JUSTICE'S When action cannot be maintained. Action for forfeiture, etc. CHAPTER XVI. ACTIONS IN BEHALF OF THE PEOPLE, AND SPECIAL TITLE I. Actions in behalf of the people. ARTICLE THIRD. ACTION FOR A FINE, PENALTY, OR FORFEITURE, OR UPON A FORFEITED § 1961. Whenever, by the decision of the general term of the supreme court, or of a superior city court, a construction is given to a statute, an act done, in good faith, and in conformity to that construction, after the decision was made, and before a reversal thereof by the court of appeals, is so far valid, that the party doing it is not liable to any penalty or forfeiture, for an act that was adjudged lawful by the decision of the court below. But this section does not control or affect the decision of the court of appeals, upon an appeal actually taken before the reversal. [2 R. S., 602, Part 3, ch. 9, tit. 3, § 66 (2 Edm., 624).] § 1962. Where real or personal property has been forfeited, or a penalty incurred, to the people of the State, or to an officer, for their use, pursuant to a provision of law, the attorney-general, or the district-attorney of the county in which the action is triable, must bring an action to recover the property or penalty, in a court having jurisdiction thereof. Where the supreme court and a justice's court have concurrent jurisdiction of the action, it may be brought in either, at the election of the attorney-general or district-attorney. A recovery in such an action bars a recovery, in any other action, brought for the same cause. [Co. Proc., § 447; 2 R. S.,481, Part 3, ch. 8, tit. 6, § 3, first sentence (2 Edm., 503).] § 1963. Money recovered in such an action, which is not other wise specially granted or appropriated by law, must, when collected, be paid into the treasury of the State. [Remainder of § 3 of the R. S.] PART II. Money posed of. recovered; how dis § 1964. Sections 1897 and 1898 of this act apply to an action, Certain brought as prescribed in the last two sections. [Substituted for §§ 17 and 15 of the R. S.] proceedings in the action regulated. ance: how forfeited. 1965. Where the condition of a recognizance is broken, an Recognizorder of the court, directing the prosecution of the recognizance, is a sufficient forfeiture thereof. [Id., § 31.] on recog § 1966. Where a recognizance to the people is forfeited, the Action district-attorney of the county in which it was taken, must, unless nizance. the court otherwise directs, forthwith bring an action to recover the penalty thereof. It is not necessary, in such an action, to allege or prove any damages, by reason of the breach of the condition; but where the people are entitled to judgment therein, they must have judgment absolute, for the penalty of the recognizance. [Id., § 29.] received by attorney; posed of. 1967. Within thirty days after a district-attorney receives or Money collects money upon a recognizance, or for a penalty or forfeiture, districtbelonging to the county, he must pay it to the county treasurer of how dis his county, deducting only his necessary disbursements; except that, where he does not receive, as his compensation, a salary fixed pursuant to law, the county court may, by an order entered in its minutes, allow him to retain also a sum, specified in the order, for his reasonable costs and expenses, and a reasonable counsel fee. [Id., § 32. See L. 1852, ch. 304, §§ 1 and 6 (3 Edm., 336), and L. 1870, ch. 752, § 1 (7 Edm., 777).] attorney § 1968. Each district-attorney must render to the first term of the Districtcounty court of his county, held in each calendar year, a written to render account. JUSTICE'S MANUAL account, verified by his affidavit, of all actions brought by him upon recognizances, or for penalties or forfeitures belonging to the county, or to the State; of all his proceedings therein; of all judgments recovered by him therein; and of all money, collected by him from any person, belonging to the county or the State. This section applies to a district-attorney who has gone out of office during the preceding calendar year. Actions to be brought in the name of the people. Judgment for costs may be taken against the people. Relator; when to be plaintiff; tion [Id., §§ 34, 35, 36.] ARTICLE SIXTH. MISCELLANEOUS PROVISIONS, RELATING TO ACTIONS, ETC., IN BEHALF OF THE 1984. An action, brought as prescribed in this title, except an action to recover a penalty or forfeiture, expressly given by law to a particular officer, must be brought in the name of the people of the State; and the proceedings therein are the same, as in an action by a private person, except as otherwise specially prescribed in this title. [New.] § 1985. Where judgment is rendered, or a final order is made, against the people, in a civil action brought, or special proceeding instituted, in their name, by a public officer, pursuant to a provision of law, it must be to the same effect, and in the same form, as against a private individual, who brings a like action, or institutes a like special proceeding, except as otherwise specially prescribed by law. But an execution shall not be issued against the people. [2 R. S., 552, Part 3, ch. 8, tit. 17, § 13 (2 Edm., 573).] § 1986. Where an action is brought by the attorney-general, as Joined as prescribed in this title, on the relation or information of a person, compensa- having an interest in the question, the complaint must allege, and attorney- the title of the action must show, that the action is brought upon the relation of that person. In such a case, the attorney-general must, as a condition of bringing the action, require the relator to give satisfactory security to indemnify the people, against the costs general. and expenses thereof. Where security is so given, the attorneygeneral is entitled to compensation for his services, to be paid by the relator, in like manner as the attorney and counsel for a private person. [Co. Proc., § 434. See § 3242, post.] PART II. people, corpora tion, required security. § 1990. Each provision of this act, requiring a party to give When security, for the purpose of procuring an order of arrest, an injunc-munepal tion order, or a warrant of attachment, or as a condition of obtain- etc., not ing any other relief, or taking any proceeding; or allowing the to give court, or a judge, to require such security to be given; is to be construed, as excluding an action brought by the people of the State, or by a domestic municipal corporation; or by a public officer, in behalf of the people, or of such a corporation; except where the security, to be given in such an action, is specially regulated by the provision in question. TITLE II. Special proceedings instituted by State writ. ARTICLE SECOND. THE WRIT OF HABEAS CORPUS, TO BRING UP A PERSON TO TESTIFY. PRELIMINARY NOTE.-The following sections of this article are inserted herein, because they refer to and affect proceedings in justices' courts, although no proceeding can be taken under them in such courts. pro § 2008. A court of record, other than a justices' court of a city, or a judge of such a court, or a justice of the supreme court, has power, upon the application of a party to an action or special ceeding, civil or criminal, pending therein, to issue a writ of habeas corpus, for the purpose of bringing before the court, a prisoner, detained in a jail or prison within the State, to testify as a witness in the action or special proceeding, in behalf of the applicant. [2 R. S., 559, Part 3, ch. 9, tit. 1, § 1 (2 Edm.: 580).] Habeas corpus to testify; allowed by when court or judge. JUSTICE'S Id.; in suit etc. § 2010. Such a writ may also be issued by a justice of the supreme court, upon the application of a party to an action, pend the peace, ing before a justice of the peace, or in a justices' court of a city, or a district court of the city of New-York, to bring before the jus tice or court, to be examined as a witness, a prisoner confined in the jail of the county where the action is to be tried, or an adjoining county. In a case specified in this section, the writ may also be issued by a judge of a superior city court, a county judge, or a special county judge, residing within the county where the justice resides, or the court is located, or the prisoner is confined, as the case may be. Writ not to issue to bring up prisoner under death sentence; nor for felony, except on application of people. [Id., § 4.] § 2011. [Amended, 1880.] A writ shall not be issued, by virtue of either of the last three sections, to bring up a prisoner, sentenced to death. Nor shall it be issued to bring up a prisoner confined under any other sentence for a felony; except where the application is made in behalf of the people, to bring him up as a witness on the trial of an indictment; and then only by and in the discretion of a justice of the supreme court, or a judge of a superior city court, upon such notice to the district-attorney of the county wherein the prisoner was convicted, and upon such terms and conditions, and under such regulations, as the judge may prescribe. [From id., § 1.] 322 |