commences or continues, or causes to be commenced or continued, an action or special proceeding, in a court, of record, or not of record, or a special proceeding before a judge or a justice of the peace; or takes, or causes to be taken, any proceeding, in the course of an action or special proceeding in such a court, or before such an officer, either before or after judgment or other final determination; an action, to recover damages therefor, may be maintained against him, by the adverse party to the action or special proceeding; and a like action may be maintained by the person, if any, whose name was thus used. He is also guilty of a misdemeanor, punishable by imprisonment, not exceeding six months. 2 R. S. 550, 21 (2 Edm. 571).

1901. Treble and other increased damages to be recovered. In an action, brought by the adverse party, as prescribed in the last section, the plaintiff, if he recovers final judgment, is entitled to recover treble damages. In an action, brought by the person whose name was used, as prescribed in the last section, the plaintiff is entitled to recover his actual damages, and two hundred and fifty dollars in addition thereto.

Id., part of 21; see, also, 1020 and 1184, ante.

S1902. Action for causing death by negligence, etc. The executor or administrator of a decedent, who has left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent's death.

L. 1847, ch. 450, 2 1 (4 Elm, 526), and a portion of 2 as amended by L. 1849, ch. 256, and by L. 1870, ch. 78 (7 Edin. 591). Lucas r. N. Y. C. R. R. Co., 21 Barb. 245; Whitford v. Panama R. R. Co., 23 N. Y. 465; Mahler v. Norwich, etc., Trans. Co., 35 id. 352; Vanderventer v. N. Y. & N. H. R. R. Co., 27 Barb. 244; Crowley v. Panama R. R. Co., 30 id. 99; Beach r. Bay State Steamboat Co., id. 433; Wells v. N. Y. C. R. R. Co., 24 N. Y. 181; Oldfield v. N. Y. & H. R. R. Co., 14 id. 310, 314; Quinn v. Moore, 15 id. 432.

§ 1903. Id.; for whose benefit. The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent's

husband or wife, or 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 adminis tration. 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., 22, as amended by L. 1849 and 1870.

1904. Id.; amount of recovery. The damages awarded to the plaintiff may be such a sum, not exceeding five thousand dollars, 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, Laay 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.

Id., remainder of 12, amended by L. 1849, ch. 256; L. 1870, ch. 78 (7 Edm. 591). The. 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 e. N. Y & HI. 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 action 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, 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 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, 1 and 2. Edsall v. Brooks, 17 Abb. Pr. 221; Sanford v. 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 defendant, etc.

sue.

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 Rights of defendant, etc.-Where a claim or demand 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 liabilities 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.

§ 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 r. Stearns, 66 d. 137; Gray . Green, 12 Hun, 598; Drake v. Smith, id, 532; Mayer r. Mode, 14 d. 155; Maule . Crawford, id. 193; Seligman v. Dudley, id. 186: Rosepaugh . Vreedenburgh, 16 id. 60; Pitcher . 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 . Boice, 19 id. 344: Heernians . Ellsworth, 64 N. Y. 159: Barton e. Spies, 73 id. 133; Comstock e. Hier, id. 269; Meech v. Stowe, 19 id, 26; see, also, McDougal v. Walling, 48 Barb. 361; Weyburn e. White, 22id. 82; Zabriskie r. Smith, 13 N. Y. 332; Graves . Spier, 58 Barb. 349; see, also, 1 R. S. 730, 22 63 and 65 (1 Edm. 679, 680); Horner r. Wood, 23 N. Y. 355; Bliss r. Lawrence, 58 id. 442; Seymour 2. Fellows, 77 id. 178; Devlin v. New York, 63 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 e. Auld, 44 N. Y. 50; Bullard v. Raynor, 30 id. 197; Schererhorn r. Talman, 14 id. 93; Bissell r. Kellogg, 60 Barb, 617; Carow . 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 e. N. Y. C. & II. R. R. R. Co., 71 N. Y. 443; see

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, 23154. Hanover F. Ins. Co. v. Tomlinson, 3 Hun, 630; s. c., 6 N. Y. Sup. Ct. (T. & C.) 127; see Force v. Gower, 22 How. Pr. 294; National Mech. B'nk'g Ass'n v. Usher, 1 Sweeney, 403; Lane r. Salter, 4 Rob. 239; Finch e. Carpenter, 5 Abb. 235; Lyon v. Manley, 10 id. 337; 8. c., 32 Barb. 51; Thompson v. Sutphen, 2 E. D. Smith, 527; Wheeler r. Dakin, 12 How. 537; Tuffts v. Braisted, 1 Abb. 84; s. c., 4 Duer, 607; Robins v. Wells, 26 Barb. 15; Vanderbilt v. Garrison, 3 Abb. 361: Church e. 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 proceeding, 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