§ 1718. The plaintiff may proceed in the action, and recover therein the chattel, or its value, although he has not required the sheriff to replevy it, or the sheriff has not been able to replevy it.

§ 1719. Where part only of two or more distinct chattels, specified in the complaint, has been replevied, the plaintiff's attorney may, with or before the notice of trial, serve upon the defendant's attorney a notice, that he abandons so much of his claim, as relates to those which have not been replevied; and thenceforth the proceedings are the same, as if the action had been brought to recover only the chattels which have been replevied. A copy of the notice must be furnished to the court, or to the referee, upon the trial of an issue of fact, with a copy of the summons and of the pleadings.

1720. An allegation, in a pleading interposed by either party, to the effect that the party pleading, or a third person, was, at the time when the action was commenced, or the chattel was replevied, as the case may be, the owner of the chattel, or that it was then his property, is a sufficient statement of title, unless the right of action or defence rests upon a right of possession, by virtue of a special property; in which case, the pleading must set forth the facts, upon which the special property depends, so as to show, that at the time when the action was commenced, or the chattel was replevied, as the case may be, the party pleading, or the third person, was entitled to the possession of the chattel.

§ 1721. Where the complaint contains a sufficient statement of the plaintiff's title, a general allegation, that the defendant wrongfully took the chattel, is sufficient, without setting forth the facts, showing that the taking was wrongful. Where the taking of the chattel is not complained of, but the action is founded upon its wrongful detention, the complaint must set forth the facts, showing that the detention was wrongful.

§ 1722. Where the plaintiff recovers a chattel which was injured, or otherwise depreciated in value, while it was in the possession or under the control of the defendant, under such circumstances, that the plaintiff might recover damages for the injury or depreciation, in an action brought against the defendant therefor, he may recover the same damages, in an action brought as prescribed in this article. In that case, he must set forth the facts in his complaint, and demand judgment for damages accordingly.

§ 1723. The defendant may by answer defend, on the ground that a third person was entitled to the chattel, without connecting himself with the latter's title.

1724. Where the defence is, that a chattel, to recover which the action is brought, was distrained doing damage, an allegation that the defendant, or the person by whose command he acted, was then lawfully possessed of the real property, and that the chattel was distrained, while it was doing damage thereupon, is sufficient, without setting forth the title to the real property.

1725. Where a chattel has been replevied and delivered to the plaintiff, or to a person not a party to the action, as prescribed in the foregoing sections of this article, the defendant's attorney may, within the time allowed to him for the service of a notice of trial, serve upon the plaintiff's attorney, a notice, that the defendant demands judgment for the return of the chattel, or for its value, either with or without damages for the deten

tion thereof. Upon the trial, a copy of such a notice must be furnished to the court or referee, with a copy of the summons and of the pleadings.

§ 1726. The verdict, report, or decision must fix the damages, if any, of the prevailing party. Where it awards to the plaintiff a chattel, which has not been replevied, or where it awards to the prevailing party a chattel, which has been replevied, and afterwards delivered by the sheriff to the unsuccessful party, or to a person not a party, it must also, except in a case specified in the next section, fix the value of the chattel, at the time of the trial.

§ 1727. A verdict, report, or decision, in favor of the defendant, shall not fix the value of the chattel, in either of the following cases:

1. Where the plaintiff is the general owner of the chattel; but it was rightfully distrained doing damage, and its value is greater than the damages sustained by the defendant, by the injury for which it was distrained; in which case, those damages must be fixed.

2. Where the plaintiff is the general owner of the chattel, but the defendant had a special property therein, and the value of the chattel is greater than the value of the special property, or the sum charged upon the chattel by reason thereof; in which case, the value of the special property, or the sum so charged, must be fixed.

In either of the cases specified in this section, the verdict, report, or decision must set forth the reason, why the value of the chattel is not fixed. 1728. Where the action is brought to recover two or more chattels, the verdict, report, or decision may award to one party one or more distinct chattels, which can be identified, and set apart from the others, and the residue to the other party; and, if necessary, the complaint must be amended so as to conform thereto. The final judgment, rendered thereupon, must reward to each party the same relief, with respect to the finding in his favor, as if separate judgments were rendered; except that, where each party is entitled to an absolute award of a sum of money, against the other, the smaller sum must be deducted from the greater, and the balance only must be awarded.

1729. Where the plaintiff is entitled to judgment by default, for want of an appearance or pleading, the court, to which he applies for judgment, may ascertain and determine the damages to which he is entitled, and the value of the chattel, if necessary; or may direct a reference, or a writ of inquiry, for that purpose.

§ 1730. Final judgment for the plaintiff must.award to him possession of the chattel recovered by him, with his damages, if any. If a chattel recovered was not replevied, or if, after it was replevied, it was delivered to the defendant, or to a person not a party, as prescribed in this article, the final judgment must also award to the plaintiff the sum fixed as the value thereof, to be paid by the defendant, if possession thereof is not delivered to the plaintiff. If the defendant has demanded judgment for the return of a chattel, which was replevied, and afterwards delivered to the plaintiff, or to a person not a party, as prescribed in this article, final judgment in his favor therefor must award to him possession thereof, with his damages, if any; and it must also award to him the sum fixed as the value thereof, to be paid by the plaintiff, if possession is not delivered to the defendant. But if the case is one of those specified in section one thousand seven hundred and twenty-seven of this act, final judgment in favor of the defendant must award to him the sum, fixed as therein specified, and, if it is not collected, the delivery of the chattel; or, if the chattel has not been replevied,

or has been returned to him after replevin, that he is entitled to possession thereof, until the sum so awarded is collected, or otherwise paid. The judg ment may be docketed, and the docket thereof creates a lien, as if was a judgment for the full amount of the money, including costs, which it awards, either absolutely or conditionally.

§ 1731. An execution for the delivery of the possession of a chattel, and to satisfy, out of the property of the judgment debtor, a 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 one thousand seven hundred and twenty-seven of this act, the execution must require the sheriff to deliver possession of the chattel to the defendant, unless the plaintiff, 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 delivered 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.

§ 1732. For the purpose of taking possession of a chattel, by virtue of such an execution, the powers of the sheriff are the same, as where he is required to replevy a chattel.

§ 1733. A plaintiff, who has recovered a final judgment, cannot maintain an action against the sureties in an undertaking, given in behalf of the defendant to procure a return of the chattel, or against the bail of a defendant, who has been arrested, until after the return, wholly or partly unsatisfied or unexecuted, of an execution in his favor for the delivery of the posses. sion 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 judginent, 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 affected 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, notwithstanding 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; proceedings thereupon.

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 commence. ment 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 the 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 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 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,

1741. 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 enforcing a lien upon a chattel is specially prescribed by law.

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 OF 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 void or voidable MARRIAGE.

$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 suc

ceed, 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 physi
cal 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.] An action may be maintained by the woman to a procure 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.