PUBLIC OFFICERS LAW
Laws 1909, Chap. 51.

AN ACT in relation to public officers, constituting chapter forty-
seven of the consolidated laws.

Became a law February 17, 1909, with the approval of the
Governor. Passed, three-fifths being present.

The People of the State of New York, represented in Senate and
Assembly, do enact as follows:

CHAPTER 47 OF THE CONSOLIDATED LAWS
PUBLIC OFFICERS LAW

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ARTICLE 2-A

ACTIONS ON OFFICIAL BONDS OR UNDERTAKINGS

Section        20.  Action upon official bond or undertaking.

               21.  Application may be made ex parte.

               22.  Proof to accompany application.

               23.  Order granting leave; action thereupon.

               24.  Successive actions.

               25.  Indorsement upon execution.

               26.  Collection of execution; when a defense to
                    subsequent action.

               27.  When claimants entitled to ratable
                    distribution.

               28.  Receivers, assignees and trustees deemed
                    public officers.

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Sec. 20.  Action upon official bond or undertaking.

Where a public officer is required to give an official bond or
undertaking, and special provision is not made by law for the
prosecution of the bond or undertaking, 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 or
undertaking are liable, such a person may apply for leave to
prosecute such official bond or undertaking. Such application
shall be made to the supreme court except as otherwise provided
in this article.


Sec. 21.  Application may be made ex parte.

Such application 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.


Sec. 22.  Proof to accompany application.

The application must be accompanied with

1.   A certified copy of the official bond or undertaking;

2.   Proof by affidavit of the default or misconduct complained
     of, and that satisfaction of the same has not been received.

3.   If the default consists of the non-payment of money, and the
     applicant has not recovered judgment against the officer, or
     special provision is not otherwise made by law, proof of a
     demand for the money from the officer, or that a demand
     cannot be made with due diligence.


Sec. 23.  Order granting leave; action thereupon.

Upon such an application, the court must grant an order,
permitting the applicant to maintain an action upon the bond or
undertaking. The action must be brought, in the court which
granted the order, by the applicant as plaintiff; and it may be
maintained, as if the applicant was the obligee named in the bond
or undertaking, except as otherwise expressly prescribed in this
article.


Sec. 24.  Successive actions.

The same, or any other applicant, may, in like manner, either
before or after judgment in the first action, obtain an order,
permitting him to maintain another action, in the same court,
upon the same bond or undertaking, for another default or
misconduct. Any number of such orders may be successively made;
and neither of the actions authorized thereby is affected by the
pendency of, or the recovery of judgment in, any other, except as
otherwise expressly prescribed in this article.


Sec. 25.  Indorsement upon execution.

Where an execution is issued upon a judgment, recovered against
the public officer and any of his sureties, in an action, brought
pursuant to this article, the plaintiff's attorney must indorse
thereon a direction to collect the same, in the first place out
of the property of the public officer, and, if sufficient
property cannot be found, then to collect the deficiency out of
the property of the surety or sureties.


Sec. 26.  Collection of execution; when a defence to subsequent
          action.

It is a defence by a surety, against whom an action is brought
upon an official bond or undertaking, that he, or any other
surety or sureties, have been or will be compelled, for want of
sufficient property of the public officer to pay, upon one or
more judgments recovered against him or them, upon the same bond
or undertaking, 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 or undertaking. 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.


Sec. 27.  When claimants entitled to ratable distribution.

If the aggregate amount of the liabilities, which might be
recovered by actions upon an official bond or undertaking, 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 or
undertaking, made upon notice to the plaintiff's attorney, in
each action then pending upon such bond or undertaking, and in
each uncollected judgment 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.


Sec. 28.  Receivers, assignees and trustees 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 this article; but where he was
appointed by or pursuant to the order of a court, or in
proceedings supplementary to execution against property, the
application for leave to prosecute his official bond or
undertaking 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.


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