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capacity; to enforce a liability created, or a duty enjoined, by law, upon 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.
2 R. S. 473, & 92 (2 Edm. 494). Palmer v. Fort Plain and Cooperstown Plank R. Co., 11 N. Y. 376, 390, and cases therein cited ; see, also, Hillv. Board of Supervisors of Livingston Co., 12 id. 52; Hagadorn v. Raux, 72 id. 583.
$ 1927, Actions against such officers.-- 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. Id., & 98.
§ 1928. The last two sections qualified.-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 designa. ted in those sections; but, in such a case, the prosecu. tion or defence of the action, as the case may be, must be conducted by the persons then in office, who represent that body. Id., & 94.
8 1929. Designation of such officers in the summons, etc.-In an action or special proceeding, brought pur. suant to section 1926 or section 1927 of this act, the officer, by or against whom it is brought, must be de. scribed 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 liis 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 proceed. ing, before the close of the case, on the part of the de. fendant; otherwise it is waived.
Id., 22 93, 96 and 99, amended and consolidated. Supervisors of Galway 1. Stimson, 4 Hill, 136; Commissioners of Cortlandtville v. Peck, 6 id. 215; Agent of State Prison v. Rikeman, 1 Den. 279; Hebron v. Ely, Lalor, 279; Pomeroy v. Weils, 8 Paige, 106; 32 548 and 549, ante.
§ 1930. Successor may be substituted. 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.
Id., 8% 100 and 101, amended. People ex rel. Van Valkenburgh v. Sage, 3 How. Pr. 56; Hagadorn v. Raux, 72 N. Y. 583; see Manchester v. Her. rington, 10 id. 164.
8 1931, When execution against officer not to issue. -An execution cannot be issued upon a judgment 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 prop. erty 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.
Id., 88 107 and 108, amended. Avery v. Slack, 19 Wend. 50 ; see People ex rel. v. Town Auditors, 75 N. Y. 316.
ACTIONS AND RIGHTS OF ACTION AGAINST AND BETWER
SEC. 1932. Judgment against defendants Jointly indebted, when all an
defendants not personally summoned, eta
§ 1932. Judgment against defendants jointly indebted, when all are not served.-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 defend. ants, upon whom it is served, unless the court other. wise directs; and, if he recovers tinal judgment, it may be taken against all the defendants thus jointly in. debted.
Code of Proc., 136, subd. 1; see, also, & 1935, Orr v. McEwan, 16 Hun, 625; see, also, Freeman r: Barrow clitle, 44 N Y. Super. Ct. (. & S.) 313; Nat. Bank of Ky. 1. Wright, 5 Rob. 604; Stalinard v. Mattice, 7 How. 43; Lahey v. Kingon, 13 Abb. 192; Niles v. Battershall, 2 Rob, 116; Speyers v. Fisk, 3 Hun, 706 ; Devine v. Duncan, 52 Ilow. Pr. 416; Parker v. Jackson, 16 Barb. 33 ; see % 1278, ante; Masten v. Blackwell, 8 Hun, 313.
$ 1933. Effect of such judgment.--Such a judgment is conclusive evidence of the liability of each defendant, upon whom the summons was personally served, or who appeared in the action. Where 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 defend. ant, specified in section 445 of this act. As against such a defendant, who is allowed to defend after judgment, or as against a defendant pot 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.
2 R. S. 377, X 2 (2 Edm. 391). Nat. Bank v. Spencer, 19 Hun, 569; & 1278, ante; Bacon v. Comstock, 11 How. 197 ; Catlin v. Billings, 13 How. Pr. 511; 8. C., 4 Abb. Pr. 248; see Oakley v. Aspinwall, 4 N. Y. 514.
$ 1934. Execution; indorsement thereupon.-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 en. forcement of the execution, as prescribed in the next section. Id., /3.
$ 1936. How collected. An execution against the porson, issued upon such a judgment, shall not be en.
forced against the person of a defendant, whose name is so indorsed thereupon. An execution against prop. erty, 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. Id., 84. Merchants Ex. Nat. Bank v. Waitzfelder, 14 Hun, 47.
§ 1936. Judgment, how docketed; effect of docketing.-Where a judgment has been taken, as prescribed in section 1932 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 sum. moned;" 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. New.
$ 1937. Action to charge defendants not personally summoned. After the recovery of a judgment against joint debtors, as prescribed in section 1932 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 judg. inent, charging his or their property with the sum re. maining unpaid upon the original judgment.
Code of Proc., 8375. Harper v. Bangs, 18 IIow. 457; Dean v. Eldridge, 29 id. 218; Ticknor v. Kennedy, 4 Abb. N. S. 417; Prince v. Cujas, 7 Rob. 76; John v. Smith, 14 Abb. 423; Fairchild v. Durard, 8 id. 305; Oakley v. Aspinwall, 4 N. Y. 514 ; Harper v. Bangs, 18 liow. Pr. 457 ; see Lane v. Salter, 51 N. Y. 1; Dean v. Eldridge, 29 How. Pr. 218; Townsend v. Newell, 14 Abb. Pr. 340 ; Mervin v. Kumbel, 23 Wend. 293; Fine v. Righter, 3 Abb. Pr. N. S. 385; Maples v. Mackey, 9 N. Y. Dig. (s. c.), 493, decided Sept., 1880.
$ 1938. Complaint in such action.-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,
Code of Proc., 8378, amended.
$ 1939. Answer.-The defendant's answer is ree stricted to defences or counterclaims, which he migbt have made in 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.
Code of Proc., 379, amended; see 32 415 and 938, ante. Ogden v. Watí, 19 Hun, 184.
§ 1940. Provisional remedies. 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. New,
$ 1941. Judgment. 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 un. paid, 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. Code of Proc., 8380, amended.
$ 1942. Joint debtors may compound separately. Mode and effect.-A joint debtor may make a separate composition with bis creditor, as prescribed in this section. Such a composition discharges the debtor making
and him only. The creditor must execute to the coin pounding debtor a release of the indebtedness, or other instrument exonerating him therefrom. A mem. ber of a partnership cannot thus compound for a partnership debt, until the partnership has been dissolved by mutual consent or otherwise. In that case the in. strument must release or exonerate him, from all lia. bility, 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 any other joint debtor, or his right to take any proceed. ing against the latter; unless an intent to release or ex. onerate him, appears affirmatively upon the face thereof. L. 1838, ch. 237, 88 1 and 5 and part of $ 2, amended: L. 1846, ch. 348 (4