ownership, or cam * T. filer MARE" I

in common. or her

severally. A Jarne..!)

§ 1920. The teath or em nezsers of a member of the association toes her ufu in weten ir sena trasi ing, brought set n

officer, by or agains vum 1 ir R. resigns, or becomes lie

necacskauti. Mug He pendency thereŤ die zur mugs nude in ter preveng it to be continuet i or uus 15 suser in after, or any other oficer i was vum infi 1874 Yeen

originally eommenest

§ 1921. In sich an iron, de niver arist whem t is brought cannor e amost and a pairment i rizst 111 does not authorize 11 exenda z le start igius Is property, or as pers.n nor does the boasting fervef bind his real property or chamels real. Where soon. § 120gment is for a son of noter in ervention issued thereupca must require the them to wanddy the same, our of any personal property decorar W the associative, et ewzed, jointly or in common, og all the members thereof, omitting any direction respecting resi property.

§ 1922. Where an action has been brought against an officer, or a counterclaim has been made, in an action brought by an officer as prescribed in the last three sections, another action, for the same canse, 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 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,

15938

27 Hun, 390. 13 Daly, 16. 35 Hun, 1. 125 N. Y. 280.

126 Id. 342. 130 Id. 394.

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.

1923. 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 the commencement of the second action.

§ 1924. Section one thousand eight hundred and thirteen 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.

ARTICLE SECOND.

ACTIONS BY OR AGAINST CERTAIN COUNTY, TOWN, AND
MUNICIPAL OFFICERS.

§ 1925. [Am'd 1892.] An action to obtain a judgment, preventing waste of, or injury to, the estate, funds or other property of a county, town, city or incorporated 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 section does not affect any right of action in favor of a county, city, town or incorporated village, or any public officer.

§ 1926. An action or special proceeding may be maintained, by the trustee or trustees of a school district; the commissioner or commissioners of highways of a town; 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 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.

§ 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 pursuant 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 C.v. Pro.

226.

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 Cv. P:0. 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,

114 N.Y.317.

§ 1395 Consol. Act.

121 N.Y.194.

§ 1395 Consol. Act.

3 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.

upon

1935. An execution against the person, issued 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 hir, 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.

12! Id. 277.

§ 1939. The defendant's answer is restricted to de- 8 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.

§ 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 debtor a release of the indebtedness, or other instrument exonerating him therefrom. A member of a partnership 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,

36 Hun, 290. 3 N. Y.

Supp. 503.

123 N.Y.115.