JUSTICE'S Action upon penal bond. 2. The court in which the action is brought has previously made an order, granting leave to bring it. Notice of the application for such an order must be given to the adverse party, or the person proposed to be made the adverse party, personally, unless it satisfac. torily appears to the court, that personal notice cannot be given, with due diligence; in which case, notice may be given in such a manner as the court directs. [Co. Proc., § 71, omitting the latter clause, relating to actions upon judgments in justices' courts, a substitute for which is contained in § 3154; and with amendments, of which only the following are material. The introductory phrase excepts from the operation of the section, actions like those provided for in title 5, art. 3 of this chapter, and in article 1 of this title. The original section was thus construed in various cases, but at the expense of some straining of its language. The words, "for a sum of money", have been added in accordance with Hanover F. Ins. Co. v. Tomlinson, 3 Hun, 630; S. C., 6 N. Y. Sup. Ct. (T. & C.), 127; and the words, " of record ", have been added before, and the words, "except a court of a justice of the peace", omitted after "of the State"; so as not to include judgments of the district courts of New-York city, and similar courts not of record. Subd. 1 introduces an exception which appears to be just. The orignal statute has been otherwise construed, Force v. Gower, 22 How. Pr., 294. In subd. 2, the words," in which the action is brought ", have been added, so as to follow the ruling in National Mech. Banking Ass'n v. Usher, 1 Sweeny, 403. The conclusion of the section after the words," adverse party", is new. Its object will be perceived without special explanation.](^) § 1915. A bond in a penal sum, executed within or without the State, and containing a condition to the effect, that it is to be void, upon performance of any act, has the same effect, for the purpose of maintaining an action or special proceeding, or two or more successive actions or special proceedings thereupon, as if it contained a covenant to pay the sum, or to perform the act, specified in the condition thereof. But the damages to be recovered for a breach, or successive breaches, of the condition, cannot, in the aggregate, exceed the penal sum, except where the condition is for the payment of money; in which case, they cannot exceed the penal sum, with interest thereupon, from the time when the defendant made default in the performance of the condition. [This section is new in form. It supersedes 2 R. S., 353, Part 3, ch. 6, tit. 2, §§ 12 and 13 (3 R. S., 5th ed., 634; 2 Edm., 364); and 2 R. S., 378, 379, being the whole of art. 2, of tit. 6 of the same chapter (3 R. S., 5th ed., 661, 662; 2 Edm., 392-394). It embodies the rules, 300 now established by the courts of the State, for the cases therein provided for, with respect to the mode of procedure and the extent of the recovery; except that, for the sake of simplicity, no mention has been made of some of the exceptions to the rule, which regulates a recovery beyond the amount of the penal sum, recognized in Lyon v. Clark, 8 N. Y. (4 Seld.), 148, wherein that vexed question was settled. Most of these provisions remained in force, till they were repealed in 1880, and constituted a perpetual source of embarrassment, in the class of actions to which they applied, especially as the general impression of the profession was that they were superseded by the Code of Procedure. Beers v. Shannon, 73 Ñ. Y., 292.] 1916. 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 necessarily 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 (3 R. S., 5th ed., 226; 4 Edm., 483), amended by the addition of the words, "where the trust estate is insufficient to reimburse him", and "by the express or implied consent of the principal or beneficiary ", and also of the concluding sentence. The general object of the statute, of which the original section is a part, was to enable certain trustees to disaffirm acts in fraud of creditors, and maintain or defend actions accordingly. Evidently, the primary object of § 3 was to enable them to recover their expenses in so doing, by action against the creditors for whose benefit they acted. But the language of the section is general, and its provisions extend to "any indorser or other surety", apparently as the result of an after thought. As it stood, in the original statute, the section might be made the vehicle of gross oppression and injustice. The amendments remove the most odious features of the original, under which a man might apparently be compelled to pay the costs of an unsuccessful suit, brought against his express prohibition.] PART II. Action by recover surety or trustee to costs, etc. upon lost paper. § 1917. Where it appears, upon the trial of an action, that a Action negotiable promissory note or bill of exchange, upon which the negotiable action, or a counterclaim interposed in the action, is founded, was lost, while it belonged to the party claiming the amount due thereupon, he may prove the contents 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 ad JUSTICE'S The last section verse party a written undertaking, in a sum fixed by the judge of the referee, not less than twice the amount of the note or bill, with at least two sureties, 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, Part 3, ch. 7, tit. 3, §§ 75, 76 (3 R. S., 5th ed., 691; 2 Edm., 423), consolidated, and amended by substituting an undertaking for a bond, but unchanged in substance. The provision that parol evidence may be given is probably superfluous; but it has been retained because, without it, the section may, in some cases of lost notes, render the rule of evidence different from that governing the right of recovery. Livingston v. Rogers, 2 Johns. Cas., 488; Blade v. Noland, 12 Wend., 173. It appears, from the revisers' notes, that the object of the section was to permit a recovery at law in such cases, for it had been held in Rowley v. Ball, 3 Cow., 303, that there was no remedy except in equity. It has been held, that the section is applicable to a certificate of deposit, Frank v. Wessels, 64 N. Y., 155; also to a check, Jacks v. Darrin, 3 E. D. Smith, 548, and id., 557; also to an instrument lost after the commencement of the action, id.; but not to one, which has been destroyed either intentionally, Blade v. Noland, supra; or accidentally, Des Arts v. Leggett, 16 N. Y., 582. Nor is it applicable to paper not negotiable, upon which the party may, in general, recover without an indemnity. Des Arts v. Leggett, 5 Duer, 156; Wright v. Wright, 54 N. Y., 437. The amendments will not affect these rulings. It was also held in Rowley v. Ball, supra, and Pintard v. Tackington, 10 Johns., 104, that the party might recover at law, and of course without indemnity, upon a negotiable note, which was lost after maturity, if it had not been negotiated; but the R. S. evidently intended to change this rule. See, to that effect, Frank v. Wessels, supra.] § 1918. But where an action is prosecuted or defended by the qualified. 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 due thereupon, without giving any security to the adverse party. [Substituted for L. 1855, ch. 85 (3 R. S., 5th ed., 691; 4 Edm., 645), The original statute is a remarkable specimen of careless legislation. It contains an erroneous reference to the R. S., in consequence of which, Judge Edmonds "cannot tell what this act means"; but the editors of the 5th ed. of the R. S. have explained it correctly. But the text of the statute seems to have led to a conclusion, directly contrary to the evident intent of its framers. It provided that the section of the R. S., for which the last section is a substitute, should not apply to an action by the people; the effect of which, as the note shows, would be to require the people to bring an action in equity, in order to enable them to recover, and to furnish more stringent security than the law prescribed in ordinary cases; and, on the other hand, to prevent a defendant sued by the people from setting off a lost instrument in any case, because the people cannot be sued. The title of the original act shows that the substitute accomplishes the design of its framers.] PART II. TITLE V. Other actions by or against particular parties. ARTICLE 1. Action by or against an unincorporated association. 2. Actions by or against certain county, town, and municipal officers. ARTICLE FIRST. ACTION BY OR AGAINST AN UNINCORPORATED ASSOCIATION. etc., by o associations of seven or more per may sons. An § 1919. An action or special proceeding may be maintained, Actions, by the president or treasurer of an unincorporated association, con- against sisting of seven or more persons, to recover any property, or upon any cause of action, for or upon which all the associates maintain such an action or special proceeding, by reason of their interest or ownership therein, either jointly or in common. 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, Any partnership, or other company of persons, which has a president or treasurer, is deemed an association, within the meaning of this section. [From L. 1849, ch. 258, § 1 (3 R. S., 5th ed., 777; 4 Edm., 650), and L. 1851, ch. 455 (3 R. S., 5th ed., 778; 4 Edm., 652). In Wescott v. Fargo, 61 N. Y., 542, it was held that the president or treasurer of a joint stock association was, under the statutes in question and Const., art. 8, to be regarded, for the purposes of an action, as a corporation sole. But with respect to some of the kinds of associations JUSTICE'S MANUAL included, the meaning of these provisions is yet unsettled. In Austin Proceedings in case of death, etc. Effect of judgment; V. Searing, 16 N. Y., 112, SHANKLAND, J., says that the act of 1851 applied exclusively to associations authorized by statute, and not to "private voluntary associations or "copartnerships"; but the case went off upon another ground. In Tibbetts v. Blood, 21 Barb., 650, the supreme court, in the eighth district, held that it applied to any association for business, social, or other lawful purposes, as an Odd Fellows' lodge, but doubted whether it extended to a commercial copartnership. In De Witt v. Chandler, 11 Abb. Pr., 459, the supreme court, in the first district, following the latter case as res adjudicata, held that the statute embraced a missionary society. In remodelling the provision, these two decisions of the supreme court have been followed; and the concluding sentence has been added, whereby the section is expressly extended to a copartnership. In Corning v. Greene, 23 Barb., 33, WRIGHT, J., (p. 47 of the report,) says that the acts of 1849 and 1851 apply only to cases where the associa tion, as such, is interested, and not to those where the interest of each associate is several. The decision was affirmed in the court of appeals, 26 N. Y., 472, note, but the reasoning of that court is not given. This rule is correct, with respect to actions by the association, and has been followed in that particular. But where the action is against the association, the fact, that the liability of the associates may be several, should not be an objection, and this section has been framed in accordance with that idea. See on the subject of the action generally, Ebbinghousen 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.] § 1920. 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. [The substance of § 2 of the act of 1849, with the addition of the final clause of this section, beginning "or any other officer". The object of the final clause is to permit the action or special proceeding to be continued by or against the treasurer, when the president dies, etc., and vice versa. It is said that a case has actually happened, where the president of an association died while an action was pending against him, and, no successor having been appointed, the court held that it had no power to permit the action to be continued against the treasurer.] 1921. In such an action, the officer against whom it is execution brought can. ot be arrested; and a judgment against him does not authorize an execution to be issued against his property, or his per there upon. |