15 Hun, 120. 9 Misc. 71. 80 Hun, 391. 24 N. Y. State Rep. 957. allege or prove special damages. If the plaintiff is married, the damages recovered are her separate property. § 1907. An action, civil or criminal, cannot be maintained against a reporter, editor, publisher, or proprietor of a newspaper, for the publication therein of a fair and true report of any judicial, legislative, or other public and official proceedings, without proving actual malice in making the report. § 1908. The last section does not apply to a libel, contained in the heading of the report; or in any other matter, added by any person concerned in the publication; or in the report of any thing said or done, at the time and place of the public and official proceedings, which was not a part thereof. ARTICLE FIFTH. MISCELLANEOUS ACTIONS AND RIGHTS OF ACTION. 1909. When transferee of claim 1911. Id.; cause of action for 1912. Judgment; when assign able. § 1913. Action upon judgment 1914. Ancillary action for dis- 1918. The last section qualified. 1909. Where a claim or demand can be transferred, the transfer thereof passes an interest, which the transferee may enforce by an action or special proceeding, or interpose as a defence or counterclaim, in his own name, as the transferor might have done; subject to any defence or counterclaim, existing against the transferor, before notice of the transfer, or against the transferee. But this section does not apply, where the rights or liabilities of a party to a claim or demand, which is transferred, are regulated by special provision of law; nor does it vary the rights or liabilities of a party to a negotiable instrument, which is transferred. § 1910. Any claim or demand can be transferred, except in one of the following cases: 1. Where it is to recover damages for a personal injury, or for a breach of promise to marry. 2. Where it is founded upon a grant, which is made void by a statute of the State; or upon a claim to or interest in real property, a grant of which, by the transferor, would be void by such a statute. 3. Where a transfer thereof is expressly forbidden by a statute of the State, or of the United States, or would contravene public policy. 1911. A cause of action to cancel, or otherwise affect, an instrument executed, or an act done, as security for a usurious loan or forbearance, can be thus transferred where the instrument or act creates a specific charge upon property, which is also transferred in disaffirmance thereof, and not otherwise; but, in that case, the transferee does not succeed to the right, conferred by statute upon the borrower to procure relief, without paying, or offering to pay, any part of the sum or thing loaned. 1912. A judgment for a sum of money, or directing the 72 Hun, 565 payment of a sum of money, recovered upon any cause of action, may be transferred; but if it is vacated or reversed, the transfer thereof does not transfer the cause of action, unless the latter was transferable before the judgment was recovered. 67 State Rep. § 1913. [Am'd 1896.] Except in a case where it is other 29 Hun, 251. wise specially prescribed in this act, an action upon a judg- 30 Id. 163. ment for a sum of money, rendered in a court of record of 582. the state, can not be maintained between the original parties 17 App. Div. to the judgment, unless, either: 1. [New, added 1896, to take effect September 1, 1896.] Ten years have elapsed since the docketing of such judgment; or, 2. It was rendered against the defendant by default, for want of an appearance or pleading, and the summons was served upon him otherwise than personally; or, 3. The court in which the action is brought has previously made an order granting leave to bring it. Notice of the application for such an order must be given to the adverse party, or the person proposed to be made the adverse party, personally, unless it satisfactorily appears to the court that personal notice can not be given with due diligence, in which case notice may be given in such a manner as the court directs. § 1914. An action cannot be maintained, to obtain a discovery under oath, in aid of the prosecution or defence of another action. 1915. A bond in a penal sum, executed within or without the State, and containing a condition to the effect, that it is to be void, upon performance of any act, has the same effect, for the purpose of maintaining an action or special proceeding, or two or more successive actions or special proceedings thereupon, as if it contained a covenant to pay the sum, or to perform the act, specified in the condition thereof. But the damages to be recovered for a breach, or successive breaches, of the condition, cannot, in the aggregate, exceed the penal sum, except where the condition is for the payment of money; in which case, they cannot exceed the penal sum, with interest thereupon, from the time when the defendant made default in the performance of the condition. 246. 30 Id. 238. 33 Id. 158. 21 Abb. N. C. 478. 52 Id. 527. 37 Hun, 533. 122 N.Y.551. 13 Misc. 70. § 1916. A surety, including a drawer or indorser, may 51 Hun, 30. recover, in an action against his principal; and an executor, administrator, or other 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, 136 N. Y. 454. 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. § 1917. Where it appears, upon the trial of an action, 21 Misc. 439. that a negotiable promissory note or bill of exchange, upon which the action, or a counterclaim interposed in the action, is founded, was lost, while it belonged to the party claiming the amount due thereupon, he may prove the contents thereof, by parol or other secondary evidence, and may recover or set off the amount due thereupon, as if it was produced. But for that purpose, he must give to the adverse party a written undertaking, in a sum fixed by the judge or the referee, not less than twice the amount of the note or bill, with at least two sureties, approved by the judge or the referee, to the effect, that he will indemnify the adverse party, his heirs and personal representatives, against any claim by any other person, on account of the note or bill, and against all costs and expenses, by reason of such a claim. § 1918. But where an action is prosecuted or defended by the people of the State, or by a public officer in their behalf, the people, or the public officer, may prove the contents of a lost note or bill of exchange, by parol or other secondary evidence, and may recover or set off the amount due thereupon without giving any security to the adverse party. TITLE V. Other actions by or against particular parties. ARTICLE 1. Action by or against an unincorporated association. 2. Actions by or against certain county, town, and munici pal officers. 3. Actions, and rights of action, against and between joint debtors. ARTICLE FIRST. ACTION BY OR AGAINST AN UNINCORPORATED ASSOCIATION. 1919. Actions, etc., by or against § 1922. Subsequent action against associations of seven or more persons. 1920. Proceedings in case of members. 1923. This article permissive effect upon statute of limitations. 1924. When objection of misnomer, etc., of parties not available. 1919. An action or special proceeding may be maintained, by the president or treasurer of an unincorporated association, consisting of seven or more persons, to recover any property, or upon any cause of action, for or upon which all the associates may maintain such an action or 166. C. 88. 133 Id. 89. special proceeding, by reason of their interest or ownership 8 Civ. Pro. therein, either jointly or in common. An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association, within the meaning of this section. § 1920. The death or legal incapacity of a member of the association does not affect an action or special proceeding. brought as prescribed in the last section. If the officer, by or against whom it is brought, dies, is removed, resigns, or becomes otherwise incapacitated, during the pendency thereof, the court must make an order, directing it to be continued by or against his successor in office, or any other officer, by or against whom it might have been originally commenced. 334. § 1921. Effect of judgment; execution thereupon. 13 App. Div. Am'd 1898, amendment to take effect October 1, 1898.] In such an 222. action, the officer against whom it is brought cannot be arrested; and a judgment against him does not authorize an execution to be issued against his property, or his person; nor does the docketing thereof bind his real property, or chattels real. Where such a judgment is for a sum of money, an execution issued thereupon must require the sheriff to satisfy the same, out of any personal or real property belonging to the association, or owned, jointly or in common, by all the members thereof. 29 Abb. N.C. 1922. Where an action has been brought against an officer, or a counterclaim has been made, in an action brought 334. by an officer, as prescribed in the last three sections, another action, for the same cause, shall not be brought against the members of the association, or any of them, until after final judgment in the first action, and the return, wholly or partly unsatisfied or unexecuted, of an execution issued thereupon. After such a return, the party in whose favor the execution was issued, may maintain an action, as follows: 1. Where he was the plaintiff, or a defendant recovering upon a counterclaim, he may maintain an action against the members of the association, or, in a proper case, against any of them, as if the first action had not been brought, or the counterclaim had not been made, as the case requires; and he may recover therein, as part of his damages, the costs of the first action, or so much thereof, as the sum, collected by virtue of the execution, was insufficient to satisfy. 2. Where he was a defendant, and the case is not within subdivision first of this section, he may maintain an action, 29 Abb. N. C. 334. 27 Hun, 390. 35 Hun. 1. 125 N. Y. 280. 126 Id. 342. 130 Id. 394. to recover the sum remaining uncollected, against the persons who composed the association, when the action against him was commenced. or the survivors of them. But this section does not affect the right of the person, in whose favor the judgment in the first action was rendered, to enforce a bond or undertaking, given in the course of the proceedings therein. § 1923. This article does not prevent an action from being brought by or against all the members of an association, except as prescribed in the last section. Where an action is brought against the members of the association, as prescribed in subdivision first of the last section the time between the commencement of the action by or against the officer, and the return of the first execution issued upon the final judgment rendered therein, is not a part of the time limited by law, for the commencement of the second action. § 1924. Section one thousand eight hundred and thirteen of this act applies to an action brought, as prescribed in the last section out one, against the members of any association, which keeps a book for the entry of changes in the membership of the association, or the ownership of its property and to each book so kept. 1925. [Am'd 1892.] An action to obtain a judgment, 13 Daly, 16. preventing waste of, or injury to, the estate, funds or other property of a county, town, city or incorporated village of the State, may be maintained against any officer thereof, or any agent, commissioner, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. This section does not affect any right of action in favor of a county, city, town or incorporated village, or any public officer. 74 Hun, 345. § 1926. Actions by certain specified officers. [Am'd 1897, amendment to take effect September 1, 1897.-An action or special proceeding may be maintained, by the trustee or trustees of a school district; the overseer or overseers of the poor of a village, or city; the county superintendent or superintendents of the poor; or the supervisors of a county, upon a contract, lawfully made with |