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 re. turn, wholly or partly unsatisfied 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. 2 R. S. 533, 64 (2 Edm. 551); see Livingston v. Hammer, 7 Bosw. 670; Letson v. Dodge, 61 Barb. 125; Hagar v. Clute, 10 Hun, 447; Collins v. 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 deliver, or to return a chattel, or to pay a sum of money, according to the terms of the undertaking. Id., § 65. 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, 644, 645. §1736. Abatement and revival of action. 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 761 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. Laws 1880, ch. 270; Laws 1872, ch. 498. New in form; see 2 755-761, ante; see Potter v. Van Vrankin, 36 N. Y. 619; Webber's Ex'rs v. Underhill, 19 Wend. 449; Burkle v. Luce, 1 Comst. 163. 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 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, 21 (7 Edm. 469); see 1741, post; see, also, L. 1872. ch. 498 (9 Edm. 376); L. 1860, ch. 446 (4 Edm. 680); L. 1879, ch. 530; Briggs v. Oliver, 68 N. Y, 336; Hart v. Ten Eyck, 2 Johns. Ch. 99; Charter v. Stevens, 3 Denio, 35. § 1738. Warrant to seize chattel; proceedings thereupon.- 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. See ante, §§ 635, 712. New. 1739. Judgment. In an action brought in a court pecified 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 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. See 83, L. 1869. § 1740. Action in inferior court. Where the action is brought in a court, other than one of those specified in the fast section but one, if the plaintiff is not in pos. session 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. New in part; see 2 1-3, L. 1869. § 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 enforc ing a lien upon a chattel is specially prescribed by law. Id., 25. ! 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 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. 743. In what other cases marriage may be annulled. 4. Action when party was under the age of consent. 5. Id.; when former husband or wife was living. Id.; where party was an idiot. Id; where party was a lunatic. Action by next friend of idiot or lunatic. Essue; when entitled to succeed, etc. Action on the ground of force, fraud, etc. Custody, maintenance, etc., of issue of such a marriag 3Lc. 1752. Action on the ground of physical incapacity. 1753. Certain proceedings regulated in action to annul marriage. 1742. [Amended, 1887.] Action by woman, mar ried under 14, to annul marriage. 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: 1. Where the plaintiff had not attained the age of sixteen years at the time of the marriage. 2. Where the marriage took place without the consent of her father, mother, guardian, or other person having the legal charge of her person. 3. 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. L. 1841, ch 257 (4 Edm. 512), amended; see, also, 2 R. S. 142, 21 (2 Edm 148): see Bennett v. Smith, 21 Barb. 439; Aymer v. Roff, 3 Johns. Ch. 49. 1743. In what other cases marriage may be an nulled. 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 for mer 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 ob tained 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. 2R S. 142. 20 (2 Edm. 147): Devenbaugh v. Devenbaugh, 5 Paige, 554 Kaiser. Kaiser. 16 Hun, 602; Cropsey v. McKinney, 30 Barb. 47; Kinnier v. Kinnier, 45 N. Y. 535 Smith v. Woodworth, 44 Barb. 198; Haviland v. Haviland, 34 N. Y. 643; Anon., 15 Abb. N. S. 171; Palmer 7. Palmer, 1 Paige, 276; Wightman v. Wightman, 4 Johns. Ch. 343; L. 1862, ch. 246; Montgomery v. Montgomery. 3 Barb. Ch. 132; see Glins nian . Glinsman, 12 How. 32; Devenbaugh v. Devenbaugh, 5 Paige, 554 s. c.. 6 d. 175; B v B, 8 Abb. 44: s. c., 28 Barb. 299; Grittin v. Griffin, 47 Ñ. Y. 134, 136; see Griffin v. Griffin, 23 How. 183. |