from all liability incurred by reason of his connection with the partnership. An instrument, specified in this section, does not impair the creditor's right of action against any other joint debtor, or his right to take any proceeding against the latter; unless an intent to release or exonerate him, appears affirmatively upon the face thereof. § 1943. An instrument, specified in the last section, is deemed a satisfaction-piece, for the purpose of discharging, as prescribed in section one thousand two hundred and sixty of this act, the docket of a judgment, recovered upon an indebtedness released or discharged thereby, as far as the judgment affects the compounding debtor. Where the docket of a judgment is discharged thereupon, a special entry must be made upon the docket, to the effect, that the judgment is satisfied, as to the compounding debtor only. 1944. Where a joint debtor has thus compounded, a joint debtor, who has not compounded, may make any defence or counterclaim, or have any other relief, as against the creditor, to which he would have been entitled, if the composition had not been made. He may require the compounding debtor to contribute his ratable proportion of the joint debt, or of the partnership debts, as the case may be, as if the latter had not been discharged. 1945. In an action brought against one or more persons, engaged, as a joint-stock association, partnership, or otherwise, in the periodical transportation of passengers or property, an objection, to any of the proceedings, cannot be taken by a person properly made a defendant, on the ground that the plaintiff has joined with him, as a defendant, a person not jointly engaged with him in that business, or on the ground that the plaintiff has failed so to join with him a person so jointly engaged, unless the persons so engaged have, at least thirty days before the commencement of the action, filed in the clerk's office of each county, in which they transport passengers or property, a statement, showing the names of all of them. A statement so filed, is conclusive, for the purposes specified in this section, as against the persons filing it, until thirty days after filing, in like manner, a new statement, showing a change of interest. 1946. Where, for any cause, one or more partners have not been joined as defendants in an action upon a partnership liability, and final judgment has been taken against the persons made defendants therein, the plaintiff, if the judgment remains unsatisfied, may maintain a separate action upon the same demand, against each omitted partner, setting forth in the complaint the facts specified in this section, as well as the facts constituting his cause of action upon the demand. § 1947. In an action brought to dissolve a partnership, or for an accounting between partners, or affecting the con tinued prosecution of the business, the court may, in its discretion, by order, authorize the partnership business to be continued, during the pendency of the action by one or more of the partners, upon their excenting and filing with the clerk an undertaking, in such a sum and with such sureties as the order prescrites, to the effect that they will obey all orders of the court, in the action, and perform all things which the judgment therein requires them to perform. The court may in pose such other conditions, as it deems proper, and it may in its discretion at any time thereafter require a new undertaking to be given. The court may also ascertain the value of the partnership property, and of the interest of the respective partners by a reference or otherwise, and may direct an accounting between any of the partners; and the judzment may make quch provision for the payment to the retiring partners for their interest, and with respect to the rights of ereditors, the title to the partnership property, and otherwise, as justice requires, with or without the appointment of a receiver, or a sale of the partnership property. CHAPTER XVI. ACTIONS IN BEHALF OF THE PEOPLE, AND SPECIAL PROCEEDINGS INSTITUTED, THEIR BEHALF, BY STATE WRIT. TITLE I.-ACTIONS IN BEHALF OF THE PEOPLE, IN TITLE II.—SPECIAL PROCEEDINGS INSTITUTED BY STATE WRIT. TITLE I. Actions in behalf of the people. ARTICLE 1. Action against the usurper of an office or franchise. ACTION 2. Action to vacate letters patent. 3. Action for a fine, penalty, or forfeiture, or upon a forfeited recognizance. 4. Certain actions, founded upon the spoliation, or other misappropriation of public property. 5. Action to recover property escheated, or forfeited for treason. 6. Miscellaneous provisions, relating to actions, etc., in behalf of the people. AGAINST ARTICLE FIRST. § 1948. Attorney - General THE USURPER OF AN OFFICE OR maintain action. may 1949. Proceedings when complaint names rightful incumbent. 1950. Action triable by jury. 1951. Assumption of office by person entitled. 27 Hun, 528. 101 N.Y.539. 128. N.Y. 129 128 N. Y. 129. § 1948. 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 office in a domestic corporation. 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. § 1949. 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 five hundred and forty-nine 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. 1950. 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 nine hundred and sixty-eight of this act, and without procuring an order, as prescribed in section nine hundred and seventy of this act. 1951. 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. S 1952. 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 proceedings 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. § 1953. [Am'd 1884.] Where final judgment has been 101 N. Y.539 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 con sequence of the defendant's usurpation, intrusion into, un lawful holding, or exercise of the office. 1954. 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. 1955. In an action, brought as prescribed in sub. division third of section one thousand nine 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 enjoined have acted as a corporation, within the State, without being duly incorporated, or have usurped, exercised, or claimed, within the State, a franchise, liberty, or corporate right, not granted to them by law. The provisions of title second of chapter seventh of this act apply to such a temporary injunction, and the proceedings thereupon, except where special 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. 1956. In any other action, brought as prescribed in 128 N.Y. 129 this article, where a defendant is adjudged to be guilty of usurping 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. ARTICLE SECOND. ACTION TO VACATE LETTERS-PATENT. § 1957. When Attorney - General § 1959. Copy of judgment roll to may maintain action. 1958. Action triable by jury. be filed, etc. 1960. Transcript to be sent to county clerk, etc. § 1957. 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. 2. Where they were issued in ignorance of a material fact, or through mistake. 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 same. 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. § 1958. 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 nine hundred and sixty-eight of this act, and without procuring an order, as prescribed in section nine hundred and seventy of this act. 1959. 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. § 1960. Immediately after making the entry prescribed in the last section, the secretary of State must transmit a certified transcript thereof to the clerk, or the register, as the case requires, of each county, in which the real property affected by the judgment is situated. The clerk or register must file it; and, if the letters-patent are recorded in his office, he must note the contents of the transcript in the margin of the record. |