the said final judgment, with the accumulation thereon, if any, less the fees of said county treasurer. Any party to such action may, at any time after final judgment, upon notice to the executors or administrators of the decedent from whom the party applying derived his share or interest, apply to the court in which said action is pending for leave to withdraw the deposit or share of the deposit, adjudged in the final judgment to belong to him; and, upon said application, the court may, in its discretion, make an order directing the county treasurer to pay over to said party the deposit, or the share of the deposit, adjudged in the final judgment to belong to him, but said order shall not be made until said party so apply. ing shall have furnished a bond to the people of the state of New York in the penalty of twice the amount of the deposit sought to be withdrawn, with two or more good and sufficient sureties, approved by the judge or justice of the court making such order, and filed, with such approval, in the office of the clerk of the county in which such action is pending, to the effect that the said party so withdrawing said deposit will pay any and all claims, not exceeding the amount of said deposit, when thereunto required by order of the court or by order of the surrogate or of the surrogate's court in a proceeding to mortgage, lease or sell the real property of such decedent. But where final judgment shall be rendered in any action for partition after three years have elapsed from the granting of letters of administration or letters testamentary, as the case may be, upon the estate of the decedent from whom the plaintiff derived title, upon producing to the court the certificate of the surrogate of the county of which the decedent was at the time of his death a resident, showing that three years have elapsed since the issuing of letters of administration or letters testamentary as the case may be upon the estate of said decedent and that no proceeding for the mortgage, lease or sale of the real property of the decedent for the payment of his debts or funeral expenses or both is pending and upon the certificate of the clerk of the county where the real property sold under the interlocutory judgment is located showing that no notice provided for in section twenty-seven hundred and fifty-one of the code of civil procedure has been filed in his office, the court rendering the final judgment shall direct the payment of the different shares to the several parties entitled thereto; except that the share of a deceased person who, if living, should be a party to the action when the action was commenced before three years have elapsed from the granting of letters of administration or letters testamentary on his estate shall be paid into court as above provided. § 2. This act shall take effect September first, eighteen hundred and ninety-seven. Chap. 730. AN ACT conferring jurisdiction upon the board of claims to hear, Became a law May 22, 1897, with the approval of the Governor. The People of the State of New York, represented in Senate and Section 1. Jurisdiction is hereby conferred upon the board of claims to hear, audit and determine the alleged claim of Michael T. Horner against the state, for money alleged to have been paid by him to the state in excess of what is alleged to have been due under a certain contract, for stove hollow-ware and enamelled stoveware and plumbers' iron castings supplies, to be manufactured by the convicts in Auburn state prison, alleged to have been made between him and the agent and warden of Auburn state prison in the year eighteen hundred and ninety-three, and to award thereon such sum as the said board shall deem just and reasonable, although such claim may have accrued more than two years prior to the time when it is filed; provided, however, that such claim shall be filed with said board within one year after the passage of this act. Jurisdiction to hear claim. Appeal from § 2. Either party may take an appeal from any award made award. under authority of this act, to the third appellate division of the supreme court, provided such appeal be taken by service of a notice of appeal within thirty days after service of a copy of the award. § 3. This act shall take effect immediately. Act amended. Issue of County bonds. Chap. 732. AN ACT to amend chapter five hundred and eighty-four of the laws of eighteen hundred and ninety-six, entitled "An act providing for the erection of an armory and the acquisition of a site therefor, in the city of Buffalo, for the seventy-fourth regiment, national guard of the state of New York, and making an appropriation for commencing the erection of such armory." Became a law May 22, 1897, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Section three of chapter five hundred and eighty-four of the laws of eighteen hundred and ninety-six, entitled "An act providing for the erection of an armory and the acquisition of a site therefor, in the city of Buffalo, for the seventy-fourth regiment, national guard of the state of New York, and making an appropriation for commencing the erection of such armory," is hereby amended so as to read as follows: § 3. The treasurer of the county of Erie, whenever a written notice shall be served upon him by the adjutant-general, the inspector-general and the chief of ordnance of the state of New York, who are hereby made and constituted a commission for the purposes of this act, stating that the title to such land has been acquired, as provided in this act, shall execute in behalf of and in the name of the county of Erie interest bearing bonds in the amount, or aggregating the amount, named in such notice, and shall, after ten days' notice, specifying the time and place where bids will be received therefor, sell the same to the highest bidder, at a price not less than the par value thereof, such notice to be published for five days in the official paper of the county of Erie. The aforesaid bonds shall bear interest at the rate of not to exceed four per centum per annum, payable semi-annually; both principal and interest to be made payable at the office of the county treasurer of Erie county, at the city of Buffalo, New York; one-third of said bonds shall be made payable in five years, one-third thereof in ten years and one-third thereof in fifteen years from the date of their issue; or at such other periods as said treasurer may decide is for the best interests of said county; and the amount thereof principal. and the semi-annual interest, as it shall respectively become due thereon, shall be raised in the several tax budgets of said county Tax for interest and for the years when said bonds and semi-annual interest shall become due and shall be applied to the payment of such bonds. The proceeds of the sale of such bonds shall be retained by said county treasurer and shall by him be paid out for the costs and expenses of acquiring said title and for grading, filling, excavating, draining, paving, fencing, making sewer and water connections and laying sidewalks about said land, upon the written requisition of the aforesaid commission. § 2. This act shall take effect immediately. Chap. 742. AN ACT authorizing the state commissioner of excise to treat that Became a law May 22, 1897, with the approval of the Governor. The People of the State of New York, represented in Senate and tion of inhabitants. town for Section 1. The state commissioner of excise shall, on or before Enumerathe first day of May, eighteen hundred and ninety-seven, cause an enumeration to be made of the inhabitants of the city of Rome residing without the limits of the tax corporation district "for the purpose of fixing the excise taxes to be assessed in said territory under the provision of section eleven of the liquor tax law," and Separate thereafter, said territory shall be treated as a separate town by said state commissioner of excise under the provisions of chapter one hundred and twelve of the laws of eighteen hundred and ninety-six for such purpose, and the excise taxes assessed therein shall be collected and distributed as now provided by law." § 2. This act shall take effect immediately. Vol. I 100 excise pur poses. |