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CHAP. IX.

Art ix. * newspaper printed in the county wherein the principal place of

business of the corporation was located.

(ART. 5.) - PROVISIONS APPLICABLE TO TWO OR MORE OF THE ACTIONS

SPECIFIED IN THIS TITLE.
SEC. 1804. Certain corporations excepted from certain articles of this title.

1805 Officers and agents may be compelled to testify.
1806 Injunction staying actions by creditors.
1807. Creditors may be brought in.
1808. When attorney general must bring action.
1809. Requisites of injunction against corporations in certain cases.
1810. Id.; of order appointing receiver in certain cases.
1811. Id.; of judicial suspension or removal of an officer.
1812. Application of the last three sections.

1813. In action against stockholders, misnomer, etc., not available, Certain § 1804. Articles second, third and fourth of this title do not aptions ex- ply to an incorporated library society; to a religious corporation; cepted from cer

to a select school or academy, incorporated by the regents of the tain articles of this university or by an act of the legislature; or to a municipal or title.

other political corporation, created by the constitution or by or

under the laws of the State. Officers

$ 1805. In an action brought as prescribed in article second, and agents third or fourth of this title a stockholder, officer, alienee or agent compelled of a corporation is not excused from answering a question relating

to the management of the corporation, or the transfer or disposition of its property, on the ground that his answer may expose the corporation to a forfeiture of any of its corporate rights, or will tend to convict him of a criminal offense, or to subject him to a penalty or forfeiture. But his testimony shall not be used as evi

dence against him in a criminal action or special proceeding. Injunction $ 1806. In such an action the court may, in its discretion, on staying actions by the application of either party, at any stage of the action, before or creditors.

after final judgment, and, with or without security, grant an injunction order restraining the creditors of the corporation from bringing actions against the defendants, or any of them, for the recovery of a sum of money, or from taking any further proceedings in such actions theretofore commenced. Such an injunction has the same effect, and, except as otherwise expressly prescribed in this section, is subject to the same provisions of law, as if each creditor upon whom it is served was named therein, and was a party to

the action in which it is granted. Creditors § 1807. In such an action the court may, at any stage of the acbrought in. tion, before or after final judgment, make an order requiring all the

creditors of the corporation to exhibit and prove their claims, and

CHAP. IX.

attorney

thereby make themselves parties to the action, in such a manner, Art. IX. and within such a reasonable time, not less than six months from the first publication of notice of the order, as the court directs; and that the creditors who make default in so doing shall be precluded from all benefit of the judgment and from any distribution which may be made thereunder. Notice of the order must be given hy publication in such newspapers and for such a length of time as the court directs.

Matter of Harmony Fire Ins. Co., 45 N. Y. 310; Rinn v. Astor Fire Ins. Co., 59 id. 143.

$ 1808. Where the attorney-general has good reason to believe When that an action can be maintained in behalf of the people of

general the State, as prescribed in article second, third or fourth of this must bring title, except section 1797 of this act, he must bring an action accordingly, or apply to a competent court for leave to bring an action, as the case requires; if, in his opinion, the public interests require that an action should be brought. In a case where the action can be brought only by the attorney-general in behalf of the people, if a creditor, stockholder, director or trustee of the corporation applies to the attorney-general for that purpose, and furnishes the security required by law, the attorney-general must bring the action, or apply for leave to bring it, if he has good reason to believe that it can be maintained. Where such an application is made, section 1986 of this act applies thereto, and to the action brought in pursuance thereof. People v. Bruff, 6. How. 4; S. C., 9 Abb. N. C. 156. § 1809. An injunction order suspending the general and ordi- Requisites

of injuncnary business of a corporation, or of a joint-stock association, con

tion against sisting of seven or more persons, or suspending from office or re- tions in straining from the performance of his duties a trustee, director or cases. other officer thereof can be granted only by the court, upon notice of the application therefor to the proper officer of the corporation or association, or to the trustee, director or other officer enjoined. If such an injunction order is made, otherwise than is prescribed in this section, it is void. $ 1810. A receiver of the property of a corporation can be id. ; of

order appcinted only by the court, and in one of the following cases: appointing

1. An action, brought as prescribed in article second, third, or in certain fourth of this title.

2. An action brought for the foreclosure of a mortgage upon the property, over which the receiver is appointed, where the

corpora

a receiver

cases,

CHAP. IX.

Art. ix. mortgage debt, or the interest thereupon has remained unpaid, at

least thirty days after it was payable, and after payment thereof was duly demanded of the proper officer of the corporation; and where either the income of the property is specifically mortgaged, or the property itself is probably insufficient to pay the mort

gage debt.

or removal

of an officer.

3. An action brought by the attorney-general, or by a stockholder, to preserve the assets of a corporation, having no officer empowered to hold the same.

4. A special proceeding for the voluntary dissolution of a corporation.

Where the receiver is appointed in an action, otherwise than by or pursuant to a final judgment, notice of the application for his appointment must be given to the proper officer of the corporation.

Attriel v. Rockaway Beach Improvement Co., 25 Hun, 514; People v. Bruff, 60 How. 4; Burlingame v. Parce, 12 Hun, 144; Smith v. Tiffany, 13

id. 671 ; Supreme Court Rules, 87 and 88. Id.; of $ 1811. A trustee, director, or other officer of a corporation judicial suspension shall not be suspended or removed from office, by a court or

judge, otherwise than by the final judgment of a competent court, in an action brought by the attorney-general, as prescribed in sec

tion 1781 of this act. Application § 1812. The last three sections apply to an action or a special

proceeding, against á corporation, or joint-stock association created by or under the laws of the State, or a trustee, director, or other officer thereof; or against a corporation, or joint-stock association created by or under the laws of another State, government, or country, or a trustee, director, or other officer thereof, where the corporation or association does business within the State, or has, within the State, a business agency or a fiscal agency, or an agency for the transfer of its stock.

$ 1813. Where an action, authorized by a law of the State, is against stockhold- brought against one or more persons, as stockholders of a corpo

ration or joint-stock association, an objection to any of the proavailable. ceedings cannot be taken, by a person properly made a defendant

in the action, on the ground that the plaintiff has joined with him, as a defendant in the action, a person, whose name appears on the stock-books of the corporation or association, as a stockholder thereof, by the name so appearing; but who is misnamed, or dead, or is not liable for any cause. In such a case, the court may, at

of the last three sections,

In action

nomer, etc., not

CHAP. IX.

Art. X.

any time before final judgment, upon motion of either party, amend the pleadings and other papers, without prejudice to the previous proceedings, by substituting the true name of the person intended, or by striking out the name of the person who is dead, or not liable, and, in a proper case, inserting the name of his representative or successor.

(See Code of Civil Procedure, $ 1924, po t, p. 269.)

ARTICLE X - ACTIONS BY OR AGAINST AN UNINCORPO

RATED ASSOCIATION. 1880, Code of Civil Procedure, Part II, Chap. XV, Title V, Art 1

Action by or against an Unincorporated Association.
SE 1919. Actions, etc., by or against associations of seven or more persons.

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.

associ

$ 1919. An action or special proceeding may be maintained, by Actions, the president or treasurer of an unincorporated association, con-against

etc,, by or sisting of seven or more persons, to recover any property, or upon ations of any cause of action, for or upon which all the associates may or more maintain such an action or special proceeding, by reason of their

persons. 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 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.

Wescott v. Fargo, 61 N. Y. 542; Ebbenhousen v. Worth Club, 4 Abb. N. C., 300, note ; Shaw v. Cock, 12 Hun, 173; McGuffin v. Dinsmore, 4 Abb. N. C. 241 ; National Bank of Schuylerville v. Vanderwerker, 74 N. Y. 234 ; Flagg v. Swift, 25 Hun, 623 ; Poultney v. Bachman, 62 How.467; S. C., 10 Abb. N. C. 252.

§ 1920. The death or legal incapacity of a member of the asso- Proceedciation does not affect an action or special proceeding, brought as in sein kcase prescribed in the last section. If the officer, by or against whom etc. 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

CHAP. IX.

execution

action

Art. x. office, or any other officer, by or against whom it might have been

originally commenced, Effect of $ 1921. In such an action, the officer against whom it is brought judgment;

cannot be arrested; and a judgment against him does not authorthereupon,

ize 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 property belonging to the association, or owned, jointly, or in common, by all the members thereof, omitting any direction respecting real property.

Morrison v. Weed, 12 Hun, 491. Subsequent § 1922. Where an action has been brought against an officer, or against a counter-claim has been made, in an action brought by an officer, members.

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 counter-claim 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. This article

§ 1923. This article does not prevent an action from being permissive ; effect upon brought by or against all the members of an association, except limitations,

as prescribed in the last section. Where an action is brought

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