husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of administration. But the plaintiff may deduct there from the expenses of the action, and his commissions upon the residue; which must be allowed by the surrogate, upon notice, given in such a manner and to such persons, as the surrogate deems proper.

id., 2, as amended by L. 1849 and 1870.

§ 1904. [Amended, 1895.] Id.; amount of recovery. The damages awarded to the plaintiff may be such a sum as the jury upon a writ of inquiry, or upon a trial, or, where issues of fact are tried without a jury, the court or the referee, deems to be a fair and just compensation for the pecuniary injuries, resulting from the decedent's death, to the person or persons, for whose benefit the action is brought. When final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded, interest thereupon from the decedent's death, and include it in the judgment. The inquisition, verdict, report or decision, may specify the day from which interest is to be computed; if it omits so to do, the day may be determined by the clerk, upon affidavits.

In effect Jan. 1, 1896; L. 1895, ch. 946.

Id., remainder of 2, amended by L. 1849, ch. 256; L. 1870, ch. 78 (7 Edm. 591). Ihl v. Forty-second St., etc., R.R. Co., 47 N. Y. 317; Sauter v. N. Y. C. & H. R. R. R. Co., 66 id. 50; McGovern v. N. Y. & H. R. R. Co., 67 id. 418; Cornwall v. Mills, 44 N. Y. Super. Ct. (J. & S.) 45.

$ 1905. Next of kin defined. The term, "next of kin," as used in the foregoing sections, has the meaning specified in section 1870 of this act.

New. See 1870, ante. Drake v. Gilmore, 52 N. Y. 389.

§ 1906. Action for slander of a woman.- In an ac tion of slander, brought by a woman, for words imputing unchastity to her, it is not necessary to allege or prove special damages. If the plaintiff is married, the damages recovered are her separate property.

L. 1871, ch. 219, 1 (9 Edm. 67); % 450, ante. Distin v. Rose, 69 N. Y. 122.

§ 1907. When action for libel cannot be maintained. -An action, civil or criminal, cannot be maintained against a reporter, editor, publisher, or proprietor of a

newspaper, for the publication therein of a fair and true report of any judicial, legislative, or other public and official proceedings, without proving actual malice in making the report.

L. 1854, ch. 130, 22 1 and 2 (5 Edm. 160). Ackerman v. Jones, 37 N. Y. Super Ct. (5 J. & S.) 42.

§ 1908. The last section qualified. The last section f does not apply to a libel, contained in the heading of the report; or in any other matter, added by any person concerned in the publication; or in the report of any thing said or done, at the time and place of the public and official proceedings, which was not a part thereof. L. 1854, ch. 130, 21 and 2. Edsall v. Brooks, 17 Abb. Pr. 221; Sanford t. Bennett, 24 N. Y. 20.

ARTICLE FIFTH.

MISCELLANEOUS ACTIONS AND RIGHTS OF ACTION.

SEC, 1909. When transferee of claim or demand may sue. Rights of de fendant, etc.

1910. What claims or demands may be transferred.

1911. Id.; cause of action for usury.

1912. Judgment; when assignable.

1913. Action upon judgment regulated.

1914. Ancillary action for discovery abolished.

1915. Action upon a penal bond.

1916. Action by surety or trustee to recover costs, etc.
1917. Action upon lost negotiable paper.

1918. The last section qualified.

§ 1909. When transferee of claim or demand may sue. Rights of defendant, etc.-Where a claim or de mand can be transferred, the transfer thereof passes an interest, which the transferee may enforce by an action or special proceeding, or interpose as a defence or counterclaim, in his own name, as the transferor might have done; subject to any defence or counterclaim, existing against the transferor, before notice of the transfer, or against the transferee. But this section does not apply, where the rights or lia bilities of a party to a claim or demand, which is transferred, are regulated by special provision of law; nor does it vary the rights or liabilities of a party to a negotiable instrument, which is transferred.

New. Ante, 502.

1910. What claims or demands may be transferred,

-Any claim or demand can be transferred, except in one of the following cases:

1. Where it is to recover damages for a personal injury, or for a breach of promise to marry.

2. Where it is founded upon a grant, which is made void by a statute of the State; or upon a claim to or interest in real property, a grant of which, by the transferor, would be void by such a statute.

3. Where a transfer thereof is expressly forbidden by a statute of the State, or of the United States, or would contravene public policy.

See Code of Proc., 112. Getty v. Devlin, 70 N. Y. 504; Freund v. Imp. and Traders' Nat. Bank, 76 id. 652; DeLaney v. Stearns, 66 id. 157; Gray v. Green, 12 Hun, 598; Drake v. Smith, id. 532: Mayer v. Mode 14 id. 155; Maule v. Crawford, id. 193; Seligman v. Dudley, id. 186; Rosepaugh v. Vreedenburgh, 16 id. 60; Pitcher v. Brayton, 17 id. 429; Krauser . Ruckel, id. 463; McBratney v. Rome, etc., R. R. Co., id. 385; Seymour v. Fellows, 44 N. Y. Super. Ct. (J. & S.) 124; Grand Rapids, etc., R. R. Co. v. Sanders, 17 Hun, 552; Baker v. Boice, 19 id. 344; Heermans v. Ellsworth, 64 N. Y. 159; Barton v. Spies, 73 id. 133; Comstock v. Hier, id. 269; Meech v. Stowe, 19 id. 26; see, also, McDougal v. Walling, 48 Barb. 364; Weyburn v. White, 22 id. 82; Zabriskie v. Smith, 13 N. Y.332; Graves v. Spier, 58 Barb. 349; see, also, 1 R. S. 730, 22 63 and 65 (1 Edm. 679, 680); Horner v. Wood, 23 N. Y. 355; Bliss v. Lawrence, 58 id. 442 Seymour . Fellows, 77 id. 178; Devlin v. New York, 6 id. 8; People v. Dayton, 50 How. 143; see, also, Mason v. Raplee, 66 Barb. 180.

§ 1911. Id.; cause of action for usury.-A cause of action to cancel, or otherwise affect, an instrument executed, or an act done, as security for a usurious loan or forbearance, can be thus transferred, where the instrument or act creates a specific charge upon property, which is also transferred in disaffirmance thereof, and not otherwise; but, in that case, the transferee does not succeed to the right, conferred by statute upon the borrower, to procure relief, without paying, or offering to pay, any part of the sum or thing loaned.

Wheelock v. Lee, 64 N. Y. 242; Tiedeman v. Ackerman," 16 Hun, 307; Freeman v. Auld, 44 N. Y. 50; Bullard v. Raynor, 30 id. 197; Schermer horn v. Talman, 14 id. 93; Bissell v. Kellogg, 60 Barb. 617; Carow v. Kelly, 59 id. 239; Boughton v. Smith, 26 id. 635; Post v. Bank of Utica, 7 Hill, 391.

§ 1912. Judgment, when assignable.-A judgment for a sum of money, or directing the payment of a sum of money, recovered upon any cause of action, may be transferred; but if it is vacated or reversed, the transfer thereof does not transfer the cause of action, unless the latter was transferable before the judgment was recov. ered.

New. Coughlin v. N. Y. C. & H. R. R. R. Co., 71 N. Y. 443; 20

Cutts v. Guild, 57 id. 229, and Waring v. Loder, 53 id. 581; also Ainslie v. Boynton, 2 Barb. 258.

§ 1913. Action upon judgment regulated.-Except in a case where it is otherwise specially prescribed in this act, an action upon a judgment for a sum of money, rendered in a court of record of the State, cannot be maintained, between the original parties to the judgment, unless, either

1. It was rendered against the defendant by default, for want of an appearance or pleading, and the summons was served upon him, otherwise than personally;

or

2. The court in which the action is brought has previously made an order, granting leave to bring it. Notice of the application for such an order must be given to the adverse party, or the person proposed to be made the adverse party, personally, unless it satisfactorily appears to the court, that personal notice cannot be given, with due diligence; in which case, notice may be given in such a manner as the court directs.

Code of Proc., 71; see, also. 3154. Hanover F. Ins. Co. v. Tomlin. son, 3 Hun, 630; s. c., 6 N. Y. Sup. Ct. (T. & C.) 127; see Force v. Gower, 22 How. Pr. 291; National Mech. B'nk'g Ass'n v. Usher, 1 Sweeney, 403; Lane v. Salter, 4 Rob. 239; Finch v. Carpenter, 5 Abb. 235; Lyon v. Manley, 10 id. 337; s. c., 32 Barb. 51; Thompson v. Sutphen, 2 E. D. Smith, 527; Wheeler v. Dakin, 12 How. 537; Tuffts v. Braisted, 1 Abb. 84; 8. c., 4 Duer, 607; Robins v. Wells, 26 Barb. 15: Vanderbilt v. Garrison, 3 Abb. 361; Church v. Van Buren, 55 How. Pr. 489; Goodyear v. Frissille, 57 How. Pr. 255.

§ 1914. Ancillary action for discovery abolished.An action cannot be maintained, to obtain a discovery under oath, in aid of the prosecution or defence of another action.

Code of Proc., 389, amended.

1915. Action upon a penal bond.-A bond in a penal sum, executed within or without the State, and containing a condition to the effect, that it is to be void, upon performance of any act, has the same effect, for the purpose of maintaining an action or special proceed. ing, or two or more successive actions or special proceedings thereupon, as if it contained a covenant to pay the sum, or to perform the act, specified in the condition thereof. But the damages to be recovered for a breach, or successive breaches, of the condition, cannot, in the aggregate, exceed the penal sum, except where the con

dition is for the payment of money; in which case, they cannot exceed the penal sum, with interest there. upon, from the time when the defendant made default in the performance of the condition.

New. See 2 R. S. 353, 82 12 and 13 (2 Edm. 364); also 2 R. S. 378, 379 (2 Edm. 392, 394). Lyon v. Clark, 8 N. Y. 148; Beers v. Shannon, 73 id.

292.

§ 1916. Action by surety or trustee to recover costs, etc.-A surety, including a drawer or indorser, may recover, 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 necessar. ily and in good faith, in the prosecution or defence, by the express or implied consent of the principal or bene ficiary, 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 agree‐ ment relating to those costs and expenses.

L. 1858, ch. 314, § 3 (4 Edm. 483); 15 Hun, 561.

1917. Action upon lost negotiable paper.-Where It appears, upon the trial of an action, that a negotiable promissory note or bill of exchange, upon which the 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 adverse party a written undertaking, in a sum fixed by the judge or the referee, not less than twice the amount of the note or bill, with at least two sure. ties, 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, 2875 and 76 (2 Edm. 423). Livingston v. Rogers, 2 Johns. Cas. 488; Blade v. Nolan, 12 Wend. 173; Rowley v. Ball, 3 Cow. 303; Frank v. Wessels, 64 N. Y. 155; Jacks v. Darrin, 3 E. D. Smith, 548, 557; DesArts v. Leggett, 16 N. Y. 582; Scott v. Meeker, 20 Hun, 163; DesArts v. Leggett, 5 Duer, 156; Wright v. Wright, 54 N. Y. 437: Rowley v. Ball, 3 Cow.303; Pintard v. Tackington, 10 Johns. 104; Howe Sewing Machine Co. v. Avery, 16 Hun, 555; Rogers v. Chicago & N. Western R. R. Co., 6 Abb. N. C. 253; Butler v. Glen Cove Starch Co., 18 Hun, 47.