two or more causes of action, in any case specified in section 484 of this act. See § 484, ante. 1688. When special proceeding to recover real property not allowed. A special proceeding to recover real property cannot be taken, except in a case specially prescribed by law. See 2 R. S. 342, § 24 (2 Edm. 354); Ellicott v. Mosier, 7 N. Y. 209. TITLE II. Actions relating to chattels, ARTICLE 1. Action to recover a chattel. 2. Action to foreclose a lien upon a chattel. ARTICLE FIRST. ACTION TO RECOVER A CHATTEL. SEC. 1689. Joinder of action with others. 1690. When it cannot be maintained. 1691. Id.; after judgment against the plaintiff. 1692. Id.; by an assignee. 1693. Jurisdiction, etc., when a replevin precedes summons. 1695. Affidavit therefor, before commencement of action. 1696. Id.; after commencement of action. 1697. Id.; where several chattels are to be replevied. 1698. Provision where a part only is replevied. 1699. Plaintiff's undertaking for replevin. 1700. How chattel to be replevied. 1701. Id.; how taken from a building, etc. 1702. Replevied chattel; how kept, etc. 1703. When defendant may except to sureties; proceedings there. upon. 1704. When defendant may reclaim chattel; proceedings thereupon. 1705. Sureties; when and how to justify. 1706. When and to whom sheriff must deliver chattel. 1707. Penalty for wrong delivery by sheriff. 1708. Undertaking; to whom delivered. 1709. Claim of title by third person; proceedings thereupon. 1710. Action against sheriff upon such claim. 1711. Indemnity to sheriff against such action. 1712. When agent, etc., may make affidavit for replevin or return. 1713. Second and subsequent replevin; proceedings thereupon. 1714. Replevin, where order of arrest has been granted. 1715. Return, etc., by sheriff. 1716. Id.; how compelled. 1717. Replevin papers to be made part of judgment-roll, etc. 1718. Action not affected by failure to replevy. Bec. 1719. When and how plaintiff may abandon his claim as to park. 1720. Title; how stated in pleading. 1721. Taking, etc.; how stated in complaint. 1722. Damages, when chattel injured, etc., by defendant. 1723. Answer of title in third person. 1724. Answer that property was distrained doing damage. 1726. Verdict, etc., what to state. 1727. Substitute in certain cases for finding as to value. 1728. Verdict, etc., for part of several chattels; Judgment upon. 1729. Damages how ascertained on default. 1730. Final judgment; docketing the same. 1731. Execution; contents thereof. 1732. Id.; sheriff's power to take chattel. 1733. Action on undertaking; when maintainable. 1735. Injury, etc., no defence. 1736. Abatement and revival of action. 1689. Joinder of action with others.-Nothing in this title is to be so construed, as to prevent the plaintiff from uniting, in the same complaint, two or more causes of action, in any case specified in section 484 of this act. See 1687, ante, § 1690. [Amended, 1894 ] When it cannot be maintained. - An action to recover a chattel cannot be maintained in either of the following cases: 1. Where the chattel was taken by virtue of a warrant, against the plaintiff, for the collection of a tax, assessment or fine, issued in pursuance of a statute of the State or of the United States; unless the taking was, or the detention is, unlawful, as specified in section sixteen hundred and ninety-five of this act. 2. Where it was seized by virtue of an execution, or a warrant of attachment, against the property of the plaintiff, unless it was legally exempt from such seizure, or is unlawfully detained, as specified in section sixteen hundred and ninety-five of this act. 3. Where is* was seized by virtue of an execution, or a warrant of attachment, against the property of a person other than the plaintiff, and at the time of the commencement of the action the plaintiff had not the right to reduce it into his possession. In effect April 17, 1894; Laws 1894, ch. 305. 2 R. S. 522, §§ 4 and 5 (2 R. S. 540), amended; Neal v. O'Brien, 7 Hun, 371; Hudler v. Golden, 36 N. Y. 446; Judd v. Fox, 9 Cow. 259; Howland v. Howland, 20 Hun, 472; Troy and Lansingburgh H. R. R. Co. v. Kane, 72 N. Y. 614; Alvord v. Haynes, 13 Hun, 26; Black River Ins. Co. v. The N. Y. State L. & T. Co., 73 N. Y. 282; Barnett v. Selling, 70 id. 492; Stockwell v. Veetch, 38 Barb. 650; O'Reilly v. Good, 42 Barb. 521; Sager *So in the original. v. Blain, 44 N. Y. 445; Edgerton v. Ross, 6 Abb. 189; Hunt v. Mootry, 10 How. 478; see Wilkes v. Mayor of N. Y., 21 Alb. L. J. 32, Ct. App., Dec. 9, 1879. 1691. Id.; after judgment against the plaintiff.Where a chattel is replevied, in an action to recover the same, and a final judgment awarding the possession thereof to the defendant is rendered, a subsequent action to recover the same chattel cannot be maintained by the plaintiff, for the same cause of action. But the judgment does not affect his right to maintain an action to recover damages, for taking or detaining the same or any other chattel, unless it was rendered against him upon the merits. Id. 62; Whitcomb v. Hoffman, 4 Hun, 335; Cochran v. Gottwald, 9 J, & Sp. 317. $1692. Id.; by an assignee.-An action to recover a chattel, the title to which has been transferred to the plaintiff, since the wrongful taking, or during the wrong ful detention thereof, with or without the damages sustained by the taking, withholding, or detention, may be maintained in any case, where, except for the transfer, such an action might be maintained, by the person from or through whom the plaintiff derives title; but not otherwise. New. See Vogel v. Badcock, 1 Abb. Pr. 176; Nash v. Fredericks, 12 id. 147; Sherman v. Elder, 1 IIilt. 178; Whittaker v. Merrill, 30 Barb.389. § 1693. Jurisdiction, etc., when replevin precedes summons.—Where a chattel is replevied before the service of the summons, as prescribed in this article, the seizure thereof by the sheriff is regarded as equivalent to the granting of a provisional remedy, for the purpose of giving jurisdiction to the court, and enabling it to control the subsequent proceedings in the action; and as equivalent to the commencement of the action, for the purpose of determining, whether the plaintiff is entitled to maintain the action, or the defendant is liable thereto. 416. New. See 416, ante. 1694 Plaintiff may require sheriff to replevy.-The plaintiff may, when the summons is issued, or at any time afterwards, and before the service of a copy of the defendant's answer, or, where judgment is taken by default for want of an appearance or pleading, before the entry of the final judgment, cause the chattel, to recover which the action is brought, to be replevied by the sheriff of the county where it is found. For that purpose, he must deliver to the sheriff an affidavit and a written undertaking, as prescribed in the following sections of this article, with a written requisition, indorsed upon or annexed to the affidavit, and subscribed by his attorney, to the effect, that the sheriff is required to replevy the chattel described therein. The requisition may be directed to the sheriff of a particular county, or, generally, to the sheriff of any county where the chattel is found. It is deemed the mandate of the court. Code Proc., 22 206 and 209, amended and consolidated. As to nature of remedy and when it lies, see Ross v. Cassidy, 27 How. 416; Knapp v. Smith, 27 N. Y. 277; Nichols v. Michael, 22 id. 269; Ellis v. Lersner, 48 Barb. 539; Brockway v. Burnap, 16 Barb. 309; Scofield v. Whitelegge, 49 N. Y. 259; Barnett v. Selling, 70 id. 492. $1695. Affidavit therefor, before commencement of action.—The affidavit, to be delivered to the sheriff, as prescribed in the last section, must particularly describe the chattel to be replevied ; and must contain the following allegations: 1. That the plaintiff is the owner of the chattel, or is entitled to the possession thereof, by virtue of a special property therein; the facts with respect to which must be set forth. 2. That it is wrongfully detained by the defendant. 3. The alleged cause of the detention thereof, according to the best knowledge, information, and belief of the person making the affidavit. 4. That it has not been taken by virtue of a warrant, against the plaintiff, for the collection of a tax, assessment, or fine, issued in pursuance of a statute of the State, or of the United States; or, if it has been taken under color of such a warrant, either that the taking was unlawful, by reason of defects in the process, or other causes specified, or that the detention is unlawful, by reason of facts specified, which have subsequently occurred. 5. That it has not been seized by virtue of an execu tion or warrant of attachment, against the property of the plaintiff, or of any person from or through whom the plaintiff has derived title to the chattel, since the seizure thereof; or, if it has been so seized, that it was exempt from the seizure, by reason of facts specified, or that its detention is unlawful, by reason of facts speci fied which have subsequently occurred. 5. Its actual value. See Code Proc., 8207; O'Reilly v. Good, 42 Barb. 521; Niagara Elevating Co. v. McNamara, 2 Hun, 416 People v. Albany Com. Pleas, 7 Wend. 485; Wright v. Briggs, 2 Hill, 77; Stockwell v. Veitch, 38 Barb. 650; s. c., 15 Abb. Pr. 412; Hudler v. Golden, 36 N. Y. 446; Roberts v. Willard, 1 Code R. 100; Burns v. Robbins, id. 62; Depew v. Leal, 2 Abb. 136; Hyde v. Patterson, 1 id. 248; Wisconsin Ins. Co. Bank v. Hobbs, 22 How. 494, Spalding v. Spalding, 3 id. 397, 1696. Id.; after commencement of action.-But where the affidavit is made after the service of the summons, the allegations, required to be inserted therein by subdivisions first and second of the last section, must be to the effect, that the plaintiff, at the time of the commencement of the action, was the owner of the chattel, or was entitled to the possession thereof by virtue of a special property therein; and that it was then wrongfully detained by the defendant, as prescribed in those subdivisions. New. Van Neste v. Conover, and cases cited, 2 1695, ante. § 1697. Id.; where several chattels are to be replevied. Where the affidavit describes two or more chattels of the same kind, it must state the number thereof, and where it describes a chattel in bulk, it must state the weight, measurement, or other quantity. Where it describes two or more chattels to be replevied, it may, at the election of the plaintiff, state the aggre gate value of all; or, separately, the value of any chattel or of any class of chattels, and the aggregate value of the remainder, if any. Where it states separately thevalue of one or more chattels or classes of chattels, the defendant may require, as prescribed in the following provisions of this article, the return of any or all of the chattels or classes of chattels, the value of which is thus stated, or of the portion thereof which has been reple vied. If he procures such a return, the remainder must be delivered to the plaintiff, except as is otherwise prescribed in this article. New in form; explanatory of 1695, ante. Also annuls the rule of law as laid down in Lowrey v. Mansfield, 3 How. Pr. 388. § 1698. Provision where a part only is replevied. |