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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. Code of Procedure, 8 277 ; 2 R. S. 532, 8 61 (2 Edm. 550).
§ 1731. Execution; contents thereof.-An execution for the delivery of the possession of a chattel, and to satisfy, out of the property of the judgment debtor, & 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 1727 of this act, the execution must require the sheriff to deliver possession of the chattel to the defendant, unless the plaint. iff 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 deliv. ered 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.
Code of Procedure, subd 4 of $ 289; 2 R. S. 530, $50 (2 Edm. 848); Hoffman v. Connor, 76 N. Y. 121.
§ 1732. Id. ; sheriff's power to take chattel. For the purpose of taking possession of a chattel, by virtue of such an execution, the powers of the sheriff are the bame, as where he is required to replevy a chattel. Id., 851, R. S.
$ 1733. Action on undertakings when maintain able.- A plaintiff, who has recovered a final judgment, cannot maintain an action against the sureties in his
undertaking, given in behalf of the defendant to pro cure a return of the chattel, or against the bail of a defendant, who has been arrested, until after the re. turn, wholly or partly unsatisfied or unesecuted, 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 sure. ties in the plaintiff's undertaking, given to procure & replevin, until after a like return of a similar execution against the plaintiff.
2 R. S. 533, 8 64 (2 Edm. 551); see Livingston v. Hammer, 7 Bosw. 670; Letson v. Dodge, 61 Barb. 125; Hagar v. Clute, 10 lun, 117; Collins u. Donohue, 5 N. Y. Leg. Obs. 227; Cowdon v. Stanton, 12 Wend. 120; Condon v. Pease, 10 id. 335.
$ 1734. Sheriff's return, evidence therein.— In such an action against the sureties, the sheriff's return to the execution is presumptive evidence of a failure to de. liver, or to return a chattel, or to pay a sum of money, according to the terms of the undertaking. Id., 865.
$ 1735. Injury, etc., no defence. 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. New. Suydam v. Jenkins, 3 Sandf. S. C. 614, 614, 645.
$ 1736. Abatement and revival of action. In an action to recover a chattel, the cause of action survives or continues, aotwithstanding the death of either party, in favor of or against his executor or administrator. Where the court makes an order, directing the abate. ment of such an action, as prescribed in section 761 of this act, an action may be maintained, upon an under. taking, 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 dam. ages 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. Laws 1880, ch. 270 ; Laws 1872, ch. 498. New in form ; see 88 755-701, ante; see Potter v. Van Vrankin, 36 N. Y. 619; Webber's Ex'rs v. Underhill, 19 Wend. 449; Burkle Luce, i Comst. 163.
ACTION TO FORECLOSE A LIEN UPON A CHATTEL
Bec. 1737. Action; when and in what courts maintainable.
1738. Warrant to seize chattel; proceedings thereupon.
§ 1737. Action; when and in what courts maintain able.- 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.
L. 1869, ch. 738, % 1 (7 Edm. 469); see % 1741, post; see, also, L. 1872. che 498 (9 Edm. 376); L. 1860, ch. 446 (4 Edm. 680); L. 1879, ch. 530 ; Briggs 9. Oliver, 68 N. Y. 336; Hart v. Ten Eyck, 2 Johns. Ch. 99; 'Charter 6. Stevens, 3 Denio, 35.
§ 1738. [Amended, 1895.] Warrant to seize chattel; proceedings thereupon.- Where the action is brought in the supreme court, 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 may be granted by the court, or a judge thereof, commanding the sheriff to seize the chattel, and safely keep it tɔ abide the final judgment in the action. The provisions of title 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. See ante, SS 635, 712. In effect Jan. 1, 1996; L. 1895, ch. 946.
§ 1739. Judgment.- 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 offi. cer designated therein, in like manner as where a sheriff sells personal property by virtue of an execu
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. It a deiendant, 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. See % 3, L. 1869.
§ 1740. Action in inferior court.- Where the action is brought in a court, other than one of those specified in the last section but one, if the 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 pro ceedings 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. New in part ; see lê 1-3, L. 1869.
8 1741. Application of this article. 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 'enfora ing a lien upon a chattel is specially prescribed by law, Id., & B.
SPECIAL PROVISIONS, REGULATING OTHER
PARTICULAR ACTIONS AND RIGHTS OF AC TION, AND ACTIONS BY OR AGAINST PAR TICULAR PARTIES.
TITLE I.-MATRIMONIAL ACTIONS.
OF ACTION. TITLE V. OTHER ACTIONS BY OR AGAINST PARTIDO
Arrow L Action to annul a void or voldable marriage.
2 Action for a divorce.
in this title,
ACTION TO ANNUL A VOID OR
fece 1742. Action by woman, married under 14, to annal marriage
1743. In what other cases marriage may be annulled,