ARTICLE THIRD.

Actions and rights of action against and between joint debtors.

Sec. 1932. Judgment against defendants jointly indebted, when all are not served.

1933. Effect of such judgment.

1934. Execution; indorsement thereupon.

1935. How collected.

1936. Judgment, how docketed; effect of docketing.

1937. Action to charge defendants not personally summoned.

1938. Complaint in such action.

1939. Answer.

1940. Provisional remedies.

1941. Judgment.

1942. Joint debtors may compound separately. Mode and effect.

1943. Satisfying judgment.

1944. Rights of the debtors not released.

1945. Action against persons engaged in transportation.

1946. When partner not sued remains liable.

1947. Continuance of partnership business during action for accounting, etc.

§ 1932. Judgment against defendants jointly indebted, when all are not served.

In an action, wherein the complaint demands judgment for a sum of money against two or more defendants, alleged to be jointly indebted upon contract, if the summons is served upon one or more, but not upon all of the defendants, the plaintiff may proceed against the defendant or defendants, upon whom it is served, unless the court otherwise directs; and, if he recovers final judgment, it may be taken against all the defendants thus jointly indebted.

From Co. Proc., § 136, subd. 1.

§ 1933. Effect of such judgment.

Such a judgment is conclusive evidence of the liability of each defendant, upon whom the summons was personally served, or who appeared in the action. Where it is taken against a defendant, upon whom the summons was served by publication, or without the State, pursuant to an order for that purpose, it has the effect, as against that defendant, specified in section 445 of this act. As against such a defendant, who is allowed to defend after judgment, or as against a defendant not summoned, it is evidence only of the extent of the plaintiff's demand, after the liability of that defendant has been established, by other evidence. From 2 R. S. 377 (Part 3, c. 6, tit. 6), § 2.

1934. Execution; indorsement thereupon.

An execution upon such a judgment must be issued, in form, against all the defendants; but the attorney for the judgment creditor must indorse thereupon a direction to the sheriff, containing the name of each defendant, who was not summoned, and restricting the enforcement of the execution, as prescribed in the next section.

From Id., 3.

1935. How collected.

An execution against the person, issued upon such a judgment, shall not be enforced against the person of a defendant, whose name is so indorsed thereupon. An execution against property, issued upon such a judgment, shall not be levied upon the sole property of such a defendant; but it may be collected out of personal property, owned by him, jointly with the other defendants,

who were summoned, or with any of them; and out of the real and personal property of the latter, or of any of them.

From Id., 4.

1936. Judgment, how docketed; effect of docketing. Where a judgment has been taken, as prescribed in section 1932 of this act, the clerk, with whom the judgment-roll is filed, must write upon the docket, opposite or under the name of each defendant, upon whom the summons was not served, the words, "not summoned; " and a like entry must be made by each county clerk, with whom the judgment is afterwards docketed. The judgment does not, by virtue of its being docketed, bind any real property, or chattel real, owned by such a defendant. But this section does not affect the plaintiff's right of action, to charge the judgment upon any real property.

New.

§ 1937.

Action to charge defendants not personally

summoned.

After the recovery of a judgment against joint debtors, as prescribed in section 1932 of this act, an action may be maintained by the judgment creditor, against one or more of the defendants, who were not summoned in the original action, to procure a judgment, charging his or their property with the sum remaining unpaid upon the original judgment.

From Co. Proc., § 375.

§ 1938. Complaint in such action.

The complaint in such an action must be verified; must contain an allegation that the judgment has not been paid; and must state the sum, remaining unpaid thereupon, at the time of the verification.

From Id., 378.

§ 1939. Answer.

The defendant's answer is restricted to defences or counterclaims, which he might have made in the original action, if the summons therein had been served upon him, when it was first served upon a defendant jointly indebted with him; objections to the judgment; and defences or counterclaims, which have arisen since it was rendered.

From Id., § 379.

§ 1940. Provisional remedies.

For the purpose of obtaining an order of arrest, an injunction order, or a warrant of attachment, the action is regarded as being founded upon the contract, upon which the original judgment was recovered.

New.

§ 1941. Judgment.

Where the judgment is in favor of the plaintiff, it must determine the sum remaining unpaid upon the original judgment; and it may be docketed, and an execution may be issued there upon, as if it was a judgment for the sum so remaining unpaid, and the costs, if any. Costs must be awarded, as if the action was brought upon the original contract, and the sum so remaining unpaid had been recovered therein.

From Co. Proc., § 380.

§ 1942. (Omitted; see Table, p. ii.] Joint debtors may compound separately. Mode and effect.

A joint debtor may make a separate composition with his creditor, as prescribed in this section. Such a composition discharges the debtor making it; and him only. The creditor must execute to the compounding debtor a release of the indebtedness, or other instrument exonerating him therefrom. A member of a partnership cannot thus compound for a partnership debt, until the partnership has been dissolved by consent or otherwise. In that case the instrument must release or exonerate him, from all liability incurred by reason of his connection with the partnership. An instrument, specified in this section, does not impair the creditor's right of action against any other joint debtor, or his right to take any proceeding against the latter; unless an intent to release or exonerate him, appears affirmatively upon the face thereof.

From L. 1838, c. 257, §§ 1, 2, 5; L. 1845, c. 348.

§ 1943. [Am'd, 1909.] Satisfying judgment.

An instrument, specified in section 230 of the Debtor and Creditor Law is deemed a satisfaction-piece, for the purpose of discharging, as prescribed in section 1260 of this act, the docket of a judgment, recovered upon an indebtedness released or discharged thereby, as far as the judg ment affects the compounding debtor. Where the docket of a judgment is discharged thereupon, a special entry must be made upon the docket, to the effect, that the judgment is satisfied, as to the compounding debtor only.

From L. 1838, c. 257, § 2. Am'd by L. 1909, c. 310 (in effect May 11, 1909). § 1944. [Omitted; see Table, p. iii.] Rights of the debtors not released. Where a joint debtor has thus compounded, a joint debtor, who has not compounded, may make any defence or counterclaim, or have any other relief, as against the creditor, to which he would have been entitled, if the composition had not been made. He may require the compounding debtor to contribute his ratable proportion of the joint debt, or of the partnership debts, as the case may be, as if the latter had not been discharged.

From Id., §§ 3, 4.

§ 1945. Action against persons engaged in transportation.

In an action brought against one or more persons, engaged, as a jointstock association, partnership, or otherwise, in the periodical transportation of passengers or property, an objection, to any of the proceedings, cannot be taken by a person properly made a defendant, on the ground that the plaintiff had joined with him, as a defendant, a person not jointly engaged with him in that business, or on the ground that the plaintiff has failed so to join with him a person so jointly engaged, unless the persons so engaged have, at least thirty days before the commencement of the action, filed in the clerk's office of each county, in which they transport passengers or property, a statement showing the names of all of them. A statement so filed, is conclusive, for the purposes specified in this section, as against the persons filing it, until thirty days after filing, in like manner, a new statement, showing a change of interest. From L. 1836, c. 385.

§ 1946. When partner not sued remains liable.

Where, for any cause, one or more partners have not been joined as defendants in an action upon a partnership liability,

1 Section 230 of the Debtor and Creditor Law is the same as former § 1942 of this Code (except the last sentence thereof), which, for convenience sake, is retained in this edition. The last sentence of said § 1942 now forms § 231 of the Debtor and Creditor Law.

and final judgment has been taken against the persons made defendants therein, the plaintiff, if the judgment remains unsatisfied, may maintain a separate action upon the same demand, against each omitted partner, setting forth in the complaint the facts specified in this section, as well as the facts constituting his cause of action upon the demand.

From Co. Proc., § 136, subd. 4.

{ 1947. Continuance of partnership business during action for accounting, etc.

In an action brought to dissolve a partnership, or for an accounting between partners, or affecting the continued prosecution of the business, the court may, in its discretion, by order, authorize the partnership business to be continued, during the pendency of the action by one or more of the partners, upon their executing and filing with the clerk an undertaking, in such a sum and with such sureties as the order prescribes, to the effect that they will obey all orders of the court, in the action, and perform all things which the judgment therein requires them to perform. The court may impose such other conditions, as it deems proper, and it may in its discretion at any time thereafter require a new undertaking to be given. The court may also ascertain the value of the partnership property, and of the interest of the respective partners by a reference or otherwise, and may direct an accounting between any of the partners; and the judgment may make such provision for the payment to the retiring partners, for their interest, and with respect to the rights of creditors, the title to the partnership property, and otherwise, as justice requires, with or without the appointment of a receiver, or a sale of the partnership property.

Now.

CHAPTER XVI.

Actions in Behalf of the People, and Special Proceedings Instituted, in Their Behalf, by State Writ.

TITLE I. Actions in Behalf of the People.

TITLE II.- · Special Proceedings Instituted by State Writ. TITLE I.

Actions in behalf of the people.

Article 1. Action against the usurper of an office or franchise.

2. Action to vacate letters-patent.

3. Action for a fine, penalty, or forfeiture, or upon a forfeited recog nizance.

4. Certain actions, founded upon the spoliation, or other misappropria. tion of public property.

5. Action to recover property escheated, or forfeited for treason.

6. Miscellaneous provisions, relating to actions, etc., in behalf of the people.

ARTICLE FIRST.

Action against the usurper of an office or franchise.

Sec. 1948. Attorney-general may maintain action.

1949. Proceedings when complaint names rightful incumbent.
1950. Action triable by jury.

1951. Assumption of office by person entitled.

1952. Proceedings to obtain books and papers.

1953. Damages; how recovered.

1954. One action against several persons.

1955. When injunction may be granted.

1966. Final judgment in action for usurping office, etc.

§ 1948. [Am'd, 1896, 1909.] action.

Attorney-general may maintain

The attorney-general may maintain an action, upon his own information, or upon the complaint of a private person, in either of the following cases:

1. Against a person who usurps, intrudes into, or unlawfully holds or exercises within the State, a franchise or a public office, civil or military, or an office in a domestic corporation.

2. Against a public officer, civil or military, who has done or suffered an act, which by law works a forfeiture of his office. 3. Against one or more persons who act as a corporation. within the State, without being duly incorporated; or exercises within the State, any corporate rights, privileges or franchises, not granted to them by the law of the State.

4. Against a foreign corporation which exercises within the state any corporate rights, privileges or franchises, not granted to it by the law of this state; or which within the state, has violated any provision of law, or, contrary to law, has done or omitted any act, or has exercised a privilege or franchise, not conferred upon it by the law of this state, where, in a similar case, a domestic corporation would, in accordance with section 131 of the General Corporation Law, be liable to an action te vacate its charter and to annul its existence; or which exercises within the state any corporate rights, privileges or franchises in a manner contrary to the public policy of the state.

From Co. Proc., § 432; 2 R. S. 462 (Part 3, c. 8, tit. 4), § 31. Am'd by L 1896, c. 962; L. 1909, c. 65 (in effect Feb. 17, 1909).