decree of a surrogate's court, duly rendered upon allegations for that purpose, as prescribed in article first of title third of chapter eighteenth of this act, where the plaintiff was duly cited in the special proceeding in the surrogate's court, before the commencement of the action.

Laws of 1853, ch. 238, 1 (4 Edm. 503). Knox v. Jones, 47 N. Y. 389; Marvin v. Marvin, 11 Abb. (N. S.) 102.

§ 1867. Retrospective effect of this article.- The provisions of this article apply as well to wills made before, as to those made after, this article takes effect. 2 R. S. 68, 56b and 68b and part of 3 67a (2 Edm. 69).

ARTICLE FOURTH.

GENERAL AND MISCELLANEOUS PROVISIONS,

SEC. 1868. Action by child born after will, or by witness to will. 1869. Receiver, as successor of surviving executor, etc. 1870. Next of kin defined.

§ 1868. Action by child born after will, or by wit ness to will. A child, born after the making of a will, who is entitled to succeed to a part of the real or per sonal property of the testator, or a subscribing witness to a will, who is entitled to succeed to a share of such property, may maintain an action against the legatees or devisees, as the case requires, to recover his share of the property; and he is subject to the same liabilities, and has the same rights, and is entitled to the same remedies, to compel a distribution or partition of the property, or a contribution from other persons interested in the estate, or to gain possession of the property, as any other person who is so entitled to succeed.

2 R. S. 456, 62-66 (2 Edm. 476). Mitchell v. Blain, 5 Paige, 588.

§ 1869. Receiver, as successor of surviving execu tor, etc.- Where the estate of a decedent has been brought under the jurisdiction of the supreme court, or of a superior city court, by an action for partition or distribution, or for the construction or establishment of a will, the court may, upon the death of the sole surviving executor, appoint a receiver of the estate, pending the action, upon such terms and conditions, and upon

such notice to the parties interested, as the court directs, and upon such security, if any, as to the court seems proper. For the purpose of carrying into effect the judgment and orders of the court in relation to the estate, a receiver so appointed is the successor in interest of the surviving executor; and has, subject to the direction of the court, the like power, as an administrator with the will annexed.

2 R. S. 78, 45; L. 1863, ch. 466 (2 Edm. 164).

§ 1870. Next of kin defined.-The term, "next of kin," as used in this title, includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent, after payment of debts and expenses, other than a surviving husband or wife. New. See 22 1905 and 2514, subd. 12, post.

TITLE IV.

Other special actions and rights of action.

ARTICLE 1. Judgment creditor's action.

2. Action by a private person upon an official bond.
3. Action by a private person for a penalty or forfeiture.
4. Certain actions to recover damages for wrongs.
5. Miscellaneous actions and rights of action.

ARTICLE FIRST.

JUDGMENT CREDITOR'S ACTION.

SEC. 1871. When judgment creditor may bring action. 1872. To what county execution must have issued.

1873. What property may be reached.

1874. Interest of judgment debtor in land contract may be reached. 1875. Id.; how applied.

1876. Injunction may be issued.

1877. Receiver may be appointed.

1878. How discovery may be compelled.

1879. Application of this article; what property cannot be reached.

1871. When judgment creditor may bring action.→ hen an execution against the property of a judgment otor, issued out of a court of record, as prescribed in

the next section, has been returned wholly or partly unsatisfied, the judgment creditor may maintain an action against the judgment debtor, and any other person, to compel the discovery of any thing in action, or other property belonging to the judgment debtor, and of any money, thing in action, or other property due to him, or held in trust, for him to prevent the transfer thereof, or the payment or delivery thereof, to him, or to any other person; and to procure satisfaction of the plaintiff's demand, as prescribed in the next section but one. Where the execution was issued as prescribed in section 1934 of this act, and a defendant not summoned in the original action is made a defendant in an action brought under this section, personal property, owned by him jointly with the defendants summoned or with any of them, may be applied to the satisfaction of the plaintiff's demand as prescribed in this article.

2 R. S. 173, 38 (2 Edm. 180); see, also, 217, 713 and 827, ante. Donovan v. Finn, Hopk. 59; Hadden v. Spader, 20 Johns. 554; Produce Bank v. Morton, 67 N. Y. 199; Shand v. Hanly, 71 id. 319; McElwain v. Willis, 9 Wend. 548; Crippen v. Hudson, 13 N. Y. 161, 165; Reubens v. Joel, id. 488; M. & T. Bank of Jersey City v. Dakin, 51 id. 519, 522; Parshall v. Titlow, 13 How. 7; Payne v. Sheldon, 63 Barb. 169; McCartney v. Bostwick, 32 N. Y. 53; Lawrence v. Bank of the Republic, 35 id. 320; Durand v. Hankerson, 39 id. 257; Lewishon v. Drew, 15 Hun, 467; Dewey v. Moyer, 72 N. Y. 70; Ballou v. Boland, 14 Hun, 355; Gillett v. Staples, 16 id. 587; O'Brien v. Browning, 11 id. 179; Genesee River Nat. Bank v. Mead, 18 id. 303; Akce v. Bigler, Ct, of App., June, 1880, 24 Alb. L. J. 514; Curtis v. Fox, 47 N. Y. 299; Sloan v. Waring, 9 N. Y. Week. Dig., decided Dec. 80, 1879.

1872. To what county execution must have issued. To entitle the judgment creditor to maintain an action as prescribed in the last section, the execution must have been issued as follows:

1. If, at the time of the commencement of the action, the judgment debtor is a resident of the State, to the sheriff of the county where he resides.

2. If he is not then a resident of the State, to the sheriff of the county where he has an office, for the regular transaction of business in person; or if he has no such office within the State, to the sheriff of the county where the judgment-roll is filed, unless the execution was issued out of a court, other than the court in which the judgment was rendered; in which case, it must have been issued to the sheriff of the county where a transcript of the judgment is filed.

New. Reed v. Wheaton, 7 Paige, 663; Leggett v. Hopkins, id. 149;,

Cassidy v. Meacham, 3 id. 311; Child v. Brace, 4 id. 309: Chautauqua Co. Bank v. White, 6 N. Y. 236; Chautauqua Co. Bank v. Risley, 19 id. 369; McCartney v. Bostwick, 32 id. 53; Lamont v. Cheshire, 65 id. 30; Bockes v. Lansing, 74 id. 437; Erickson v. Quinn, 15 Abb. N. S. 168; Ber gen v. Carman, Ct. App., Dec., 1879, 21 Alb. L. J. 54,

$1873. What property may be reached. The final judgment in the action must direct and provide for the satisfaction of the sum due to the plaintiff, out of any money, thing in action, or other personal property, be longing to, or due to the judgment debtor, or held in trust for him, which is discovered in the action; whether the same might or might not have been originally taken by virtue of an execution.

2 R. S. 780, 8 39. Chautauqua Co. Bank v. White, 6 N. Y. 236; Chautau qua Co. Bank v. Risley, 19 id. 369; Young v. Hearmans, 66 id. 379; Union Nat, Bank of Albany v. Warner, 12 Hun, 306; Derby v. Yale, 13 id. 273; Travis v. Myers, 67 N. Y. 542; Edmeston v. Lyde, 1 Paige, 637; Browning v. Bettis, & id. 568; McCoun v. Dorsheimer, 1 Clarke, 144; Hudson v. Peets, 11 Paige, 180 Ten Broeck v. Sloo, 3 Abb. 234; Andrews v. Rowan, 28 How. 126; Tillottson v. Wolcott, 48 N. Y. 88; Cooney v. Cooney, 65 Barb. 224; Eager v. Price, 2 Paige, 333; Saylor v. Perkins, 26 Wend. 125: Stewart McMartin, 5 Barb. 438, Tompkins v. Fonda, 4 Paige, 448; Watson v. LeRow, 6 Barb. 481; Campbell v. Foster 35 N. Y. 361; Wet more v. Truslow, 51 id. 338; Mann v. Van Voorhis, 15 Abb. N. S. 79: Briswell v. Links, 9 N. Y. Week. Dig. 249.

D1874. Interest of judgment debtor in land contract may be reached. The final judgment in the action must also direct and provide for the satisfaction of the sum due to the plaintiff, out of the interest, if any, of the judgment debtor, in a contract for the purchase of real property by him; either by selling the interest, or by transferring it to the judgment creditor, in such a manner and upon such terms, as the court deems most conducive to the interests of the parties. Where the person, bound to perform the contract to the judgment debtor, is a defendant in the action, the final judgment may direct a specific performance of the contract to the judgment creditor, or, where the interest in the contract is directed to ted to be sold, to the purchaser. to Bite de

01 R. S. 744 25 (1) Edm. 696), amended. Watson v. LeRow 6 Barb. 481: Ellsworth v. 10 id. 598. p. Cuyler, 9 Paige, 418; see, also, Farnham v. Campbell, noilgoo2p-64 zelan bola ei flor-mombat et eredw 875. Id.; how applied. In a case specified in the tion, the value of the interest of the judgment olding the contract must be ascertained, under tion of the court; and so much thereof as is must be applied to the payment of the sum

due to the plaintiff, and the residue, if any, to the benefit of the judgment debtor.

Id., 6.

§ 1876. Injunction may be issued.-A temporary injunction, restraining the transfer to any person, or the payment or delivery to the judgment debtor, of any money, thing in action, or other property or interest, which may, by the provisions of this article, be applied to the satisfaction of the sum due to the plaintiff, may be granted in the action. The injunction, and the proceedings before and after it is granted, are governed by the provisions of article first of title second of chapter seventh of this act; for which purpose, the injunction is deemed to be one of those specified in section 603 of this act.

2 R. S. 174, 39. Candler v. Petit, 1 Paige, 168; Bloodgood v. Clark, 4 id. 574; Austin v. Figueira, 7 d. 56; Lansing v. Easton, id. 364.

§ 1877. Receiver may be appointed. The court may, by an order, or by the interlocutory or final judgment in the action, appoint a receiver of any or all of the prop erty of the judgment debtor; and may direct the judg ment debtor, or any other defendant in the action, to convey or deliver to the receiver, as justice requires, any property, real or personal, book, voucher, or other paper, or to execute any instrument, which it deems necessary, for perfecting or assuring the receiver's title or possession.

New. See 88 714-716 and 718. Chamberlain v. Greenleaf, 4 Abb. N. C. 92; Bloodgood v. Clark, 4 Paige, 574; Osborn v. Heyer, 2 id. 342; Bank of Monroe v. Schermerhorn, 1 Clarke, 214; Reubens v. Joel, 13 N. Y. 488; Catlin v. Doughty, 12 How. 457; Bennett v. McGuire, 58 Barb, 625, 635; Gere v. Dibble, 17 How. 31; Myres v. Case, 2 Abb. 476; Webb v. Overman, 6 Abb. 92; Lent v. McQueen, 15 How. 313.

§ 1878. How discovery may be compelled.-A discovery may be compelled in an action, brought as prescribed in this article, by directing the person, required to make it, to appear before the court, or a referee appointed by it, and to be examined under oath, concerning the matters pertaining to the discovery. But this section does not affect the right of the plaintiff, to cause the deposition of a defendant to be taken, as prescribed in article first of title third of chapter ninth of this act. New. Catlin v. Doughty, 12 How. Pr. 457; see 12 870-886, ante, LeRoy . Rogers, 3 Paige, 234; Fitzhugh v. Everingham, 6 id. 29; Browning . Bettis, 8 id. 568; Hudson v. Pletz, 11 id. 180; Austin v. Dickey, 3 Edw.