1930. Successor may be substituted-In such an action or special proceeding, the court must, in a proper case, substitute a successor in office, in place of a person made a party in his official capacity, who has died or ceased to hold office; but such a successor shall not be substituted as a defendant, without his consent, unless at least fourteen days' notice of the application for the substitution, has been personally served upon him.

Id., 100 and 101, amended. People ex rel. Van Valkenburgh v. Sage, 3 How. Pr. 56; Hagadorn v. Raux, 72 N. Y. 583; see Manchester v. Her rington, 10 id. 164.

§ 1931. When execution against officer not to issue. -An execution cannot be issued upon a judgment for a sum of money, rendered against an officer in an action or special proceeding brought by or against him, in his official capacity, pursuant to this article; except where it is rendered against the trustee or trustees of a school district, or the commissioner or commissioners of highways of a town. In either of those cases, an execution may be issued against and be collected out of the prop erty of the officer, and the sum collected must be allowed to him, in the settlement of his official accounts, except as otherwise specially prescribed by law.

Id., 107 and 108, amended. Avery v. Slack, 19 Wend. 50; see People ex rel. v. Town Auditors, 75 N. Y. 316.

ARTICLE THIRD.

ACTIONS AND RIGHTS OF ACTION AGAINST AND BETWEEN JOINT DEBTORS.

SEC. 1932. Judgment against defendants Jointly indebted, when all are

not served.

1933. Effect of such judgment.

1934. Execution; indorsement thereupon.

1935. How collected.

1936. Judgment, how docketed; effect of docketing.

1937. Action to charge defendants not personally summoned, etc.

1938. Complaint in such action.

1939. Answer.

1940. Provisional remedies.

1941. Judgment.

1942. Joint debtors may compound separately. Mode and effect. 1943. Satisfying judgment.

1944. Rights of the debtors not released.

1945. Action against persons engaged in transportation.

1946. When partner not sued remains liable.

1947. Continuance of partnership business during action for account

ing, etc.

§ 1932. Judgment against defendants jointly in debted, when all are not served.-In an action, wherein the complaint demands judgment for a sum of money against two or more defendants, alleged to be jointly indebted upon contract, if the summons is served upon one or more, but not upon all of the defendants, the plaintiff may proceed against the defendant or defend ants, upon whom it is served, unless the court other wise directs; and, if he recovers final judgment, it may be taken against all the defendants thus jointly in debted.

Code of Proc., 136, subd. 1; see, also, 1935. Orr v. McEwan, 16 Hun, 625; see, also, Freeman v. Barrowcliffe, 44 N Y. Super. Ct. (J. & S.) 313; Nat. Bank of Ky. v. Wright, 5 Rob. 604: Stannard v. Mattice, 7 How. 43; Lahey v. Kingon, 13 Abb. 192; Niles v. Battershall, 2 Rob, 146; Speyers v. Fisk, 3 Hun, 706; Devine v. Duncan, 52 How. Pr. 446; Parker v. Jackson, 16 Barb. 33; see 1278, ante; Masten v. Blackwell, 8 Hun, 313.

§ 1933. Effect of such judgment.-Such a judgment is conclusive evidence of the liability of each defendant, upon whom the summons was personally served, or who appeared in the action. Where it is taken against a defendant, upon whom the summons was served by publication, or without the State, pursuant to an order for that purpose, it has the effect as against that defendant, specified in section 445 of this act. As against such a defendant, who is allowed to defend after judgment, or as against a defendant not summoned, it is evidence only of the extent of the plaintiff's demand, after the liability of that defendant has been established, by other evidence.

2 R. S. 377, 2 (2 Edm. 391). Nat. Bank v. Spencer, 19 Hun, 569; 1278, ante; Bacon v. Comstock, 11 How. 197; Catlin v. Billings, 13 How. Pr. 511; 8. C., 4 Abb. Pr. 248; see Oakley v. Aspinwall, 4 N. Y. 514.

§ 1934. Execution; indorsement thereupon.-An execution upon such a judgment must be issued, in form, against all the defendants; but the attorney for the judgment creditor must indorse thereupon a direc tion to the sheriff, containing the name of each defendant, who was not summoned, and restricting the en-. forcement of the execution, as prescribed in the next section.

Id., 3.

§ 1935. How collected.-An execution against the person, issued upon such a judgment, shall not be en

forced against the person of a defendant, whose name is so indorsed thereupon. An execution against prop. erty, issued upon such a judgment, shall not be levied upon the sole property of such a defendant; but it may be collected out of personal property owned by him, jointly with the other defendants, who were summoned, or with any of them; and out of the real and personal property of the latter, or of any of them.

Id., 4. Merchants Ex. Nat. Bank v. Waitzfelder, 14 Hun, 47.

§ 1936. Judgment, how docketed; effect of docketing. Where a judgment has been taken, as prescribed in section 1932 of this act, the clerk, with whom the judgment-roll is filed, must write upon the docket, opposite or under the name of each defendant, upon whom the summons was not served, the words, "not summoned;" and a like entry must be made by each county clerk, with whom the judgment is afterwards docketed. The judgment does not, by virtue of its being docketed, bind any real property, or chattel real, owned by such a defendant. But this section does not affect the plaintiff's right of action, to charge the judgment upon any real property.

New.

§ 1937. Action to charge defendants not personally summoned. After the recovery of a judgment against joint debtors, as prescribed in section 1932 of this act, an action may be maintained by the judgment creditor, against one or more of the defendants, who were not summoned in the original action, to procure a judg ment, charging his or their property with the sum re. maining unpaid upon the original judgment.

Code of Proc., 8 375. Harper v. Bangs, 18 How. 457; Dean v. Eldridge, 29 id. 218; Ticknor v. Kennedy, 4 Abb. N. S. 417; Prince v. Cujas, 7 Rob. 76; John v. Smith, 14 Abb. 423; Fairchild v. Durand, 8 id. 305; Oakley v. Aspinwall, 4 N. Y. 514; Harper v. Bangs, 18 How. Pr. 457; see Lane v. Salter, 51 N. Y. 1; Dean v. Eldridge, 29 How. Pr. 218; Townsend v. Newell, 14 Abb. Pr. 340; Mervin v. Kumbel, 23 Wend. 293; Fine v. Righter, 3 Abb. Pr. N. S. 385; Maples v. Mackey, 9 N. Y. Dig. (S. C.), 493, decided Sept., 1880.

§ 1938. Complaint in such action.-The complaint in such an action must be verified; must contain an allegation that the judgment has not been paid; and must state the sum, remaining unpaid thereupon, at the time of the verification.

Code of Proc., 8 378, amended.

§ 1939. Answer. The defendant's answer is re stricted to defences or counterclaims, which he might have made in the original action, if the summons therein had been served upon him, when it was first served upon a defendant jointly indebted with him; objections to the judgment; and defences or counterclaims, which have arisen since it was rendered.

Code of Proc., 379, amended; see 22 415 and 938, ante. Ogden v. Wall, 19 Hun, 184.

§ 1940. Provisional remedies.-For the purpose of obtaining an order of arrest, an injunction order, or a warrant of attachment, the action is regarded as being founded upon the contract, upon which the original judgment was recovered.

New.

§ 1941. Judgment.-Where the judgment is in favor of the plaintiff, it must determine the sum remaining unpaid upon the original judgment; and it may be docketed, and an execution may be issued thereupon, as if it was a judgment for the sum so remaining un paid, and the costs, if any. Costs must be awarded, as if the action was brought upon the original contract, and the sum so remaining unpaid had been recovered therein.

Code of Proc., 380, amended.

1942. Joint debtors may compound separately. Mode and effect.-A joint debtor may make a separate composition with his creditor, as prescribed in this sec tion. Such a composition discharges the debtor making it; and him only. The creditor must execute to the compounding debtor a release of the indebtedness, or other instrument exonerating him therefrom. A member of a partnership cannot thus compound for a part nership debt, until the partnership has been dissolved by mutual consent or otherwise. In that case the in strument must release or exonerate him, from all lia. bility, 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 proceed. ing against the latter; unless an intent to release or exonerate him, appears affirmatively upon the face thereof. L. 1838, ch. 257, 28 1 and 5 and part of 2, amended: L. 1845, ch. 348 (4

Edm. 450). Stitt v. Cass, 4 Barb. 92; Bank of Poughkeepsie v. Ibbottson, 5 Hill, 461; Hoffman v. Dunlap, 1 Barb. 185; Cornell v. Masten, 35 Barb. 157; Couch v. Mills, 21 Wend. 424; Matthews v. Chicopee Manuf. Co., 3 Rob. 711; Morgan v. Smith, 70 N. Y. 537; see, also, ? 1278, ante; Miller v. Fenton, 11 Paige, 18; Rogers v. Hosack, 12 Wend. 319; Irvin v. Milbank, 15 Abb. Pr. N. S. 378; s. c., 56 N. Y. 635.

§ 1943 Satisfying judgment.-An instrument, specified in the last section, is deemed a satisfaction-piece, for the purpose of discharging, as prescribed in section 1260 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.

Part of id., 2; 1260, ante.

Where

§ 1944. Rights of the debtors not released. 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.

Id., ?? 3 and 4.

§ 1945. Action against persons engaged in transpor tation. In an action brought against one or more per sons, 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 had joined with him, as a defendant, a person not jointly engaged with him in that business, or on the ground that the plaint iff 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