§§ 1159, 1236, Consol. Act. 37 Hun, 288. §§ 1159,1235, Consol. Act. 31 Hun, 349. 44 Id. 344. 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, not withstanding 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; § 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. Where the action is brought in the supreme court, a superior city court, the marine 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 to abide the final judgment in the action. The provisions of title third of chapter seventh of this act apply to such a 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 he 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 han one of those specified in the last section but one, if the laintiff is not in possession of the chattel, a warrant, com tanding the proper officer to seize the chattel, and safely keep it to abide the judgment, may be issued, in like man er as a warrant of attachment may be issued in an action ounded upon a contract, brought in the same court; and he provisions of law, applicable to a warrant of attachent, issued out of that court, apply to a warrant, issued s prescribed in this section, and to the proceedings to proure it, and after it has been issued; except as otherwise ecified in the judgment. A judgment in favor of the laintiff, in such an action, must correspond to a judgment, endered as prescribed in the last section, except that it ust direct the sale of the chattel by an officer to whom an xecution, issued out of the court, may be directed; and e payment of the surplus, if its safe keeping is necessary, the county treasurer, for the benefit of the owner. § 1741. This article does not affect any existing right or medy to foreclose or satisfy a lien upon a chattel, without tion; and it does not apply to a case, where another mode enforcing a lien upon a chattel is specially prescribed law. 1880, Conoi, Act, 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 CF 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. ARTICLE FIRST. ACTION TO ANNUL A VOLD OR VOIDABLE MARRIAGE. § 1742. Action by woman, married under 16, to annul marriage. 1743. In what other cases mar- 1744. Action when party was 1747. Id. where party was a 1748. Action by next friend of idiot or lunatic. 1719. Issue; when entitled to succeed, etc. 1751. § 1750. Action on the ground of 1752. Action on the ground of 1754. Judgment annulling a marriage; how far conclusive. 1755. How next friend of infant, lunatic, etc., allowed to sue, etc. § 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. 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 atrained 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. But a 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. § 1745. [Am'd 1882.] An action to annul a marriage, upon the ground that the former husband or wife of one of 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. § 1746. An action to annul a marriage, on the ground that one of the parties thereto was an idiot, may be maintained, at any time during the lifetime of either party, by any relative of the idiot, who has an interest to avoid the marriage. § 1747. 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 rind; but, in that case, the marriage shall not be annulled, if it appears that the parties freely cohabited as husband and wife, after the lunatic was restored to a sound mind. $ 1748. 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 lifetime 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. § 1749. 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. § 1750. 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. § 1751. 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 custody of one or more of the children, in which case the court must give such directions relating thereto, as the interests of the child or |