1884. Collection of execution when a defence to subsequent action.-It is a defence by a surety, against whom an action is brought upon a sheriff's official bond, that he, or any other surety or sureties, have been or will be compelled, for want of sufficient property of the sheriff, to pay, upon one or more judgments recovered against him or them, upon the same bond, an aggregate amount, exclusive of costs, officers' fees, and expenses, equal to the sum for which the defendant is liable, by reason of the bond. It is a partial defence, that the difference between the aggregate amount, so paid, or to be paid, and the sum for which the defendant is thus liable, is less than the amount of the plaintiff's demand. Id., 12, 13 and 14.

1885. When claimants entitled to ratable distribution. If the aggregate amount of the liabilities, which might be recovered by actions upon the sheriff's official bond, as prescribed in this article, exceeds the sum for which the sureties are liable, the court must, upon the application of a person who has obtained leave to prosecute the bond, made upon notice to the plaintiff's attorney, in each action then pending upon the sheriff's official bond, and in each uncollected judg ment recovered thereupon, direct and provide for the distribution of the money, collected out of the property of the sureties, among the persons in favor of whom the liabilities have accrued, in proportion to the amount which each one is entitled to recover; to be ascertained by a reference, or in such other manner as the court directs. For the purposes of the motion an order may be made by a judge, forbidding the payment to the plaintiff in any action, of the sum collected or to be collected by virtue of a judgment therein. But this section does not authorize the court to compel a plaintiff to refund any money, collected and received by him, in good faith, before service of notice of such an order.

New. See 17 and 18.

§ 1886. Action upon a surrogate's bond.-Where a surrogate, or an officer acting as surrogate, is guilty of any actionable default or misconduct in his office, the person injured thereby may apply for leave to prosecute the delinquent's official bond.

Id., 19 and 20; see L. 1858, ch. 213 (3 Edm. 340).

1887. Action upon a county treasurer's bond.Where a certified copy of the order or judgment of a court, directing a county treasurer to pay or deliver to one or more persons designated therein any money, stocks, securities, or other investments held by him, subject to the direction of that court, is served upon the county treasurer, if he fails to obey the direction, the person injured thereby may apply for leave to prosecute his official bond. Service upon a county treasurer, as required by this section, may be made personally, or by leaving the paper, either at his office, during his absence therefrom, with a person of suitable age and discretion, having charge of the office, or at his residence, or his last residence within the county, with a person of suitable age and discretion.

See L. 1874, ch. 324, 1 and 2 (9 Edm. 966).

1888. Actions upon official bonds of other officers. Where a public officer is required to give an official bond to the people, and special provision is not made by law for the prosecution of the bond, by or for the benefit of a person who has sustained, by his default, delinquency or misconduct, an injury, for which the sureties upon the bond are liable, such a person may apply for leave to prosecute the delinquent's official bond.

New. See id.; K. S., 21-27. Harris r. Hardy, 3 Hill, 393: Higgins v. Allen, 6 How. 31'; N. Y. C. Ins. Co. v. Safford, 10 id. 344; Kelly v. Breusing. 33 Barb. 123; Cuddeback v. Kent, 5 Paige, 92; Salisburgh . Van Housen, 3 Hill, 77; Davis v. Kruger, 4 E. D. Smith, 350; People v. Norton. 9 N. Y. 176; Fuller v. Fullerton, 14 Barb. 59; Bradley . Ward, 38 N. Y. 402; Hanger v. Bernstein, 7 Daly, 340; Ex parte Van Epps, 56 N. Y. 599.

1889. Actions, etc., under the last three sections regulated. Sections 1880 to 1885 of this act, both inclusive, govern an application, made as prescribed in either of the last three sections, and each action brought pursuant to an order made thereupon, as if the delinquent officer and his sureties were named therein instead of the sheriff and his sureties.

New in form but derived from prior sections of R. S.

& 1890. Receivers, etc., deemed public officers.— A receiver, an assignee of an insolvent debtor, or a trustee or other officer, appointed by a court or a judge, is a public officer, within the meaning of the last section but one; but where he was appointed by or pursuant to the

order of a court, or in a special proceeding specified in title twelfth of chapter seventeenth of this act, the application for leave to prosecute his official bond must be made to the court by which, or pursuant to whose order, he was appointed, or in which the judgment was rendered, as the case may be. An action, brought as prescribed in this section, must be brought in the court to which application is made for leave to bring it.

New.

1891. Demand of money; when necessary before application. Where the default, by reason of which an application for leave to prosecute an official bond is made, as prescribed in this article, consists of the nonpayment of money, and special provision is not otherwise made by law, the applicant must prove a demand of the money from the officer, or that a demand cannot be made, with due diligence. But such proof is not necessary where the applicant has recovered a judg ment against the officer.

New. Rhinelander v. Mather. 5 Wend. 102; see Crane v. Dygert, 1 Wend. 534; s. c., 4 id. 675; see Nelson v. Kerr, 59 N. Y. 224.

1892. Application may be made ex parte.-An ap plication for leave to prosecute an official bond, as prescribed in this article, may be made without notice; but in that case the officer, or either of his sureties, may apply, upon notice, to vacate an order permitting the applicant to maintain an action, upon any ground, showing that it ought not to have been granted.

New. Matter of Chamberlain, 28 How. 1; s. c., 18 Abb. 103; 42 Barb. 281; see Ex parte Van Epps, 56 N. Y. 599.

ARTICLE THIRD.

ACTION BY A PRIVATE PERSON FOR A PENALTY OR FORFEITURE.

SEC. 1893. Action by person specially aggrieved.

1894. Action by common Informer."

1895. Id.; service of sunimons.

1896. Id. when not barred by a collusive recovery.

1897. Indorsement upon summons.

1898. When part of a penalty may be recovered.

§ 1893. Action by person specially aggrieved.— Where a penalty or forfeiture is given by a statute, to a person aggrieved by the act or omission of another,

the person to whom it is given may, if it is pecuniary, maintain an action to recover the amount thereof; or, if it consists of the forfeiture of a chattel, he may maintain an action to recover the chattel, or its value, or other damages, as the case requires.

2 R. S. 480, 31 (2 Edm. 502), amended. Thompson e. Howe, 46 Barb. 287, 289; Conley v. Parmer, 2 N. Y. 182; s. c., 4 Denio, 374.

1894. Action by common informer. Where a penalty or forfeiture is given, by a statute, to any person who sues therefor, an action to recover it may be maintained by any person in his own name; but the action cannot be compromised or settled without the leave of the court in which it is brought.

Id., 5 and 6. Seward r. Beach, 29 Barb. 239; see 387, ante; Beadleston v. Sprague, 6 Johns. 101.

§ 1895. Id.; service of summons.-The summons in an action, brought as prescribed in the last section, can be served only by an officer authorized by law to collect an execution, issued out of the same court. The summons, when issued, cannot be countermanded by the plaintiff before the service thereof; and, immediately after it has been served, the officer who served it must file it, with his certificate of service, in the office of the clerk, or deliver it, with a like certificate, to the magistrate by whom it was issued, as the case requires. Id., part of 6. See McCoun v. N. Y. C. & II. R. R. R. Co., 50 N. Y. 176.

1896. Id.; when not barred by a collusive recovery. In an action to recover a penalty or forfeiture, given by a statute, brought by any person, other than the person aggrieved or a public officer, the plaintiff may recover, notwithstanding the recovery of a judg ment, for or against the defendant, in an action brought therefor by another person, if he establishes that the former judgment was recovered collusively and fraudulently.

Id., 14.

1897. Indorsement upon summons.-- In an action to recover a penalty or forfeiture, given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of the summons, a general reference to the statute must be indorsed upon the copy of the summons so delivered, in the following form: "Accord

ing to the provisions of," etc.; adding such a description of the statute, as will identify it with convenient certainty, and also specifying the section, if penalties or forfeitures are given, in different sections thereof, for different acts or omissions.

Id., 7. Cox v. N. Y. C. & H. R. R. R. Co., 61 Barb. 615; People v. Bull, 42 N. Y. Super. Ct. (J. & S.) 19; Bissell v. N. Y. C. & H. R. R. R. Co., 67 Barb. 385; see Abbott v. N. Y. C. R. R. Co., 1 Sheld. 278: Andrews r. Harrington, 19 Barb, 343; Marselis v. Seaman, 21 id. 319; Perry e. Tynen, 22 Barb. 137: Commissioners of Excise v. Doherty, 16 How. Pr. 46; Sprague v. Irvin, 27 id. 51.

1898. When part of a penalty may be recovered. Where a statute gives a pecuniary penalty or forfeiture, not exceeding a specified sum, an action may be maintained to recover the sum specified; and the court, jury, or referee, by which or by whom the issues of fact are tried, or, where judgment is taken by default for failure to appear or plead, the damages are ascertained, may award to the plaintiff the whole sum, or such a part thereof, as he or it deems proportionate to the offence.

Id., 15, amended. Lammond v. Volans, 14 Hun, 263.

ARTICLE FOURTH.

CERTAIN ACTIONS TO RECOVER DAMAGES FOR WRONGS.

SEC. 1899. Civil and criminal prosecutions not merged. 1900. Action for suing, etc., in name of another.

demeanor.

Made also a mis

1901. Treble and other increased damages to be recovered.

1902. Action for causing death by negligence, etc.

1903. Id.; for whose benefit.

1904. Id. amount of recovery.

1905. Next of kin defined.

1906. Action for slander of a woman.

1907. When action for libel cannot be maintained.

1908. The last section qualified.

1899. Civil and criminal prosecutions not merged. - Where the violation of a right admits of a civil and also of a criminal prosecution, the one is not merged in the other.

Code of Proc., 27. Gordon v. Hostetter, 37 N. Y. 105.

1900. Action for suing, etc., in name of another. Made also a misdemeanor. If a person, vexatiously or maliciously, in the name of another but without the latter's consent, or in the name of an unknown person,