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 Most of these provisions remained in force, till they were repealed in 1880, and constituted a perpetual source of embarrassment, in the class of actions to which they applied, especially as the general impression of the profession was that they were superseded by the Code of Procedure.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 N. Y., 292.] PART II. surety or trustee to recover costs, etc. 1916. A surety, including a drawer or indorser, may recover, Action by 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. 1859, 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 langnage 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.] 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, io 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 of associa tions of more per 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 seven or any cause of action, for or upon which all the associates may sons. maintain such an action or special proceeding, by reason of their interest or ownership therein, either jointly or in common. An 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, 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 association, 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. Sce 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 incapaci tated, 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 presi dent 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. son; nor does the docketing thereof bind his real property or chattels real. Where such a judgment is for a sum of money, an execution issued thereupon must require the sheriff to satisfy the same, out of any personal property belonging to the association, or owned jointly or in common, by all the members thereof, omitting any direction respecting real property. [Id., § 3 and part of § 1, remodelled, without essential change; unless the special provision, excluding the real property of the association from the lien of a money judgment, is new. The language of §1 is broad enough to include such property; but if such was its true construction it required to be altered; for the provisions relating to docketing a judgment, and the effect thereof, would expose innocent third persons to injustice, if a judgment, which names only the officer, can be made a lien upon real property, which stands in the names of the individual members Section 1923 renders this article permissive merely; if a creditor wishes to reach real property, he should sue the members. As to contribution among the associates, see Morrissey v. Weed, 12 Hun, 491.] PART II. quent against members. 1922. Where an action has been brought against an officer, Subseor a counterclaim has been made, in an action brought by an officer, action as prescribed in the last three sections, another action, for the same cause, 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, 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 |