fendant has demanded judgment for the return of a chattel, which was replevied, and afterwards delivered to the plaintiff, or to a person not a party, as prescribed in this article, final judgment in his favor therefor must award to him possession thereof, with his damages, if any; and it must also award to him the sum fixed as the value thereof, to be paid by the plaintiff, if possession is not delivered to the defendant. But if the case is one of those specified in section one thousand seven hundred and twenty-seven of this act, final judgment in favor of the defendant must award to him the sum, fixed as therein specified, and, if it is not collected, the delivery of the chattel; or, if the chattel has not been replevied, or has been returned to him after replevin, that he is entitled to possession thereof, until the sum so awarded is collected, or otherwise paid. The judgment may be docketed, and the docket thereof creates a lien, as if it was a judgment for the full amount of the money, including costs, which it awards, either absolutely or conditionally.

§ 1731. An execution for the delivery of the possession 136 N.Y. 430 of a chattel, and to satisfy, out of the property of the judg. 85 Hun, 377. ment debtor, a sum of money contingently awarded against him, must contain, in addition to the other matters prescribed by law, the following directions:

1. Where the judgment is rendered in favor of the defendant, in a case specified in section one thousand seven hundred and twenty-seven of this act, the execution must require the sheriff to deliver possession of the chattel to the defendant, unless the plaintiff, before the delivery, pays to him the sum of money awarded to the defendant, with interest and the sheriff's fees; and, in case the chattel cannot be found within his county, then to satisfy that sum out of the property of the plaintiff.

2. In any other case, where the judgment awards a sum of money, if possession of the chattel is not delivered to the prevailing party, the execution must require the sheriff, if the chattel cannot be found within his county, to satisfy the sum so awarded, with interest and his fees, out of the property of the party against whom the judgment is rendered.

A direction to satisfy a sum of money out of property, as prescribed in this section, must be in the form required by law for a like direction, where an execution against property is issued upon a judgment for a sum of money.

§ 1732. For the purpose of taking possession of a chattel, by virtue of such an execution, the powers of the sheriff are the same, as where he is required to replevy a chattel.

§ 1733. A plaintiff, who has recovered a final judgment, cannot maintain an action against the sureties in an undertaking, given in behalf of the defendant to procure a return of the chattel, or against the bail of a defendant, who has been arrested, until after the return, wholly or partly un

$$ 1159, 1235, Consol. Act.

3. Ilun, 288.

$115,1-3, onsol. Act.

satisfied or unexecuted, of an execution in his favor for the delivery of the possession of the chattel, or to satisfy a sum of money out of the property of the defendant, or for both purposes, as the case requires. A defendant, who has recovered a final judgment, cannot maintain an action against the sureties in the plaintiff's undertaking, given to procure a replevin, until after a like return of a similar execution against the plaintiff.

1734. In such an action against the sureties, the sheriff's return to the execution is presumptive evidence of a failure to deliver, or to return a chattel, or to pay a sum of money, according to the terms of the undertaking.

§ 1735. It is not a defence to such an action, that the chattel was injured or destroyed, after it was replevied, unless the injury or destruction was effected by the act, or with the consent of the plaintiff in the action, or occurred after the chattel was taken by virtue of the execution.

§ 1736. In an action to recover a chattel, the cause of action survives or continues, notwithstanding the death of either party, in favor of or against his executor or administrator. Where the court makes an order, directing the abatement of such an action, as prescribed in section seven hundred and sixty-one of this act, an action may be maintained, upon an undertaking, given for the purpose of procuring a delivery or return of a chattel, as if final judgment, awarding to the adverse party possession thereof, had been rendered in the first action, and an execution thereupon had been returned unexecuted and unsatisfied; except that damages cannot be recovered therein for a wrongful taking, withholding, or detention. An action to recover the chattel cannot be maintained, after an action has been commenced upon an undertaking, as prescribed in this section.

ARTICLE SECOND.

ACTION TO FORECLOSE A LIEN UPON A CHATTEL.

§ 1737. Action; when and in what

courts maintainable.

1738. Warrant to seize chattel;

proceedings thereupon.

§ 1739. Judgment.

1740. Action in inferior court. 1741. Application of this article.

1737. An action may be maintained to foreclose a lien upon a chattel, for a sum of money, in any case where such a lien exists at the commencement of the action. The action may be brought in any court, of record or not of record, which would have jurisdiction to render a judgment, in an action founded upon a contract, for a sum equal to the amount of the lien.

§ 1738. [Am'd 1895, amendment to take effect January 1, 1896.] Where the action is brought in the supreme co..rt, Hun, 349. the city court of the city of New York or a county court, if the plaintiff is not in possession of the chattel, a warrant

Id. 344.

may be granted by the court or a judge thereof, e minding the sheriff to seize the chattel, and safely keepito bide the final judgment in the action. The provisions of utie third of chapter seven of this act apply to such warrant, and to the proceedings to procure it and after it has been issued, as if it was a warrant of attachment except as otherwise expressly prescribed in this article.

§ 1739. In an action brought in a court specified in the last section, final judgment, in favor of the plaintiff, must specify the amount of the lien, and direct a sale of the chattel to satisfy the same and the costs, if any, by a referee appointed thereby, or an officer designated therein, in like manner as where a sheriff sells personal property by virtue of an execution; and the application by him of the proceeds of the sale, less his fees and expenses, to the payment of the amount of the lien, and the costs of the action. It must also provide for the payment of the surplus to the owner of the chattel, and for the safe keeping of the surplus, if necessary, until it is claimed by him. If a defendant, upon whom the summons is personally served, is liable for the amount of the lien, or for any part thereof, it may also award payment accordingly.

§ 1740. Where the action is brought in a court, other § 1330, Con than one of those specified in the last section but one, if the sol. Act. plaintiff is not in possession of the chattel, a warrant, commanding the proper officer to seize the chattel, and safely keep it to abide the judgment, may be issued, in like manner as a warrant of attachment may be issued in an action founded upon a contract, brought in the same court; and the provisions of law, applicable to a warrant of attachment, issued out of that court, apply to a warrant, issued as prescribed in this section, and to the proceedings to procure it, and after it has been issued; except as otherwise specified in the judgment. A judgment in favor of the plaintiff, in such an action, must correspond to a judgment, rendered as prescribed in the last section, except that it must direct the sale of the chattel by an officer to whom an execution, issued out of the court, may be directed; and the payment of the surplus, if its safe keeping is necessary, to the county treasurer, for the benefit of the owner.

1741. This article does not affect any existing right or remedy to foreclose or satisfy a lien upon a chattel, without action; and it does not apply to a case, where another mode of enforcing a lien upon a chattel is specially prescribed by law.

CHAPTER XV.

SPECIAL PROVISIONS, REGULATING OTHER PARTICULAR ACTIONS AND RIGHTS OF ACTION, AND ACTIONS BY OR AGAINST PARTICULAR PARTIES.

TITLE I.-MATRIMONIAL ACTIONS.

TITLE II-ACTIONS RELATING TO A CORPORATION. TITLE III.-ACTIONS RELATING TO THE ESTATE OF A

DECEDENT.

TITLE IV.-OTHER SPECIAL ACTIONS AND RIGHTS of

ACTION.

TITLE V.-OTHER ACTIONS BY OR AGAINST PARTICULAR

PARTIES.

TITLE I.

Matrimonial actions.

ARTICLE 1. Action to annul a void or voidable marriage.

2. Action for a divorce.

3. Action for a separation.

4. Provisions applicable to two or more of the actions specified in this title.

§ 1742. [Am'd 1887.] An action may be maintained by the woman to procure a judgment declaring a marriage contract void, and annulling the marriage, under the following circumstances:

I. Where the plaintiff had not attained the age of sixteen years, at the time of the marriage.

II. Where the marriage took place without the consent of her father, mother, guardian or other person having the legal charge of her person.

III. Where it was not followed by consummation or cohabitation, and was not ratified by any mutual assent of the parties after the plaintiff attained the age of sixteen years.

1743-1745 ANNULLING MARRIAGE.

57

§ 1743. An action may also be maintained to procure a judgment, declaring a marriage contract void and annulling The marriage for either of the following causes, existing at the time of the marriage :

1. That one or both of the parties had not attained the age of legal consent.

2. That the former husband or wife of one of the parties was living, and that the marriage with the former husband or wife was then in force.

3. That one of the parties was an idiot or a lunatic.

4. That the consent of one of the parties was obtained by force, duress, or fraud.

5. That one of the parties was physically incapable of entering into the marriage state. But an action can be maintained, under this subdivision, only where the incapacity continues, and is incurable.

§ 1744. An action to annul a marriage, on the ground that one of the parties had not attained the age of legal consent, may be maintained by the infant, or by either parent of the infant, or by the guardian of the infant's person; or the court may allow the action to be maintained by any person, as the next friend of the infant. marriage shall not be annulled, at the suit of a party who was of the age of legal consent when it was contracted, or where it appears that the parties, for any time after they attained that age, freely cohabited as husband and wife.

But a

31 Abb. N. C

$ 1745. [Am'd 1882.] An action to annul a marriage, upon the ground that the former husband or wife of one of 74. the parties was living, the former marriage being in force, may be maintained by either of the parties during the lifetime of the other, or by the former husband or wife. Where it appears, and the judgment determines, that the subsequent marriage was contracted by at least one of the parties thereto in good faith, and with the full belief that the former husband or wife was dead, or without any knowledge on the part of the innocent party of such former marriage, the issue of the subsequent marriage, born or begotten before the final judgment, are deemed for all purposes the legitimate children of the parent who at the time of the marriage was competent to contract, and are entitled to succeed as such, in the same manner as other legitimate children, to the real and personal estate of said parent; and the issue so entitled must be specified in the judgment, and the innocent party must be awarded their custody, and he or she is entitled to appoint a guardian of their persons by will.

This section shall be construed to extend to all cases where the judgment or decree of nullity of such subsequent marriage is rendered after the passage of this act whether such subsequent marriage was contracted before or after the passage hereof.