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dition is for the payment of money ; in which case, they cannot exceed the penal sum, with interest there. upon, from the time when the defendant made default in the performance of the condition.
New. See 2 R. S. 353, 82 12 and 13 (2 Edm. 364); also 2 R. S. 378, 379 (2 Edm. 392, 391). Lyon v. Clark, 8 N. Y. 148; Beers », Shannon, 73 id.
$ 1916. Action by surety or trustee to recover costs, etc.-A surety, including a drawer or indorser, may 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 necessar. ily 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. L. 1858, ch, 314, $3 (4 Edm. 483); 15 Hun, 561.
$ 1917. Action upon lost negotiable paper.- 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 claim. ing the amount due thereupon, he may prove the con. tents 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 sure. ties, 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.
2 R. S. 406. 8275 and 76 (2 Edm, 423). Livingston v. Rogers, 2 Johns. Cas. 488 ; Blade v. Nolan, 12 Wend. 173; Rowley v. Ball, 3 Cow. 303; Frank v. Wessels, 64 N. Y. 155; Jacks v. Darrin, 3 E. D. Smith, 548, 557; Des Arts v. Leggett, 16 N. Y. 582; Scott v. Meeker, 20 Hun, 163; Des Arts v. Leggett, 5 Duer, 156 ; Wright v. Wright, 54 N. Y. 437 : Rowley v. Ball, 3 Cow.303; Pintard v. Tackington, 10 Johns. 101; Howe Sewing Machine Co. v. Avery, 16 Hun, 555 ; Rogers 1. Chicago & N. Western R. R. Co., 6 Abb. N. C. 253; Butier v. Glen Cove Starch Co., 18 llull, 47.
$ 1918. The last section qualified.—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 duo thereupon, without giving any security to the adverse party.
See L. 1853, ch. 85 (3 R. S., 5th ed., 4 Edm. 645),
Other actions by or against particular parties.
ARTICLE 1. Action by or against an unincorporated association.
2. Action by or against certain county, town, and municipal
officers. 3. Actions, and rights of action, against and between loint
ACTION BY OR AGAINST AN UNINCORPORATED ASSOCIA.
SEC. 1919. Actions, etc., by or against associations of seven or more per
sons. 1920. Proceedings in case of death, etc. 1921. Effect of judgment; execution 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. Actions, etc., by or against associations of seven or more persons.* An action or special proceed. ing 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 special proceeding, by reason of their interest or ownership 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
* See ante, $ 448.
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.
L. 1849, ch. 258, ? 1 (R. S., 5th ed., 777 ; 4 Edm. 650); L. 1851, ch. 455; 3 R. S., 5th ed., 775 (i tim. 632). Westcott v. Fargo 61 N. Y. 542; see Austin v. Searing, 161, 112: Tibbitts . Blood, 21 Barb. 650 ; De Witt v. Chandler, 11 Abh, Pr. 4:9; Corning u. Greene, 23 Barb. 33 ; s. c., 26 N. Y. 472n; Ebbinghousen. Worth Club, 4 Abb. N. C. 300, note; Shaw v. Cock, 1211m, 173; McGuitin 2. Dinsmore, 4 Abb. N. C. 241; Nat. Bank of Schuylerviller. Tan lerwerker, 74 N. Y. 231; see Cross v. Jackson, 5 Hill, 478; Schmidt v. Gintier, 5 Daly, 452.
§ 1920. Proceedings in case of death, etc. 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. Id., 2.
$ 1921. Effect of judgment; execution thereupon.In such an action, the officer against whom it is brought cannot be arrested ; and a judgment against him does not authorize an executivn to be issued against his property, or liis 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 property belonging to the association, or owned, jointly or in common, by all the members thereof, omitting any direction respecting real property. Id., see 82 3 and 1. Bank of Schuylerville v. Vanderwerker, 74 N. Y. 234; Morrissey v. Weed, 12 Hun, 491.
$ 1922. Subsequent action against members. Where an action has been brought against an officer, or a coun. terclaim has been made, in an action brought 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 execu. tion issued thereupon. After such a return,
party in whose favor the execution was issued, may maintain an action, as follows:
1. Where he was the plaintiff, or a defendant recover. ing 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, 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.
Part of id., 84, amended; L. 1853, ch. 153. See Whitehead v. Allen, 28 Barb. 661 and 8 Abb. Pr. N. S. 164, note; B. C., 3 Keyes, 562; see, also, Kingsland v. Braested, 2 Lans. 17; Robbins v. Wells, i Rob. 666; 8. C.. 26 How. Pr. 15; 18 Abb. Pr. 191.
$ 1923. This article permissive; effect upon statute of limitations. 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 tho commencement of the second action. New. See 8406, ante.
§ 1924. When objection of misnomer, etc., of parties not available.-Section 1813 of this act applies to an
action brought, as prescribed in the last section but 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. New. See L. 1869, ch. 157, % 2 (7 Edm. 426); also 32 1813, anté, and 1945,
ACTIONS BY OR AGAINST CERTAIN COUNTY, TOWN, AND
SEC. 1925. Action by a tax payer against a public officer.
1926. Actions by certain county, town, and municipal officers.
1925. (Amended, 1892.] Action by a tax payer against a public officer. - An action to obtain a judg. ment, preventing waste of, or injury to, the estate, funds, or other property of a county, town, city or incor. porated 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 sec. tion does not affect any right of action in favor of a county, city, town, or incorporated village, or any public officer. [In effect May 12, 1892.]
L. 1872, ch. 161, 31 (9 Elm, 339). Ayers v. Lawrence, 59 N. Y. 192; Lutes v. Briggs, 61 il. 404; Hurlburt v. Banks, 52 How. Pr. 196; 8. C., i Abb. N. C. 457; Jaun 7, Board of Education, 53 How. Pr. 289; Kil. bourn ', St. John, 59 N. Y. 2: 5. C., 7 Lans, 332; Newton v. Keich, 9 Hun, 355 ; Congregation Shaari Tephila v. New York, 53 Ilow. Pr. 213.
$ 1925. Actions by certain county, town, and munj. cipal officers.--An action or special proceeding may be maintained, by the trustee or trustees of a school district; the cominissioner or coumissioners of highways of a tuwn; the overseer or overseers of the poor of a town, village, or city; the supervisor of a town; the county superintendent or superintendents of the poor; or the supervisors of a county, upon a contract, lawfully made with those officers or their predecessors, in their official