CHAP. XI. and 384, upon the plaintiff's filing such bond and warrant of before July attorney, and a statement signed and verified by himself, in 1, 1848. the form prescribed by section 382. 12 How. P. R., 156; 1 Ab., 357. publication how com $425. The time for publication of legal notices shall be Time for computed so as to exclude the first day of publication, and of notices, include the day on which the act or event of which notice puted. is given, is to happen, or which completes the full period required for publication. other states ments, how $ 426. Printed copies in volumes, of statutes, code, or other Laws of written law, enacted by any other state, or territory, or foreign and governgovernment purporting or proved to have been published by proved. the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts and judicial tribunals of such state, territory, or government, shall be admitted by the courts and officers of this state, on all occasions, as presumptive evidence of such laws. The unwritten, or common law of any other state, or territory, or foreign government, may be proved as facts by parol evidence; and the books of reports of cases adjudged in their courts, may also be admitted as presumptive evidence of such law. 1 Hilt., 37; 47 B., 554. TITLE XIII. ACTIONS IN PARTICULAR CASES. CHAPTER I. Actions against foreign corporations. II. Actions in place of scire facias, quo warranto, and of informations in III. Actions for the partition of real property. IV. Actions to determine conflicting claims to real property, and for waste V. General provisions relating to actions concerning real property. CHAPTER I. ACTIONS AGAINST FOREIGN CORPORATIONS. SEC. 427. Where and by whom brought. by whom S427. An action against a corporation, created by, or Where and under the laws of any other state, government or country, brought. may be brought in the supreme court, the superior court of the city of New York, or the court of common pleas for the city and county of New York, in the following cases: 1. By a resident of this state, for any cause of action; 30 B., 161; 26 B., 151; 18 How. P. R., 218; 17 How. P. R. 17; 15 How. PART III Scirc facias and quo warranto CHAPTER II. ACTIONS IN PLACE OF SCIRE FACIAS, QUO WARRanto, and oF INFORMA· SEC. 428. Scire facias, and quo warranto abolished and this chapter substituted. 429. Action may be brought by attorney-general to vacate a charter, by direction of legislature. 430. Action to annul a corporation, when and how brought by attorney-general, by leave of supreme court. 431. Leave, how obtained. 432. Action upon information or complaint, of course. 433. Action, when and how brought to vacate letters patent. 434. Relator, when to be joined as plaintiff. 435. Complaint and arrest of defendant, in action for usurping an office. 436. Judgment in such action. 437. Assumption of office, &c., by relator, when judgment is in his favor. 438. Proceedings against defendant, on refusal to deliver books or papers. 440. One action against several persons claiming office or franchise. 441. Penalty for usurping office or franchise, how awarded. 442. Judgment of forfeiture against a corporation. 443. Costs against corporation or persons claiming to be such, how collected. 444. Restraining corporation and appointment of receiver. 445. Copy of judgment roll against corporation, where to be filed. 446. Entry of judgment relating to letters patent in records of commissioners of land office. 447. Actions for forfeiture of property to the people. $428. The writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warabolished, ranto, are abolished, and the remedies, heretofore obtainable in those forms, may be obtained by civil actions, under the provisions of this chapter. But any proceeding heretofore commenced or judgment rendered, or right acquired, shall not be affected by such abolition. and this chapter substituted by attorney vacate a direction of 30 B., 591; 28 B., 68; 24 B., 272; 14 B., 400; 10 B., 130; 22 How. P. Action may. $429. An action may be brought by the attorney-general, be brought in the name of the people of this state, whenever the legislageneral to ture shall so direct, against a corporation, for the purpose of charter by vacating or annulling the act of incorporation, or an act relegislature. newing its corporate existence, on the ground that such act or renewal was procured, upon some fraudulent suggestion or concealment of a material fact, by the persons incorporated, or by some of them, or with their knowledge and consent. poration, and how 28 B., 68; 7 Ab., 175; 1 Ab., 357. Action to S430. An action may be brought by the attorney-general, annal a cor- in the name of the people of this state, on leave granted by when the supreme court, or a judge thereof, for the purpose of brought by vacating the charter or annulling the existence of a corporation, other than municipal, whenever such corporation shall, 1. Offend against any of the provisions of the act or acts creating, altering or renewing such corporation; or attorney general by leave of supreme court. 2. Violate the provisions of any law, by which such corporation shall have forfeited its charter, by abuse of its powers; or 3. Whenever it shall have forfeited its privileges or franchises, by failure to exercise its powers; or 4. Whenever it shall have done or omitted any act, which amounts to a surrender of its corporate rights, privileges, and franchises; or 5. Whenever it shall exercise a franchise or privilege, not conferred upon it by law. And it shall be the duty of the attorney-general, whenever he shall have reason to believe, that any of these acts or omissions can be established by proof, to apply for leave, and upon leave granted, to bring the action in every case of public interest, and also in every other case in which satisfactory security shall be given, to indemnify the people of this state, against the costs and expenses to be incurred thereby. CHAP. XL obtained. 28 B., 68; 20 B., 522; 12 How. P. R., 187; 3 Ab., 134; 18 Ab., 383. S431. Leave to bring the action may be granted, upon the Leave, how application of the attorney-general; and the court or judge may, at discretion, direct notice of such application to be given to the corporation or its officers, previous to granting such leave, and may hear the corporation in opposition thereto. 20 B., 523; 5 Ab., 67. upon infor complaint,! § 432. An action may be brought by the attorney-general Action in the name of the people of this state, upon his own infor- mation or mation, or upon the complaint of any private party, against of course. the parties offending in the following cases: 1. When any person shall usurp, intrude into, or unlawfully hold or exercise, any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state; or 2. When any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall make a forfeiture of his office; or 3. When any association, or number of persons, shall act within this state as a corporation, without being duly incorporated. when and 30 B., 591; 25 B., 217, 254; 20 B., 523; 12 B., 223; 19 How. P. R., 174; 14 How. P. R., 179; 11 Ab., 21; 6 Ab., 220; 3 Ab., 131; 38 B., 329. S433. An action may be brought by the attorney-general, Action, in the name of the people of this state, for the purpose of how vacating or annulling letters patent, granted by the people of this state, in the following cases: 1. When he shall have reason to believe that such letters patent were obtained by means of some fraudulent suggestion or concealment of a material fact, made by a person to whom the same were issued or made, or with his consent or knowledge; or 2. When he shall have reason to believe, that such letters patent were issued through mistake, or in ignorance of a material fact; or brought to vacate letters patent. PART III. Relator, 3. When he shall have reason to believe that the patentee, or those claiming under him, have done or omitted an act in violation of the terms and conditions on which the letters patent were granted, or have, by any other means, forfeited the interest acquired under the same. 30 B., 546; 11 B., 341; 10 B., 120. 8434. When an action shall be brought by the attorney-general, by when to be virtue of this chapter, on the relation or information of a person having joined as plaintiff. Complaint and arrest of defend ant, in action for usurping an office. Judgment in such action. Assumption of an interest in the question, the name of such person shall be joined with the people as plaintiff, and in every such case the attorney-general may require as a condition for bringing such action, that satisfactory security shall be given to indemnify the people of this state against the costs and expenses to be incurred thereby; and in every case where such security is given, the measure of the compensation to be paid by such person or persons to the attorney-general, shall be left to the agreement of the parties, express or implied. As amcnded by Laws of 1867, ch. 781. 12 N. Y., 436; 23 B., 304; 16 B., 373; 2 Ab., 421. § 435. Whenever such action shall be brought against a person for usurping an office, the attorney-general, in addition to the statement of the cause of action, may also set forth in the complaint, the name of the person rightfully entitled to the office, with a statement of his right thereto, and in such case, upon proof by affidavit, that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order may be granted by a judge of the supreme court, for the arrest of such defendant, and holding him to bail, and thereupon he shall be arrested and held to bail, in the manner, and with the same effect, and subject to the same rights and liabilities, as in other civil actions, where the defendant is subject to arrest. 25 B., 75; 24 B., 273; 14 B., 400; 4 Ab., 341. § 436. In every such case, judgment shall be rendered upon the right of the defendant, and also upon the right of the party, so alleged, to be entitled, or only upon the right of the defendant, as justice shall require. 16 B., 373; Ab., 225; 27 N. Y., 68. § 437. If the judgment be rendered upon the right of the person so office, &c., alleged to be entitled, and the same be in favor of such person, he shall by relator, be entitled, after taking the oath of office and executing such official when judg ment is in bond as may be required by law, to take upon himself the execution of the office, and it shall be his duty, immediately thereafter, to demand of the defendant in the action, all the books and papers in his custody or within his power, belonging to the office, from which he shall have been excluded. his favor. Procced defendant, 7 How. P. R., 287; 7 Ab., 175; 6 Ab., 224. § 438. If the defendant shall refuse or neglect to deliver over such ings against books or papers, pursuant to the demand, he shall be deemed guilty on refusal of a misdemeanor, and the same proceedings shall be had, and with the same effect, to compel delivery of such books and papers as are prescribed in article five, title six, chapter six, of the first part of the Revised Statutes. to deliver books or papers. Damages, 6 Ab., 224. 439. If judgment be rendered upon the right of the perrecovered. son so alleged to be entitled, in favor of such person, he may how recover, by action, the damages which he shall have sustained by reason of the usurpation by the defendant of the office, from which such defendant has been excluded. 25 B., 75; 3 Ab., 238. CHAP. XL against $440. Where several persons claim to be entitled to the One action same office or franchise, one action may be brought against several perall such persons, in order to try their respective rights to such ing office or office or franchise. 20 B., 522; 5 Ab., 180. sons claim franchise. asurping franchise, $ 441. When a defendant, whether a natural person or a cor- Penalty for poration, against whom such action shall have been brought, office or shall be adjudged guilty of usurping or intruding into, or how unlawfully holding or exercising any office, franchise or privi- awarded. lege, judgment shall be rendered, that such defendant be excluded from such office, franchise or privilege, and also that the plaintiff recover costs against such defendant. The court may also, in its discretion, fine such defendant a sum not exceeding two thousand dollars, which fine, when collected, shall be paid into the treasury of the state. 20 B., 522; 6 Ab., 224; 3 Ab., 238. of forfeit a corpora S442. If it shall be adjudged, that a corporation, against Judgment which an action shall have been brought, pursuant to this ure against chapter, has by neglect, abuse, or surrender, forfeited its cor- tion porate rights, privileges and franchises, judgment shall be rendered, that the corporation be excluded from such corporate rights, privileges and franchises, and that the corporation be dissolved. 20 B., 523; 18 Ab., 383. against cor or persons S443. If judgment be rendered in such action, against a Costs corporation or against persons claiming to be a corporation, poration the court may cause the costs therein to be collected, by exe-claiming to cution against the persons claiming to be a corporation, or by how col attachment or process against the directors or other officers of lected. such corporation. 20 B., 522. be such, corporation pointment $444. When such judgment shall be rendered against a Restraining corporation, the court shall have the same power to restrain and apthe corporation, to appoint a receiver of its property, and to of receiver.. take an account, and make distribution thereof among its creditors, as are given in article three, title four, chapter eight, of the third part of the Revised Statutes; and it shall be the duty of the attorney-general, immediately after the rendition of such judgment, to institute proceedings for that purpose. 24 B., 273: 4 Ab., 341; 18 Ab., 383. judgment where $445. Upon the rendition of such judgment against a cor- Copy of poration, or for the vacating or annulling of letters patent, it roll against shall be the duty of the attorney-general to cause a copy of corporation the judgment roll to be forthwith filed in the office of the bealed. secretary of state. 20 B., 523. |