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executed, or subsequently recorded, is bound by all proceedings taken in the action, after the filing of the notice, to the same extent as if he was a party to the action.

§ 1672. Each county clerk, with whom such a notice is filed, must immediately record it, in a book kept in his office for that purpose, and inder it to the name of each defendant, specified in a direction, appended at the foot of the notice, and subscribed by the attorney for the plaintiff. The expense of procuring a new book, when necessary, must be paid out of the county treasury, as other county charges.

§ 1673. Where a defendant sets up in his answer a counterclaim, upon which he demands an affirmative judgment, affecting the title to, or the possession, use, or enjoyment of, real property, he may, at the time of filing his answer, or at any time afterwards before final judgment, file a like notice. The last three sections apply to such a notice. For the purpose of such an application, the defendant filing such a notice is regarded as a plaintiff, and the plaintiff is regarded as a defendant.

§ 1674. [am'd 1892.] After the action is settled, discontinued, or abated, or final judgment is rendered therein against the party filing the notice, and the time to appeal therefrom has expired, or if a plaintiff filing the notice unreasonably neglects to proceed in the action, the court may, in its discretion, upon the application of any person aggrieved, and upon such notice as may be directed or approved by it, direct that a notice of the pendency of an action, filed as prescribed in the last four sections, be cancelled of record by a particular clerk, or by all the clerks, with whom it is filed and recorded. The cancellation must be made by a note to that effect, on the margin of the record, referring to the order. Unless the order is entered in the same clerk's office, a certified copy thereof must be filed therein before the notice is cancelled. In a judgment creditor's action, the court may, at any stage of the proceeding, upon notice to the plaintiff or to the judg ment creditor to be affected thereby, direct that a notice of the pendency thereof be cancelled, upon payment into court of the amount of the judgment or judgments sought to be enforced in such action, together with accrued interest and such sum in addition thereto as the court may deem sufficient to cover interest likely to accrue during the pendency of the action and costs. Or in lieu thereof, the court may, in its discretion, order that an undertaking be given in a sum double the amount of the judgment or judgments sought to be enforced, with two sufficient sureties, to be approved by the court or a judge thereof, conditioned that the defendant or defendants applying therefor will pay the judgment or judgments sought to be enforced against said property, with interest and costs in the event that a final judgment shall be entered in such judgment creditor's action in favor of the judgment creditor or creditors, to the effect that such real estate was, at the time of the filing of said notices of pendency of action, equitably chargeable therewith. A copy of said undertaking, with notice of the filing of the same, shall be served upon the attorney for the judgment creditor, and notice of not less than two days of the justification of the sure ties. Upon the approval of such undertaking by the court or a judge thereof, the court may direct that the notice of pendency of action be cancelled of record, in the manner above provided. Where a judgment creditor's action is brought by the plaintiff as well on

his own behalf as on behalf of such other creditors as may come in and contribute to the expense of such action, notice of the application to cancel such lis pendens shall be given as well to the plaintiff as to such other judgment creditors as shall, before the service of the notice of motion or order to show cause, have served, upon the attorney appearing for the defendant in whose name the title shall stand at the time of the commencement of the action, a notice to the effect that such judgment creditor elects to come in and contribute to the expenses of such action, which notice shall also describe the judgment by giving the name of the court in which it was recovered, such recovery and the amount thereof, and shall be accompanied by an affidavit of the judgment creditor or his attorney to the effect that such judgment has been duly docketed, giving the date and place of such docket, and that an execution has been issued thereon to the sheriff of the proper county and has been returned unsatisfied, and the amount claimed to be due thereon. In such case the court shall provide for like deposit or like security, as the case may be, for the benefit of the judgment creditor giving such notice before the cancellation of such notice of pendency of action.

1675. Where a judgment, in an action specified in this title, allots to any person a distinct parcel of real property, or contains a direction for the sale of real property, or confirms such an allotment or sale, it may also, except in a case, where it is expressly prescribed in this act that the judgment may be enforced by execution, direct the delivery of the possession of the property to the person entitled thereto. If a party, or his representative or successor, who is bound by the judgment, withholds possession from the person thus declared to be entitled thereto, the court, besides punishing the disobedience as a contempt, may, in its discretion, by order, require the sheriff to put that person into possession. Such an order must be executed, as if it was an execution for the delivery of the possession of the property.

§ 1676. Where a judgment, rendered in an action for partition, for dower, or to forclose a mortgage upon real property, directs a sale of the real property, the officer making the sale must, out of the proceeds, unless the judgment otherwise directs, pay all taxes, assessments, and water rates, which are liens upon the property sold, and redeem the property sold from any sales for unpaid taxes, assessments, or water rates, which have not pparently become absolute. The sums, necessary to make those payments and redemptions, are deemed expenses of the sale, within the meaning of that expression, as used in any provision of article second, third, or fourth of this title.

§ 1677. Where real property, sold by virtue of a judgment, rendered in an action specified in the last section, is situated in a county, other than that in which the judgment is entered, the judgment must be also entered

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in the office of the clerk of the county wherein the property is situated, before the purchaser can be required to pay the purchase-money, or to accept a deed. The clerk of the latter county must enter it in the judgment. book kept by him, upon filing with him a copy thereof, certified by the clerk with whom it is entered.

§ 1678. [am'd 1881.] A sale made in pursuance of any provision of this title must be at public auction to the highest bidder. Notice of such sale must be given by the officer making it, as prescribed in section four teen hundred and thirty-four of this act for the sale by a sheriff of real property, by virtue of an execution, unless the property is situated wholly or partly in a city in which a daily newspaper is published, and, in that case, by publishing notice of the sale in such a daily paper at least twice in each week for three consecutive weeks, or in a weekly paper pubiished in a city, once in each of the six weeks immediately preceding the sale, or in the city of New York or the city of Brooklyn, in two such daily papers. Notice of the postponement of the sale must be published in the paper or papers wherein the notice of sale was published. The terms of the sale must be made known at the sale, and if the property, or any part thereof is to be sold, subject to the right of dower, charge or lien, that fact must be declared at the time of the sale. If the property consists of two or more distinct buildings, farms or lots they shall be sold separately, unless otherwise ordered by the court; and provided further that where two or more buildings are situated on the same city lot they may be sold together.

Sales heretofore made, which would be lawful according to the terms of this act, are, by the act, declared valid.

§ 1679. A commissioner, or other officer making a sale, as prescribed in this title, or a guardian of an infant party to the action, shall not, nor shall any person, for his benefit, directly or indirectly, purchase, or be interested in the purchase of, any of the property sold; except that a guardian may, where he is lawfully authorized so to do, purchase for the benefit or in behalf of his ward. The violation of this section is a misdemeanor; and a purchase, made contrary to this section, is void.

§ 1680. Where a tenant for life, or for a term of years, suffers judgment to be taken against him, by consent or by default, in an action of ejectment, or an action for dower, the heir, or person owning the reversion or remain der, may, after the determination of the particular estate, maintain an action of ejectment to recover the property.

§ 1681. If, during the pendency of an action specified in this title, the defendant commits waste upon, or does any other damage to, the property in controversy, the court, or a judge thereof, may, upon the application of the plaintiff, and due proof of the facts by affidavit, grant, without notice or security, an order, restraining him from the commission of any further waste upon or damage to the property. Disobedience to such an order may be punished, as a contempt of the court. This section does not affect the plaintiff's right to a permanent or a temporary injunction in such an action.

§ 1682. If the court, in which an action relating to real property is pending, is satisfied that a survey of any of the property, in the possession of either party, or of a boundary line between the par ies, or between the property of either of them, and of another person, is necessary or expedient, to enable either party to prepare a pleading, or prepare for trial, or for any other proceeding in the action, it may, upon the application of either party, upon notice to the party in possession, make an order, granting to the applicant leave to enter upon that party's property, to make such ▾

survey.

§ 1683. An order, made as prescribed in the last section, must specify, by a description as definite as may be, the property or boundary line to be surveyed, and the real property of the adverse party, upon which it is necessary to enter for that purpose. A copy thereof must be served on the

owner or occupant of that property, before entry thereupon.

§ 1684. After serving a copy of the order, as prescribed in the last section, the party obtaining it, his necessary surveyors, servants, and agents, may enter, for the purpose of making the survey, upon the real property described in the order, and may there make the survey; but each person so entering is responsible for any unnecessary injury done by him; and the party procuring the order is responsible for such an injury, done by any person so entering.

1685. If the defendant, in an action of ejectment or an action for dower, aliens the real property in question, after the filing of a notice, as specified in section one thousand six hundred and seventy of this act, and an execution against him for the plaintiff's damages is returned wholly or partly unsatisfied, an action may be maintained by the plaintiff against any person, who has been in possession of the property, under the defendant's conveyance, to recover the unsatisfied portion of the damages, for a time not exceeding that, during which he possessed the property.

§ 1686. Any action specified in this title may be maintained by or against an infant in his own name; and article fourth of title second of chapter fifth of this act applies to such and action, except as otherwise prescribed ih sections one thousand five hundred and thirty-five and one thousand five hundred and thirty-six of this act.

§ 1687. Nothing contained in this title is to be construed, as to prevent the plaintiff from uniting in the same complaint two or more causes of action, in any case specified in section four hundred and eighty-four of this

act.

§ 1688. A special proceeding to recover real property cannot be taken, except in a case specially prescribed by law.

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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 reple-
vin; 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.

1719. When and how plaintiff may
abandon his claim as to part.
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.

1725. Defendant may demand judg ment for return.

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 thereupon.

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.

1734. Sheriff's return evidence therein. 1735. Injury, etc., no defence.

1636. Abatement and revival of action.

§ 1689. 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 four hundred and eighty-four of this act.

§ 1690. 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 one thousand six 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 one thousand six hundred and ninety-five of this act.

3. Where it 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.

§ 1691. 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 main. tained 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 tak ing or detaining the same or any other chattel, unless it was rendered against him upon the merits.

§ 1692. An action to recover a chattel, the title to which has been transferred to the plaintiff, since the wrongful taking, or during the wrongful 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.

§ 1693. Where a chattel is replevied before the service of the summons as prescribed in this article, the seizure thereof by the sheriff is regarded a

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