those officers or their predecessors, in their oficial copac ty ; to enforce a liability created, or a duty enjoined, by law, up those officers, or the body represented by them; to recover a penalty or a forfeiture given to those officers or the body represented by them, or to recover damages for an injury to the property or rights of those officers, or the body represented by them; although the cause of action accrued before the commencement of their term of office. § 1927. An action or special proceeding may be maintained, against any of the officers specified in the last section, upon any cause of action, which accrues against them or has accrued against their predecessors, or upon a contract made by their predecessors in their official capacity and within the scope of their authority. 1928. The last two sections do not apply to a case, where it is specially prescribed by law, that an action may be maintained, by or against the body, represented by an officer designated in those sections; but, in such a case, the prosecution or defence of the action, as the case may be, must be conducted by the persons then in office, who represent that body. § 1929. In an action or special proceeding, brought pur suant to section one thousand nine hundred and twenty-six or section one thousand nine hundred and twenty-seven of this act, the officer, by or against whom it is brought, must be described in the summons, or other process by which it is commenced, and in the subsequent proceedings therein, by his individual name, with the addition of his official title. An objection, growing out of an omission to join any officer, who ought to be joined with the others, must be taken by the answer, or, in a special proceeding, before the close of the case, on the part of the defendant: otherwise it is waived. 29 Hun, 44. 5 Civ. Pra 226. 156 N.Y. 136. 2.6. § 1930. In such an action or special proceeding, the court must, in a proper case, substitute a successor in office, in place of a person made a party in his official capacity, who has died or ceased to hold office; but such a successor shall not be substituted as a defendant, without his consent, unless at least fourteen days' notice of the application for the substitution, has been personally served upon him. § 1931. An execution cannot be issued upon a judg- 5 Civ. Pro ment for a sum of money, rendered against an officer in an action or special proceeding, brought by or against him, in his official capacity, pursuant to this article; except where it is rendered against the trustee or trustees of a school district, or the commissioner or commissioners of highways of a town. In either of those cases, an execution may be issued against and be collected out of the property of the officer, and the sum collected must be allowed to him, in the settlement of his official accounts, except as otherwise specially prescribed by law. § 1395 Consol. Act. 121 N.Y.194. § 1395 Con sol. Act. 8 Civ. Pro. 295. 1395 Consol. Act. § 1395 Con. sol. Act. § 1932. 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. § 1933. Such a judgment is conclusive evidence of the liability of each defendant, upon whom the summons was Where personally served, or who appeared in the action. 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 four hundred and fortyfive 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. 1934. 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. § 1935. 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. § 1936. Where a judgment has been taken, as pre- $ 1396 Con scribed in section one thousand nine hundred and thirty- sol. Act. two 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. § 1937. After the recovery of a judgment against joint debtors, as prescribed in section one thousand nine hundred and thirty-two 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. § 1938. 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. 92 N.Y. 581. 121 Id. 277. 1939. The defendant's answer is restricted to de- 3 Civ. Pro. fences or counterclaims, which he might have made in 295. 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. § 1940. 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. § 1941. 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 thereupon, 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. 36 Hun, 290. 3 N. Y. Supp. 503. 123 N.Y.115. 1942. 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 41 N.Y.Supp. debtor a release of the indebtedness, or other instrument 5. exonerating him therefrom. A member of a partnership 19 Misc. 625, 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, 73 Hun, 4. 29 Abb. N.C. (on. 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 eny 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. § 1943. An instrument, specified in the last section, is deemed a satisfaction-piece, for the purpose of discharging, as prescribed in section one thousand two hundred and sixty of this act, the docket of a judgment, recovered upon an indebtedness released or discharged thereby, as far as the judgment 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. § 1944. 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. 1945. In an action brought against one or more persons, engaged, as a joint stock 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 has 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. 1946. Where, for any cause, one or more partners have not been joined as defendants in an action upon a partnership liability, 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. § 1947. In an action brought to dissolve a partnership. or for an accounting between partners, or affecting the con ACTIONS BY THE PEOPLE. 107 tinued prosecution of the busin ss, 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. CHAPTER XVI. IN ACTIONS IN BEHALF OF THE PEOPLE, AND SPECIAL PROCEEDINGS INSTITUTED, 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 recognizance. 4. Certain actions, founded upon the spoliation, or other mis. appropriation 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. |