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against the persons filing it, until thirty days after fil. ing, in like manner, a new statement, showing a change of interest.
L. 1836, ch. 385 (4 Edm. 621), amended.
§ 1946. When partner not sued remains liable.Where, for any cause, one or more partners have not been joined as defendants in an action upon a partner ship 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.
Code of Proc., 136, subd. 4, amended. Crandall v. Beach, 7 How. 271.
§ 1947. Continuance of partnership business during action for accounting, etc.- In an action brought to dissolve a partnership, or for an accounting between partners, or affecting the continued 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 executing and filing with the clerk an undertaking, in such a sum and with such sureties as the order prescribes, 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 impose 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 judgment may make such provision for the payment to the retiring partners, for their interest, and with re spect to the rights of creditors, the title to the partner ship property, and otherwise, as justice requires, with or without the appointment of a receiver, or a sale of the partnership property.
ACTIONS IN BEHALF OF THE PEOPLE AND SPECIAL PROCEEDINGS INSTITUTED IN THEIR BEHALF, BY STATE WRIT.
TITLE I.- ACTIONS IN BEHALF OF THE PEOPLE.
Actions in behalf of the people.
ARTICLE 1. Action against the usurper of an office or franchise. 2. Action to vacate letters-patent.
3. Action for a fine, penalty or forfeiture, or upon a forfeltet
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.
ACTION AGAINST THE USURPER OF AN OFFICE
So. 1948. Attorney-general may maintain action.
1949. Proceedings when complaint names rightful incumbent.
1951. Assumption of office by person entitled.
1952. Proceedings to obtain books and papers.
1953. Damages; how recovered.
1954. One action against several persons.
1955. When injunction may be granted.
1956. Final judgment in action for usurping office, etc.
§ 1948. Attorney-general may maintain action. 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 corpora tion, within the State, without being duly incorporated; or exercises within the State, any corporate rights, privileges or franchises, not granted to them by the law of the State.
Code of Proc., 8432; 2 R. S. 581, 28 (2 Edm. 603). People v. New York, 32 Barb. 35; s. c, 19 How. Pr. 135; 9 Abb. Pr. 253; People v. Att'y Gen'1, 22 Barb. 114; s. c., 3 Abb. Pr. 13: 13 How. 179; People v. Hills, L Lans. 202; People v. Albany R. R. Co., id. 308; People v. Tobacco Manuf'g Co., 42 How. Pr. 162; People v. Ingersoll, 58 N. Y. 1; People v Hall, Ct. App., Feb. 1880, 21 Aib. L. J. 433; People v. Fairchild, 67 N. Y.
1949. Proceedings when complaint names rightful incumbent. 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 there upon, 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 of Proc., 28 435 and 436; 2 R. S. 582, 28 30 and 31 (2 Edm. 603), amended, People v. Thatcher, 55 N. Y 525; People v. Albany and Susquehanna R R. Co., 57 id. 161; City of Buffalo v. Mackey, 15 Hun, 204; N. Y. Juve nile Guardian Society v. Rosevelt, 7 Daly, 188; People v. Ferris, 16 Hun 219: 1984, post; see People v. Snediker, 3 Abb. 233; People v. Clark, N. Y. 349; People v. Cook, 8 id.
§ 1950. Action 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.
New. People v. Albany and Susquehanna R. R. Co., 57 N. Y. 161; Davis v. Morris, 36 id. 569; Mann v. Fairchild, 2 Keyes, 111; Bradley v. Aldrich, 40 N. Y. 511.
1951. Assumption of office by person entitled.-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 con trol, of the defendant, belonging to the office from which the defendant has been so excluded.
Code of Proc., 437: 2 R. S. 582, 32 (2 Edm. 603). People v. Murray, 73 N. Y. 535; In re Welch, 7 How. 282; In re Cobee, 8 id. 367.
81952. Proceedings to obtain books and papers.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 neg lects to deliver the official books or papers to his suc
Code of Proc., 138, and R. S., id., 33, see 1323, ante. People ex rel. Daily v. Livingston, Ct. App., Feb. 1880, 21 Alb. L. J. 174; Re Bartlett How 414; Re Baker, 11 id. 418; People v. Peabody, 26 Barb. 437; Con over v. Devlin, id. 429; Welch v. Cook, 7 How. Pr. 282; People v. Cono ver. 6 Abb. Pr. 220.
1953. [Amended 1884.] Damages; how recovered. 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 defend. ant, the damages which he has sustained in consequence of the defendant's usurpation, intrusion into, unlawful holding, or exercise of the office. See 6 Wall. 291.
People v. Ballou, 12 Wend⚫
Code of Proc. 8 439: also R. S., id., 22 34-38. 277; see People v. Snedeker, 3 Abb. Pr. 233.
1954. One action against several persons.-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.
Co. Proc., § 440; R. S., id., 2 45.
1955. When injunction may be granted.-In an action, brought as prescribed in subdivision third of sec tion 1948 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 pro vision is otherwise made in this title. For that purpose, the injunction order is deemed to have been granted as prescribed in section 603 of this act.
2 R. S. 462, 31 and part of 32 (2 Edm. 482). 1948, subd. 3, ante.
1956. Final judgment in action for usurping office etc.-In any other action, brought as prescribed in 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 judg ment 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 execu tion 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 of Proc. 441; also, see, 2 R. S. 585, § 48 (2 Edm. 606). See People . Snedeker, 3 Abb. Pr. 233.