« AnteriorContinuar »
49 When execution against such officer not to issue. An execution cannot be issued upon a judgment 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. Code Civ. Pro., § 1931.
19 Wend. 50; 75 N. Y. 316; 107 id. 225; 93 id. 397, 403, aff'g 29 Hun, 185; 5 Civ. Pro. 227; 35 Hun, 114; 44 id. 577; 21 W. D. 338; 16 id. 205; 114 N. Y. 317; 73 Hun, 424; 87 id. 507; 56 N. Y. St. R. 625.
Action against the Usurper of an Office or Franchise.
50 Brought by attorney-general; in what cases. The attorney-general may maintain an action, upon his own information, or upon the complaint of a private person, in either of the following cases:
1. Against a person who usurps, intrudes into, or unlawfully holds or exercises, within the state, a franchise, or a public office, civil or military, or an offi e in a domestic corporation.
1 Lans. 202; id. 308; 64 How. Pr. 109; s. c. 11 Abb. N. C. 64; 6 Civ. Pro. 406; 101 N. Y. 539; 46 Hun, 394; 34 id. 163; 38 id. 236, 237; 21. Alb. L. J. 433; 22 W. D. 504; 27 Abb. N. C. 253; 33 N. Y. St. R. 299; 48 id. 697; 60 id. 162.
2. Against a public officer, civil or military, who has done or suffered an act, which by law works a forfeiture of his office.
3. Against one or more persons who act as a corporation, within the state, without being duly incorporated; or exercise, within the state, any corporate rights, privileges, or franchises, not granted to them by the law of the state.
4. Against a foreign corporation which exercises within the state any corporate rights, privileges or franchises, not granted to it by the law of this state; or which within the state, has violated any provision of law, or, contrary to law, has done or omitted any act, or has exercised a privilege or franchise, not conferred upon it by the law of this state, where, in a similar case, a domestic corporation would, in accordance with section seventeen hundred and ninety-eight of this act, be liable to an action to vacate its charter and to annul its existence; or which exercises within the state any corporate rights, privileges or franchises in a manner contrary to the public policy of the state. Code Civ. Pro., § 1948, subd. 4, added by L. 1896, c. 962.
32 Barb. 35; s. c. 19 How. Pr. 155; s. c. 9 Abb. Pr. 253; 27 Hun, 528; s. c. 15 W. D. 228; 30 Hun, 322, 323; 27 id. 528, 529; 22 Barb. 114; s. c. 3 Abb. Pr. 13; s. c. 13 How. Pr. 179; 58 N. Y. 1; 67 id. 334; 64 How. Pr. 109; s. c. 11 Abb. N. C. 64; 128 N. Y. 129; 141 id. 232; 78 Hun, 544; 3 Misc. 333; 52 N. Y. St. R. 318; 56 id. 827; 2 N. Y. Supp. 578; 13 id. 714; 16 id. 40; 23 id. 124; 29 id. 619.
51 Complaint may name rightful incumbent; arrest of defendant; judgment. In an action, brought as prescribed in the last section, for usurping, intruding into, unlawfully holding, or exercising an office, the attorney-general, besides stating the cause of action in the complaint, may, in his discretion, set forth therein the name of the person rightfully entitled to the office, and the facts showing his right thereto; and thereupon, and upon proof, by affidavit, that the defendant, by means of his usurpation or intrusion, has received any fees or emoluments belonging to the office, an order to arrest the defendant may be granted by the court, or a judge. The provisions of title first of chapter seventh* of this act apply to such an order, and the proceedings thereupon and subsequent thereto, except where special provision is otherwise made in this title. For that purpose, the order is deemed to have been made as prescribed in section 549 of this act. Judgment may be rendered upon the right of the defendant, and of the party so alleged to be entitled; or only upon the right of the defendant, as justice requires. Code Civ. Pro., § 1949.
See Code Civ. Pro., § 1984; 55 N. Y. 525; 57 id. 161; 8 id. 71; 101 id. 543, 545; 15 Hun, 204; 16 id. 219: 38 id. 238; 64 How. Pr. 109, 114; s. c. 11 Abb. N. C. 64, 69; 22 W. D. 505; 7 Daly, 188; 128 N. Y. 129; 13 N. Y. Supp. 714.
* Arrest, §§ 1-8.
+ Id., § 2.
52 Triable by jury. An action, brought as prescribed in this article,* is triable, of course and of right, by a jury, in like manner as if it was an action specified in section 968+ of this act, and without procuring an order, as prescribed in section 970† of this act. Code Civ. Pro., § 1950.
12 Abb. N. C. 389; 57 N. Y. 161; 36 id. 569, 572; 40 id. 504; 45 Hun, 538.
53 Assumption of office by person entitled; demand of books, etc., from defendant. Where final judgment is rendered, upon the right and in favor of the person so alleged to be entitled, he may, after taking the oath of office, and giving an official bond, as prescribed by law, take upon himself the execution of the office. He must, immediately thereafter, demand of the defendant in the action, delivery of all the books and papers in the custody, or under the control, of the defendant, belonging to the office from which the defendant has been so excluded. Code Civ. Pro., § 1951.
73 N. Y. 535; 7 How. Pr. 282.
54 Refusal a misdemeanor; delivery may be compelled. If the defendant refuses or neglects to deliver any of the books or papers, demanded as prescribed in the last section, he is guilty of a misdemeanor; and the same proceedingst must be taken, to compel the delivery thereof, as are now or shall hereafter be prescribed by law, where a person, who has held an office, refuses or neglects to deliver the official books or papers to his successor. Code Civ. Pro., § 1952.
21 Alb. L. J. 174; 11 How. Pr. 418; 7 id. 282; 8 id. 367; 9 id. 414; 26 Barb. 437; 14 id. 396, 401; 26 id. 429; 6 Abb. Pr. 220.
55 Damages against usurper. Where final judgment has been rendered, upon the right and in favor of the person so alleged to be entitled, he may recover, by action against the defendant, the damages which he has sustained in consequence of the defendant's usurpation, intrusion into, unlawful holding, or exercise of the office. Code Civ. Pro., § 1953, as am'd L. 1884, c. 399.
12 Wend. 277; 3 Abb. Pr. 233; 14 Abb. N. C. 29; 66 How. Pr. 463; 32 Hun, 613, 614; 101 N. Y. 543; 110 id. 664.
56 Action against two or more claimants. Where two or more persons claim to be entitled to the same office or franchise, the attorney-general may bring the action against all, to determine their respective rights thereto. Code Civ. Pro., § 1954.
57 N. Y. 161, 173.
57 Injunctions against usurpation of corporate franchise. In an action brought as specified in subdivisions third or fourth of section nineteen hundred and forty-eight of this act, the final judgment in favor of the plaintiff must perpetually restrain the defendant or defendants from the commission or continuance of the act or acts complained of. A temporary injunction to restrain the commission or continuance thereof may be granted, upon proof, by affidavit, that the defendant or defendants have violated any of the provisions of either of the said subdivisions third or fourth of section nineteen hundred and forty-eight of this act. The provisions of title second of chapter sevenths of this act apply to such a temporary injunction, and the proceedings thereupon, except where provision is otherwise made in this title. For that purpose, the injunction order is deemed to have been granted as prescribed in section six hundred and three of this act. In the trial of an action brought as prescribed in subdivisions third or fourth of section nineteen hundred and fortyeight of this act, a party or a witness is not excused from answering a question on the ground that such answer will tend to incriminate him; but such answer cannot be used as evidence against the person so answering, in a criminal action or criminal proceeding. Code Civ. Pro., § 1955, as am'd L. 1896, c. 963.
52 N. Y. St. R. 318.
58 Judgment against usurping officer; fine. In any other action, brought as prescribed in this article, where a defendant is adjudged to be guilty of usurping Public Officers Law, § 104. This subject, § 50-78.
*This subject, §§ 50-58. +Trials, § 6, 8. SInjunction, §§ 1-4, 6-29.
or intruding into, or unlawfully holding or exercising, an office, franchise, or privilege, final judgment must be rendered, ousting and excluding him therefrom, and in favor of the people or the relator, as the case requires, for the costs of the action. As a part of the final judgment, the court may, in its discretion, also award, that the defendant, or, where there are two or more defendants, that one or more of them, pay to the people a fine, not exceeding two thousand dollars. The judgment for the fine may be docketed, and execution may be issued thereupon, in favor of the people, as if it had been rendered in an action to recover the fine. The fine, when collected, must be paid into the treasury of the state. Code Civ. Pro., § 1956.
20 W. D. 276, 277; 65 How. Pr. 468, 470; 46 Hun, 396; 20 Civ. Pro. 195; 21 id. 159; 128 N. Y. 129; 25 Abb. N. C. 253; 37 N. Y. St. R. 603; 11 N. Y. Supp. 672; 13 id. 714. Actions to Vacate Letters-Patent.
59 Brought by attorney-general; in what cases. The attorney-general may maintain an action to vacate or annul letters-patent, granted by the people of the state, in either of the following cases:
1. Where they were obtained by means of a fraudulent suggestion, or concealment of a material fact, made by, or with the knowledge or consent of, the person to whom they were issued.
9 N. Y. 349, aff'g 10 Barb. 120; 10 Johns. 23, 26; 5 Den. 389, 398; 8 Barb. 250, 286.
2. Where they were issued in ignorance of a material fact, or through mistake. 9 Hin, 708; 19 Barb. 540, 556.
3. Where the patentee, or those claiming under him, have done or omitted an act, in violation of the terms and conditions upon which the letters-patent were granted, or have, by any other means, forfeited the interest acquired under the
Whenever the attorney-general has good reason to believe, that any act or omission, specified in this section, can be proved, and that the person to be made defendant has no sufficient legal defence, he must commence such an action. Code Civ. Pro., § 1957.
60 Triable by jury. An action, brought as prescribed in this article,* is triable, of course and of right, by a jury, as if it was an action specified in section 968† of this act, and without procuring an order, as prescribed in section 970 of this act. Code Civ. Pro., § 1958.
12 Abb. N. C. 389, n.
61 Copy of judgment-roll to be filed with secretary of state; entry in records of commissioners of the land office; effect. Where final judgment, vacating or annulling letters-patent, is rendered in an action, brought as prescribed in the last section, the attorney-general must cause a copy of the judgment-roll to be forthwith filed in the office of the secretary of state; who must make an entry, in the records of the commissioners of the land office, stating the substance and effect of the judgment, and the time when the judgment-roll was filed. The real property, granted by those letters-patent, may thereafter be disposed of by the commissioners of the land office, as if the letters-patent had not been issued. Code Civ. Pro., § 1959.
62 Transcript of entry to be filed in the county where the land is.
Action Founded upon the Spoliation or other Misappropriation of Public Property.
Trials, § 6.
owned by the state, or held or owned, officially or otherwise, for or in behalf of a governmental or other public interest, by a domestic municipal, or other public corporation, or by a board, officer, custodian, agency, or agent of the state, or of a city, county, town, village, or other division, subdivision, department, or portion of the state, has heretofore been, or is hereafter, without right obtained, received, converted, or disposed of, an action to recover the same, or to recover damages, or other compensation, for so obtaining, receiving, paying, converting, or disposing of the same, or both, may be maintained by the people of the state, in any court of the state having jurisdiction thereof, although a right of action, for the same cause, exists by law in some other public authority, and whether an action therefor, in favor of the latter, is or is not pending, when the action in favor of the people is commenced. Code Civ. Pro., § 1969.
5 Hun, 382; appeal dismissed, 63 N. Y. 202; see Code Civ. Pro., § 2218; 121 N. Y. 522; 31 N. Y. St. R. 860; 34 id. 240.
See Insolvency, § 70.
64 Stay of other actions brought for same cause; vacating orders, etc., and bringing in parties to those actions. Where an action is commenced by the people, for a cause specified in the last section, the court in which it is brought, may, upon the application of any party thereto, grant an order staying proceedings in any other action, brought, for the same cause, in the same or any other court of the state, by a public authority, other than the people; and, if necessary or proper, it may vacate any order or interlocutory judgment, made or rendered in such an action; and it may, by the same order, or by a subsequent order, granted upon the application of any party to either action, direct that any party to the action so stayed, be brought in, as a party to the action commenced by the people. Code Civ. Pro., § 1970.
34 N. Y. St. R. 240.
65 May be brought in foreign courts. The people of the state may commence and maintain, in their own name, or otherwise, as is allowable, one or more actions, suits, or other judicial proceedings, in any court, or before any tribunal, of the United States, or of any other state, or of any territory of the United States, or of any foreign country, for any cause specified in the last section but one. Code Civ. Pro., § 1971.
34 N. Y. St. R. 240.
See Statutory Construction Law, § 23.
66 Entire cause of action vests in the people. Upon the commencement, by the people of the state, of any action, suit, or other judicial proceeding, as prescribed in this article, the entire cause of action, including the title to the money, funds, credits, or other property, with respect to which the suit or action is brought, and to the damages or other compensation, recoverable for the obtaining, receipt, payment, conversion, or disposition thereof, if not previously so vested, is transferred to, and becomes absolutely vested in, the people of the state. Code Civ. Pro., § 1972.
34 N. Y. St. R. 240; 3 N. Y. Supp. 847.
67 Ten year limitation. The people of the state will not sue for a cause of action, specified in this article, unless it accrued within ten years before the action is commenced. Code Civ. Pro., § 1973.
34 N. Y. St. R. 240.
68 Provisions of final judgment. Any court of the state, in which an action is brought by the people, as prescribed in this article, may, by the final judgment therein, or by a subsequent order, direct that any money, funds, damages, credits, or other property, recovered by, or awarded to, the plaintiff therein, which, if that action had not been brought, would not have vested in the people, be disposed of, as justice requires, in such a manner as to re-instate the lawful custody thereof, or to apply the same, or the proceeds thereof, to the objects and purposes for which they were authorized to be raised or procured; after paying into the state treasury, This subject, §§ 63–70.
out of the proceeds of the recovery, all expenses incurred by the people in the action. Code Civ. Pro., § 1974.
34 N. Y. St. R. 240.
69 After final judgment claimants to petition supreme court in Albany; notice; final order. Any corporation, board, officer, custodian, agency, or agent, may, in behalf of any city, county, town, village, or other division, subdivision, department, or portion of the state, which was not a party to an action, brought as prescribed in this article,* and which claims to be entitled to the custody or disposition of any of the money, funds, damages, credits, or other property, recovered by, or awarded to the plaintiff, by the final judgment in the action, or any of the proceeds thereof, and not disposed of as prescribed in the last section, present, at any time after the actual collection of the money, and its payment into the state treasury, or the actual receipt of the property by the people, to the supreme court, at a special term thereof held in the county of Albany, a verified petition, setting forth the facts, and praying for the relief to which he or it is entitled. Notice of the application and a copy of the petition must be served upon the attorney-general. Upon the hearing the court may make such a final order, as justice requires, for the disposition of the money or other property as prescribed in the last section. Code Civ. Pro., § 1975.
34 N. Y. St. R. 240.
70 When attorney-general must bring such action. The attorney-general must commence an action, suit, or other judicial proceeding, as prescribed in this article,* whenever he deems it for the interest of the people of the state, so to do; or whenever he is so directed, in writing, by the governor. Code Civ. Pro., § 1976.
34 N. Y. St. R. 240.
Miscellaneous Provisions Relating to Actions, etc., in Behalf of the People.
71 Scire facias, quo warranto, etc., abolished. The writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warranto, have been abolished. The relief, formerly obtained by means of either of those writs, may be obtained by action, where an appropriate action therefor is prescribed in this act. Code Civ. Pro., § 1983.
See Code Civ. Pro. §§ 1376-1381; 30 Barb. 588; 8 N. Y. 67, 71; 55 id. 525, 529; 52 id. 576; 101 id. 539, 543; 6 Abb. Pr. 220, 223; 21 Alb. L. J. 433; 22 W. D. 504; 38 Hun, 237; 80 N. Y. 117; 26 Abb. N. C. 407.
72 To be brought in name of the people; procedure therein. 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. Code Civ. Pro., § 1984.
40 Hun, 316, 322; 34 id. 163; 6 Civ. Pro. (Browne) 410; 48 N. Y. St. R. 697.
73 Form of judgment or order against the people; execution not to issue. 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. Code Civ. Pro., § 1985.
52 N. Y. 576.
74. Relator to be joined as plaintiff; to give security; to compensate attorneygeneral. Where an action is brought by the attorney-general, as prescribed in this title, on the relation or information of a person, having an interest in the question, the complaint must allege, and 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 This subject, §§ 63-70. Code Civ. Pro., §§ 1948-1990.