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§ 559. Proceedings on petition.

A person filing a petition, as prescribed in the last section, may, after the expiration of twenty days from the day of sale, apply to the supreme court, at a term held within the judicial district, embracing the county where his petition is filed, for an order, pursuant to the prayer of his petition. Notice of the application must be served, in the manner prescribed by law for the service of a paper upon an attorney in a civil action, in a court of record, upon each person, who has filed a like petition, at least eight days before the application; and also upon each person, upon whom a notice of sale was served, as shown in the affidavit of sale, or upon his executor or administrator. But, if it is shown to the court, by affidavit, that service upon any person, required to be served, cannot be so made with due diligence, notice may be given to him in any manner which the court directs. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2406.

§ 560. Order for distribution.

Upon the presentation of the petition, with due proof of notice of application, the court must make an order referring it to a suitable person to ascertain and report the amount due to the petitioner, and to each other person, which is a lien upon the surplus money; and the priorities of the several liens thereupon. Upon the ⚫ coming in and confirmation of the referee's report, the court must make such an order, for the distribution of the surplus money, as justice requires. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2407.

§ 561. Limitation of last four sections.

The last four sections do not apply to surplus money, arising upon the sale of real property, of which a decedent died seized where letters testamentary or letters of administration, upon the decedent's estate, were, within two years before the sale, issued from a surrogate's court within the state, having jurisdiction to issue them. (Added by L. 1920, ch. 930, in effect April 15,

1921.)

Derivation: Code of Civil Procedure, § 2408.

§ 562. Delivery of certain affidavits to purchaser.

Each county clerk and register in this state, in whose office, affidavits in foreclosure of mortgages by advertisement, or the certified copies thereof, have been or shall be filed and recorded pursuant, to the provisions of this article is hereby authorized to deliver the same to the purchaser of the mortgaged property on the

foreclosure sale, and such purchaser shall be entitled to such delivery. (Added by L. 1920, ch. 930, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 2408a.

§ 563. Application of this article to mortgages of the state.

This article does not affect any provision of law, inconsistent therewith, especially relating to the foreclosure of mortgages to the people of the state, or to the commissioners for loaning certain moneys of the United States. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2409.

ARTICLE 18.

(Article added by L. 1920, ch. 930, in effect April 15, 1921.) PROCEEDINGS TO DISCOVER THE DEATH OF A TENANT FOR LIFE.

SECTION 570. Petition for production of tenant for life.

571. Contents of petition.

572. Service of petition and notice.

573. Proceedings upon presentation of petition.
574. Service of order; powers of court or referee.

575. Habeas corpus.

576. Report of referee.

577. Dismissal of petition when order complied with.

578. When life-tenant deemed dead, and petitioner let into possession. 579. Commission to be issued if life-tenant is without the state.

580. General provisions respecting the commission.

581. Petitioner to give notice of its execution.

582. Execution thereof.

583. Proceedings on return of commission.

584. Costs.

585. Property; when restored.

586. Remedy of person evicted for rents and profits.
587. Order not conclusive in ejectment.

§ 570. Petition for production of tenant for life.

A person entitled to claim real property, after the death of another who has a prior estate therein, may, not oftener than once in each calendar year, apply by petition to the supreme court, at a special term thereof, held within the judicial district, wherein the property, or a part thereof, is situated, for an order, directing the productiron of the tenant for life, as prescribed in this article, by a person, named in the petition, against whom an action of ejectment to recover the real property can be maintained, if the tenant for life is dead or, where there is no such person, by the guardian, husband, trustee, or other person, who has, or is entitled to, the custody of the person of the tenant for life, or the care of his estate. (Added by L. 1920, ch. 930, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 2302.

§ 571. Contents of petition.

The petition must be in writing, and verified by the affidavit of the petitioner, to the effect, that the matters of fact therein set forth are true. It must contain:

1. A description of the real property, and a statement of the petitioner's interest therein, and of such other facts as show that the case is within the provisions of the last section.

2. An averment that the petitioner believes that the person, upon whose life the prior estate depends, is dead, together with a statement of the grounds upon which the petitioner's belief is founded. (Added by L. 1920, ch. 930, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 2303.

§ 572. Service of petition and notice.

A copy of the petition, including the affidavit, together with notice of the time and place at which the petition will be presented, must be personally served, at least fourteen days before its presentation, upon the person required, by the prayer thereof, to produce the tenant for life. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2304.

§ 573. Proceedings upon presentation of petition.

Upon the presentation of the petition and affidavit, with due proof, by affidavit, of service of a copy thereof, and of the notice, if sufficient cause to the contrary is not shown by the adverse party, the court must either issue a commission, as prescribed in the following sections of this article; or make an order, directing the adverse party, at a time and place therein specified, before the court, or a referee therein designated, to produce the person upon whose life the prior estate depends, or, in default thereof, to prove that he is living. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2305.

§ 574. Service of order; powers of court or referee.

Where an order, requiring the production of the tenant for life, or proof that he is living, is made as prescribed in the last section, a certified copy thereof must be served, at least fourteen days before the time therein specified, upon the person required to make the production or proof, or upon his attorney. Upon presentation of proof of service, by affidavit, the court or the referee must, at the time and place specified in the order, cr at the time and place to which the hearing may be adjourned, hear the allegations and proofs of the parties, respecting the identity of any person produced, with the person whose death is in question; or, if the latter person is not produced, respecting the reasons for the failure to produce him, and whether he is living. Where a referce is appointed, he has the same powers, and is entitled to the same compensation, as a referee appointed for the trial of an issue in a civil action in a court of record. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2306.

§ 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 be fore 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 April 15, 1921.) Derivation: Code of Civil Procedure, § 2307.

§ 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 ap pend 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 April 15, 1921.)

Derivation: Code of Civil Procedure, § 2308.

§ 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 April 15, 1921.)

Derivation: Code of Civil Procedure, § 2309.

§ 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 hic 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 purpse of the proceedings, and directing that the petitioner be forthwith let into possession

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