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2 Civ. Pro. 125.

34 Hun, 112.

Id. 271.

9 Civ. Pro.

257.

Id. 262.

of the clerk, or deliver it, with a like certificate, to the magistrate by whom it was issued; as the case requires.

§ 1896. In an action to recover a penalty or forfeiture, given by a statute, brought by any person, other than the person aggrieved or a public officer, the plaintiff may recover, notwithstanding the recovery of a judgment, for or against the defendant, in an action brought therefor by another person, if he establishes that the former judgment was recovered collusively and fraudulently.

§ 1897. In an action to recover a penalty or forfeiture. given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of the summons, a general reference to the statute must be endorsed upon the copy of the summons so delivered, in the following form, "Accord15 Abb. N. ing to the provisions of," etc.; adding such a description of the statute, as will identify it with convenient certainty, and also specifying the section, if penalties or forfeitures are given, in different sections thereof, for different acts or omissions.

C. 461.

16 Id. 230.

25 N. Y.

State Rep.

28 Id. 37.

907.

1898. Where a statute gives a pecuniary penalty or forfeiture, not exceeding a specified sum, an action may be maintained to recover the sum specified; and the court. jury, or referee, by which or by whom the issues of fact are tried, or, where judgment is taken by default for failure to appear or plead, the damages are ascertained, may award to the plaintiff the whole sum, or such a part thereof, as it or he deems proportionate to the offence.

ARTICLE FOURTH.

CERTAIN ACTIONS TO RECOVER DAMAGES FOR WRONGS. § 1899. Civil and criminal prose

cutions not mergel.

1900. Action for suing, etc., in
name of another. Made
also a misdemeanor.
1901. Treble and other increased
damages to be recov
ered.

1902. Action for causing death
by negligence, etc.

1903. Id.; for whose benefit.
1904. Id.; amount of recovery.
1905. Next of kin defined.
1906. Action for slander of a
woman.

1907. When action for libel can-
not be maintained.
1908. The last section qualifier.

1899. Where the violation of a right admits of a civil and also of a criminal prosecution, the one is not merged in the other.

$1900. If a person, vexatiously or maliciously, in the name of another but without the latter's consent, or in the name of an unknown person, commences or continues, or causes to be commenced or continued, an action or special proceeding, in a court, of record or not of record, or a special proceeding before a judge or a justice of the peace; or takes, or causes to be taken, any proceeding, in the course of an action or special proceeding in such a court, or before such an officer, either before or after judgment or other final determination; an action, to recover damages

therefor, may be maintained against him, by the adverse party to the action or special proceeding; and a like action may be maintained by the person, if any, whose name was thus used. He is also guilty of a misdemeanor, punishable by imprisonment, not exceeding six months.

§ 1901. In an action, brought by the adverse party, as prescribed in the last section, the plaintiff, if he recovers final judgment, is entitled to recover treble damages. In an action, brought by the person whose name was used, as prescribed in the last section, the plaintiff is entitled to recover his actual damages, and two hundred and fifty

dollars in addition thereto.

C. 2 3.
99 N. Y. 258.
110 Id. 504.

1171d. 542.
29 N. Y.

§ 1902. The executor or administrator of a decedent, 12 Abb. N. who has left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not easued. Such an action must be commenced within two years after the decedent's death.

State Rep.

048.

State Rep

§ 1903. The damages recovered in an action, brought 5N. Y. as prescribed in the last section, are exclusively for the benefit of the decedent's husband or wife, and next of kin ; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action, and his commissions upon the residue; which must be allowed by the surrogate, upon notice, given in such a manner and to such persons, as the surrogate deems proper.

§ 1904. The damages awarded to the plaintiff may be such a sum, not exceeding five thousand dollars, as the jury, upon a writ of inquiry, or upon a trial, or, where issues of fact are tried without a jury, the court or the referee, deems to be a fair and just compensation for the pecuniary injuries, resulting, from the decedent's death, to the person or persons, for whose benefit the action is brought. When final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded, interest thereupon from the decedent's death, and include it in the judgment. The inquisition, verdict, report, or decision, may specify the day from which interest is to be computed; if it omits so to do, the day may be determined by the clerk, upon affidavits.

§ 1905. The term, "next of kin," as used in the fore going sections, has the meaning specified in section one thousand eight hundred and seventy of this act.

§ 1906. In an action of slander, brought by a woman, for words imputing unchastity to her, it is not necessary to

4.6.

14 Abb. N. 496.

C.

110 N. Y.504. 117 Id. 542.

45 Hun, 120.

24 N. Y.

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.

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§ 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, State Rep. an instrument executed, or an act done, as security for a usurious loan or forbearance, can be thus transferred,

957.

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 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.

§ 1913. Except in a case where it is otherwise specially 29 Han, 251. prescribed in this act, an action upon a judgment for a sum 30 Id. 163. of money, rendered in a court of record of the State, cannot be maintained, between the original parties to the judg ment, unless, either

1. 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

2. 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.

21 Abb. N. C. 478.

52 Id. 527.

37 Hun, 533. 129 N. Y.551.

§ 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,

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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, 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
associations of seven or
more persons.

1920. Proceedings in case of
death, etc.

1921. Effect of judgment; exe-
cution thereupon.

§ 1922. Subsequent action against 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

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