PRINCIPAL AND SURETY 71 assigned to conduct his action []; and a defendant in an action §§ 223-225 involving his right, title, or interest, in or to real or personal property, may petition the court, in which the action is pending, for leave to defend the action as a poor person, and to have an attorney and counsel assigned to conduct his defence. [Note 1538.] PRESUMPTION, see Evidence Law. ARTICLE 29 PRINCIPAL AND AGENT against § 223. Where an injury results from the act or omission of a deputy Limitation or agent, the time, within which an action to recover damages by of action by reason thereof, must be commenced by the principal, against the principal deputy or agent, must be computed from the time, when a judgment deputy or against the principal, for the act or omission, is first recovered by agent the aggrieved person; and a subsequent reversal or setting aside of the judgment does not extend the time. [Note 1539.] ARTICLE 30 PRINCIPAL AND SURETY § 224. A surety, including a drawer or indorser, may recover, in an action against his principal; and a trustee may, where the trust estate is insufficient to reimburse him, recover, in an action against the beneficiary whom he represents, his reasonable costs and other expenses, incurred necessarily and in good faith, in the prosecution or defence, by the express or implied consent of the principal or beneficiary, of an action or special proceeding, relating to the demand secured, or to the trust estate, as the case requires. This section does not affect any special agreement relating to those costs and expenses. Note 1540.] Action by surety and trustee § 225. Surety or sureties or the representatives of any surety Discharge of or sureties upon the bond heretofore or hereafter executed, of surety 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 may on notice to the principal named in such bond 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. Such notice of such application may be served on said principal personally within or without the state, § 225 Discharge of surety or, 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. 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. 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. And after the filing of an account as required, or permitted, in this section, the court or judge must upon the petition of the principal or surety or sureties or the representatives of any such surety or sureties, 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. And 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. [Note 1541.] PRISONER, see Prison Law. PROPERTY ARTICLE 31 73 PRIVACY §§ 226-229 Right of § 226. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of privacy any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor. [Note 1542.] privacy § 227. Any person whose name, portrait or picture is used within Action for this state for advertising purposes or for the purposes of trade with- violation of out the written consent first obtained as above provided may main- right of tain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use, and if the defendant shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or declared to be unlawful by the last section, the jury, in its discretion may award exemplary damages. But nothing contained in this [act] article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed. [Note 1543.] ARTICLE 32 PROHIBITION. [General note 1544] § 228. The writ of prohibition is abolished and the relief heretofore "Prohibithus authorized shall be obtained hereafter by action commenced by tion " a summons to appear. In applying the new remedy the provisions abolished of any statute prescribing special limitations or special practice shall and "action" remain in force but the proceeding shall be construed as if it were conducted by action instead of by writ of prohibition. [Note 1545.] ARTICLE 33 see also Personal Property Law; Real Property Law substituted § 229. An action to recover damages for an injury to property, must Action for be commenced within six years after the cause of action has accrued, injury to except in a case where a different period is expressly prescribed. property [in this chapter.] [Note 1546.] §§ 230-231 Detention, inspection, survey, etc., of property § 230. Upon the application of a party to an action or a special proceeding, and upon such terms as to notice or otherwise as may be just, an order may be made for the detention, deposit, preservapreservation, tion, or inspection of any property, being the subject of the action or proceeding, or as to which any question may arise therein; authorizing any person to enter upon any land or into any building in the possession of a party to the action or proceeding to make a survey and authorizing any samples to be taken, or any observation to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence necessary for the trial. [Note 1547.] PUBLIC ACCOMMODATION AND AMUSEMENT § 231. All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages and privileges of any place of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any such place, shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages or privileges thereof, or directly or indirectly publish, circulate, issue, display, post or mail any written or printed communication, notice, or advertisement, to the effect that any of the accommodations, advantages and privileges of any such place shall be refused, withheld from or denied to any person on account of race, creed or color, or that the patronage or custom thereat, of any person belonging to or purporting to be of any particular race, creed or color is unwelcome, objectionable or not acceptable, desired or solicited. The production of any such written or printed communication, notice or advertisement, purporting to relate to any such place and to be made by any person being the owner, lessee, proprietor, superintendent or manager thereof, shall be presumptive evidence in any civil or criminal action that the same was authorized by such person. A place of public accommodation, resort or amusement within the meaning of this article, shall be deemed to include any inn, tavern or hotel, whether conducted for the entertainment of transient guests, or for the accommodation of those seeking health, recreation or rest, any restaurant, eating-house, public conveyance on land or water, bath-house, barber-shop, theatre and music hall. Nothing herein contained shall be construed to prohibit the mailing of a private communication in writing sent in response to a specific written inquiry. [Note 1548.] SEALED INSTRUMENT violation 75 $232. Any person who shall violate any of the provisions of §§ 232-233 the foregoing section, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable Penalty for to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby or by any resident of this state, to whom such person shall assign his cause of action, in any court of competent jurisdiction in the county in which the plaintiff or the defendant shall reside; and shall, also, for every such offense be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dollars, or shall be imprisoned not less than thirty days nor more than ninety days, or both such fine and imprisonment. [Note 1549.] PUBLIC CORPORATION, see General Corporation Law. REAL PROPERTY, see Real Property Law. RECEIVER, see Judiciary Law. RECOVERY OF PURCHASE MONEY, see Real Property Law. REDEMPTION, see Real Property Law. REPLEVIN, see Personal Property Law. RESTITUTION, see Real Property Law. RIGHT OF PRIVACY, see Privacy. RIGHTS AND LIMITATIONS, see Real Property Law. SAMPLE, see Property. ARTICLE 35 SEALED INSTRUMENT sealed in § 233. An action upon a sealed instrument must be commenced Limitation within twenty years after the cause of action has accrued. But where of action on the action is brought for breach of a covenant of seizin, or against incumbrances, the cause of action is, for the purposes of this section only, deemed to have accrued upon an eviction, and not before. [Note 1550.] SEDUCTION, see Personal Injury. SEPARATION, see Domestic Relations Law. strument |