ARTICLE SECOND.

Action to foreclose a lien upon a chattel.

Sec. 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. Action; when and in what courts maintainable. 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 jurisliction to render a judgment, in an action founded upon a conract, 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, h. 498 (9 Edm. 376); L. 1860, ch. 446 (4 Edm. 680); L. 1879, ch. 530.

§ 1738. [Am'd, 1895.] Warrant to seize chattel; proceedngs thereupon.

Where the action is brought in the supreme court, the city ourt of the city of New York, or a county court, if the plaintiff s not in possession of the chattel, a warrant may be granted by the court, or a judge thereof, commanding the sheriff to eize the chattel, and safely keep it to abide the final judgment n the action. The provisions of title third of chapter seven f this act apply to such warrant, and to the proceedings to proure it, and after it has been issued, as if it was a warrant of ttachment, except as otherwise expressly prescribed in this rticle.

L. 1895, ch. 946. See ante, §§ 635, 712.

§ 1739. Judgment.

In an action brought in a court specified in the last section, inal 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 fficer 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, o 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 he owner of the chattel, and for the safe keeping of the surplus, f necessary, until it is claimed by him. If a defendant, upon vhom the summons is personally served, is liable for the amount of the lien, or for any part thereof, it may also award payment ccordingly.

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 ssued 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.

See §§ 1-3, L. 1869.

§ 1741. Application of this article.

This article does not affect any existing right or remedy to fore close 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 s chattel is specially prescribed by law.

Id., § 5.

462

CHAPTER XV.

Special Provisions, Regulating Other Particular Actions and Rights of Action, and Actions by or Against Particular Parties.

ITLE I.-Matrimonial Actions.

ITLE II.-Actions Relating to a Corporation.

ITLE III.-Actions Relating to the Estate of a Decedent.

ITLE IV.-Other Special Actions and Rights of Action.

ITLE V.-Other Actions by or Against Particular Parties.

TITLE I.

Matrimonial actions.

rticle 1. Action to annual 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.

ARTICLE FIRST.

Action to annul a void or voidable marriage.

c. 1742. Action by woman, married under 14, to annul marriage.

1743. In what other cases marriage may be annulled.

1744. Action when party was under the age of consent.

1745. Id.; when former husband or wife was living.

1746. Id.; where party was an idiot.'

1747. Id.; where party was a lunatic.

1748. Action by next friend of idiot or lunatic.

1749. Issue; when entitled to succeed, etc.

1750. Action on the ground of force, fraud, etc.

1751. Custody, maintenance, etc., of issue of such a marriage.

1752. Action on the ground of physical incapacity.

1753. Certain proceedings regulated in action to annul marriage.

1754. Judgment annulling a marriage, how far conclusive.

1755. How next friend of infant, lunatic, etc., allowed to sue, etc.

1742. [Am'd, 1887.] Action by woman, married under 4, to annul marriage.

An action may be maintained, by the woman, to procure a judgent, declaring a marriage contract void, and annulling the marage, under the following circumstances:

1. Where the plaintiff had not attained the age of sixteen years t the time of the marriage.

2. Where the marriage took place without the consent of her ither, mother, guardian, or other person having the legal charge f her person.

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

L. 1887, ch. 22; L. 1841, ch. 257 (4 Edm. 512), am'd. See, also, 2 R. S. 12, § 21 (2 Edm. 148).

§ 1743. In what other cases marriage may be annulled. An action may also be maintained to procure a judgment, delaring a marriage contract void and annulling the marriage, for

either of the following causes, existing at the time of the mar riage:

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 enterie into the marriage state. But an action can be maintained, under this subdivision, only where the incapacity continues, and is incurable.

2 R. S. 142, § 20 (2 Edm. 147).

§ 1744. Action when party was under the age of consent An action to annul a marriage, on the ground that one of the parties had not attained the age of legal consent, may be main tained 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 acta to be maintained by any person, as the next friend of the infast But a marriage shall not be annulled, at the suit of a party wa was of the age of legal consent when it was contracted, or whet it appears that the parties, for any time after they attained that age, freely cohabited as husband and wife.

2 R. S. 142, § 21 (2 Edm. 148), am'd. See, also, § 26, and §§ 1748 and 1774 post.

§ 1745. [Am'd, 1882.] Id.; when former husband or wif was living.

An action to annul a marriage, upon the ground that the formet husband or wife of one of the parties was living, the fort marriage being in force, may be maintained by either of the parties during the life-time of the other, or by the former hush or wife. Where it appears, and the judgment determines, that t subsequent marriage was contracted by at least one of the part thereto in good faith, and with the full belief that the form husband or wife was dead, or without any knowledge on the p' of the innocent party of such former marriage, the issue of subsequent marriage, born or begotten before the final judgmen are deemed for all purposes the legitimate children of the pare who at the time of the marriage was competent to contract, are entitled to succeed as such, in the same manner as ot legitimate children, to the real and personal estate of said pare and the issue so entitled must be specified in the judgment, a the innocent party must be awarded their custody, and he or s is entitled to appoint a guardian of their persons by will.

This section shall be construed to extend to all cases where *** judgment or decree of nullity of such subsequent marriage rendered after the passage of this act whether such subseque marriage was contracted before or after the passage hereof. Id., §§ 22 and 23, consolidated and am'd.

§ 1746. Id.; where party was an idiot.

An action to annul a marriage, on the ground that one of the parties thereto was an idiot, may be maintained, at any tim

during the life-time of either party, by any relative of the idiot, who has an interest to avoid the marriage.

2 R. S. 142, § 24.

§ 1747. Id.; where party was a lunatic.

An action to annul a marriage, on the ground that one of the parties thereto was a lunatic, may be maintained, at any time during the continuance of the lunacy, or, after the death of the lunatic, in that condition, and during the life of the other party to the marriage, by any relative of the lunatic, who has an interest to avoid the marriage. Such an action may also be maintained by the lunatic, at any time after restoration to a sound mind; but in that case, the marriage should not be annulled, if it appears that the parties freely cohabited as husband and wife, after the lunatic was restored to a sound mind.

Id., §§ 25 and 27, consolidated.

§ 1748. Action by next friend of idiot or lunatic. Where no relative of the idiot or lunatic brings an action to annul the marriage, as prescribed in either of the last two sections, the court may allow an action for that purpose to be maintained, at any time during the life-time of both the parties to the marriage, by any person as the next friend of the idiot or lunatic. But this section does not apply, where the marriage might have been annulled, at the suit of the lunatic, as prescribed in the last section.

Id., § 26. See, also, § 1744, ante, and § 1755, post.

§ 1749. Issue; when entitled to succeed, etc.

A child of a marriage, which is annulled on the ground of the idiocy or lunacy of one of its parents, is deemed for all purposes, the legitimate child of the parent who is of sound mind.

Id., § 28.

§ 1750. Action on the ground of force, fraud, etc. An action to annul a marriage, on the ground that the consent of one of the parties thereto was obtained by force, duress, or fraud, may be maintained, at any time, by the party whose consent was so obtained. Such an action may also be maintained, during the life-time of the other party, by the parent or the guardian of the person of the party, whose consent was so obtained, or by any relative of that party, who has an interest to avoid the marriage. But a marriage shall not be annulled on the ground of force or duress, if it appears that, at any time before the commencement of the action, the parties thereto voluntarily cohabited as husband and wife; or on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.

Id., §§ 30 and 31, am'd; L. 1862, ch. 246. See § 1743, ante.

1751. Custody, maintenance, etc., of issue of such a marriage.

The court must, upon the application of the plaintiff, award the custody of the children of a marriage, which is annulled on the ground of force, duress, or fraud, to the innocent parent, unless it appears that the latter is unfit, for any reason, to have the