PART II. service of § 1835. The summons in an action, brought as prescribed in Id.; the last section, can be served only by an officer, authorized by law summons. to collect an execution, issued out of the same court. The sum mons, when issued, cannot be countermanded by the plaintiff, before the service thereof; and, immediately after it has been served, the officer, who served it, must file it, with his certificate of service, in the office of the clerk, or deliver it, with a like certificate, to the magistrate by whom it was issued, as the case requires. [Id., the remainder of § 6, completely remodelled, so as to accomplish the object for which it was apparently enacted. The changes in the procedure, effected since the R. S., have substantially rendered nugatory this very salutary enactment, because, if it has not been superseded, the general proviso contained in Co. Proc., § 471, raised so grave a question upon that subject, that it is of little practical utility. The provision relating to commencing the action, by placing the process in the hands of an officer, is inconsistent with SS 416 and 2876, and appears to be unnecessary and objectionable, as facilitating collusion. As respects the effect of so doing upon the statute of limitations, §§ 398, 399, and 400, ante, cover the whole ground.] § 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. [Id., § 14, amended as required by the changes in the procedure. The word, "collusively ", has been substituted for "by covin", and the section restricted to a case, where the plaintiff in the former action was another person. This was doubtless the meaning of the original statute, but it was so drawn as, apparently, to include also a former action by the same plaintiff. The section is not to be found in the report of the revisers; it is doubtless suggested by a provision in 1 R. L., 101, § 7.] Id.; when by a col not barred lusive recovery. ment upo §1897. In an action to recover a penalty or forfeiture, given Indorseby a statute, if a copy of the complaint is not delivered to the summons. defendant with a copy of the summons, a general reference to the statute must be indorsed upon the copy of the summons so delivered, in the following form, "According 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 JUSTICE'S MANUAL forfeitures are given, in different sections thereof, for different acts or omissions. When part of a penalty may be recovered. [Id., § 7, amended so as to adapt it to the modern procedure; also by adding the words, "if a copy of the complaint is not delivered to the defendant with a copy of the summons". When the R. S. were enacted, there was nothing but the indorsement on the process to show for what the action was brought, until the declaration was filed; but now that the complaint may accompany the summons, it is evident that the section should be restricted to cases, where the summons alone is served. See Cox v. N. Y. C. and H. R. R. R. Co., 61 Barb., 615, which construes the original provision in accordance with this amendment.] § 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 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. [Id., § 15, amended in like manner; but this section includes also a penalty for an omission as well as an act of commission, with respect to which the construction of the original statute is not clear.] Civil and criminal prosecutions not merged. Action for name of another. Made also a misde meanor. ARTICLE FOURTH. CERTAIN ACTIONS TO RECOVER DAMAGES FOR WRONGS. § 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. [Co. Proc., § 7.] § 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 PART II any, whose name was thus used. He is also guilty of a misdemeanor, punishable by imprisonment, not exceeding six months. [2 R. S., 550, ch. 8, tit. 17, § 1 (3 R. S., 5th ed., 865; 2 Edm., 571), omitting the provision regulating the amount of damages, which is in the next section. This section has been remodelled, in conformity with the existing procedure, and the syntax of the other parts of this Code; but without any substantial change, except that its provisions have been made broad enough to give a remedy, in a proper case, to a plaintiff, who has been aggrieved by the personation, etc., of himself by a defendant.] other in damages to be §1901. In an action, brought by the adverse party, as pre- Treble and scribed in the last section, the plaintiff, if he recovers final judg- creased ment, is entitled to recover treble damages. In an etion, brought recovered. 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. [The remainder of same section, with like amendments, but in substance unchanged, except that the provision has been extended to a case where judgment is taken by default; and the sum of $250 is given in addition to, and not, as in the original, in lieu of, the actual damages of the person whose name was used.] ARTICLE FIFTH. MISCELLANEOUS ACTIONS AND RIGHTS OF ACTION. transferee or de mand may Rights of ant, etc. § 1909. Where a claim or demand can be transferred, the trans- When fer thereof passes an interest, which the transferee may enforce by of claim an action or special proceeding, or interpose as a defence or counter- sue. claim, in his own name, as the transferor might have done; subject defend 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. [New. See the note to the next section.] 1910. Any claim or demand can be transferred, except in one What of the following cases: claims or demands JUSTICE'S MANUAL. may be transferred. 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. [This and the last section have been prepared as a substitute for Co. Proc., § 112, and the latter half of the first sentence of Co. Proc, § 111. There is no provision of the Code of Procedure, the remodelling of which was more urgently demanded by the principles adopted in this revision, than the short phrase referred to; for it has given rise to so many adjudications, that a complete list of their titles only would probably occupy an entire page of this book. A few only of the most recent are cited; for the others, the reader is necessarily referred to the digests. De Lancey v. Stearns, 66 N. Y., 157; Crane v. Turner, 67 N. Y., 437; Gray v. Green, 12 Hun, 598; Drake v. Smith, 12 Hun, 532; Mayer v. Mode, 14 Hun, 155; Maule v. Crawford, 14 Hun, 193; Seligman v. Dudley, 14 Hun, 186; Getty v. Devlin, 70 N. Y., 504; Rosepaugh v. Vredenburgh, 16 Hun, 60; Pilcher v. Brayton, 17 Hun, 429; Krauser v. Ruckel, 17 Hun, 463; McBratney v. Rome, etc., R. R. Co., 17 Hun, 385; Seymour v. Fellows, 44 N. Y. Super. Ct. (J. & S.), 124; Grand Rapids, etc., R. R. Co. v. Sanders, 17 Hun, 552; Heermans v. Ellsworth, 64 N. Y., 159; Barton v. Spies, 73 N. Y., 133; Comstock v. Hier, 73 N. Y., 269; Freund v. Imp. & Traders' Nat'l Bank, 76 N. Y., 352. These sections supersede nearly all of this vast mass of adjudications. The remainder will be valuable, only because the sections. have been purposely confined to the transfer of causes of action, and are therefore inapplicable to the transfer of property, or those vague interests which partake of the character of "jus precarium", and are, therefore, not properly embraced by the phrase, "a cause of action. With respect to the latter classes of questions, it is believed, that their connection with the provision, for which these sections are substituted, is generally quite remote; and they may be left to be regulated by general principles, without any special statutory provision. The word, "transfer", and its derivatives have been used in these sections, instead of "assignment" and its derivatives, so as to include various cases, where the title passes "in invitum", or without a formal assignment, as by the appointment of a receiver. The concluding sentence of 1909 should be read in connection with § 502, ante, relating to counterclaims. Section 1910 settles various disputed questions relating to the assignability of causes of action, as it makes every cause of action assignable, not included within one of the special exceptions. The general rule, to be derived from the authorities, is that the test of assignability is whether the cause of action would pass to the executor or administrator. But this is too vague a test for practical use in many cases; and has given rise in its turn to some difficult questions. Thus, while the court of appeals has held that an assignee may recover money lost in gaming (Meech v. Stoner, 19 N. Y., 26), the supreme court has made two conflicting decisions upon the question, whether the same rule applies to money lost in betting. McDougal v. Walling, 48 Barb., 364; Weyburn v. White, 22 id., 82. Again, although the general rule permits a cause of action for a wrong affecting property to be assigned, the court of appeals has held, that an assignee cannot sue to recover damages, in consequence of fraudulent representations respecting the solvency of a third person (Zabriskie v. Smith, 13 N. Y., 322); and this decision has led to a subtle distinction, between cases where a wrong directly affects specific property, and those where it produces a general pecuniary damage. Graves v. Spier, 58 Barb., 349; see, particularly, pp. 384-386, and the cases cited. This and other distinctions, and various exceptions to the general rule, which have been introduced, rest on no solid foundation, and should be swept away. Accordingly, subd. 1 of this section confines the exceptions, arising out of the nature of the action, to actions brought to recover damages for personal injuries, as that expression is defined in § 3343, subd. 9, post, and also for breach of promise, which partakes of the same character. The exceptions enumerated in subd. 2 will rarely occur; but there are some special statutory prohibitions against transfers of land, which render it proper to insert the subdivision, such as the restrictions upon conveyances by the commissioners of the land office, Indian lands, etc. Subd. 3 includes all cases, where an assignment is expressly forbidden by law, as 1 R. S., 730, Part 2, ch. 1, tit. 2, §§ 63, 65 (3 R. S., 5th ed., 21, 22; 1 Edm., 679, 680); and various statutes of the U. S., relating to pensions, government contracts, etc.; and also those where a contract or other right of action is connected with an official duty. Per DENIO, J., in Horner v. Wood, 23 N. Y., 355, and Bliss v. Lawrence, 58 N. Y., 442.] PART II. when assignable. 1912. A judgment for a sum of money, or directing the pay- Judgment. ment 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. [New. The first clause is in accordance with the uniform rule, recognized in the cases referred to in the note to the last section; the remainder of the section settles a question which is yet doubtful, in accordance with the apparent logical result of the principles applicable thereto. See Cutts v. Guild, 56 N. Y., 229; Coughlin v. N. Y. C. & H. R. R. Co., 71 N. Y., 443.] upon judgment 1913. Except in a case where it is otherwise specially pre- Action scribed in this act, an action upon a judgment for a sum of money, regulated rendered in a court of record of the State, cannot be maintained, between the original parties to the judgment, 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 |