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 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.(*) It [2 R. S., 533, Part 3, ch. 8, tit. 12, § 64 (3 R. S., 5th ed., 848; 2 Edm., 551), adapted to the modern procedure and enlarged in its scope. was held in Livingston v. Hammer, 7 Bosw., 670, that this provision is not applicable to the defendant's undertaking for a return; and in Letson v. Dodge, 61 Barb., 125, there is a dictum, that it is not applicable to any undertaking given under the Code of Procedure. This section will abrogate these rulings.] PART II. return, therein. § 1734.* In such an action against the sureties, the sheriff's re- Sheriff's turn to the execution is presumptive evidence of a failure to deliver, evidence or to return a chattel, or to pay a sum of money, according to the terms of the undertaking.(*) [Id., part of § 65, adapted to the present practice. The form of the modern undertaking dispenses with the provisions of that section, respecting the measure of damages. Section 66 is rendered unnecessary by § 1727, ante.] etc., no § 1735.* It is not a defence to such an action, that the chattel Injury, was injured or destroyed, after it was replevied, unless the injury or defence. 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; designed to settle the disputed question, whether a destruction, etc., by the act of God, discharges the undertaking. See Carpenter v. Stevens, 12 Wend., 589; contra, Suydam v. Jenkins, 3 Sandf. S. C., 614. The reasoning in the latter case, pp. 644, 645, appears to be quite conclusive.] ARTICLE SECOND. ACTION TO FORECLOSE A LIEN UPON A CHATTEL. when and § 1737. An action may be maintained to foreclose a lien upon Action: a chattel, for a sum of money, in any case where such a lien exists in what 285 (a) Applied to justices' courts, substituting the constable for the sheriff, by § 2931, p. 39. courts maintainable. JUSTICE'S MANUAL at the commencement of the action. The action may be brought Warrant to seize chattel; ings thereupon. 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. [Founded upon L. 1869, ch. 738, § 1 (7 Edm., 469), which has been extended so as to embrace every case where a lien has been created, either at common law, by statute, or by special agreement, with the exceptions specified in § 1741, post. See, for statutory liens, L. 1872, ch. 498 (9 Edm., 376); L. 1860, ch. 446 ( Edm., 680); L. 1879, ch. 530. It was held, in Briggs v. Oliver, 68 N. Y., 336, that an action would lie in equity to foreclose a chattel mortgage. It is believed that this article will afford a much simpler, cheaper, and more speedy method of foreclosing such a mortgage than by an ordinary equitable action; and that it will be very beneficial in many other cases of liens, where the remedy is difficult and expensive, and the rights of the parties in pursuing the same, obscure.] § 1738.* Where the action is brought in the supreme court, a proceed- 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.(*) Judgment. [New. This section will extend the beneficial operation of the statute, by providing for cases which the act of 1869 does not reach, or in which the remedy may be ineffectual for want of any process to seize the property. Of course this section will not revive a lien, which has been lost in consequence of parting with the property, because § 1737, ante, is in terms confined to a case, where the lien existed at the commencement of the action.] § 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 286 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.(^) [From 83 of the act of 1869, with the addition of the last sentence.] PART II. in inferior 1740. Where the action is brought in a court, other than one Action of those specified in the last section but one, if the plaintiff is not in court 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. [Partly new; and partly taken from §§ 1-3 of the act of 1869.] Applica this 1741. This article does not affect any existing right or remedy to foreclose or satisfy a lien upon a chattel, without action; and it tion of does not apply to a case, where another mode of enforcing a lien upon a chattel is specially prescribed by law. [Id., § 5, amended by the addition of the final clause, to prevent the possibility of this article clashing with certain special remedies; for instance, those given by the statute relating to liens upon vessels, etc., by material men. Sections 2 and 4 of the act of 1869 are omitted as unnecessary.] article. (a) Applied to justices' courts by § 1740. 287 JUSTICE'S CHAPTER XV. SPECIAL PROVISIONS, REGULATING OTHER PAR- 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 II. Actions relating to a corporation. ARTICLE 1. Action by a corporation, and action against a corporation, to recover damages or property. 5. Provisions applicable to two or more of the actions specified in this title. ARTICLE FIRST. Complaint in actions by or against corpora tions. ACTION BY A CORPORATION, AND ACTION AGAINST A CORPORATION, TO RECOVER 1775. In an action brought by or against a corporation, the complaint must aver that the plaintiff, or the defendant, as the case may be, is a corporation; must state whether it is a domestic corporation or a foreign corporation; and, if the latter, the state, country or government, by or under whose laws it was created. But the plaintiff need not set forth, or specially refer to, any act or proceeding, by or under which the corporation was created. [Founded upon 2 R. S., 459, Part 3, ch. 8, tit. 4, § 13 (3 R. S., 5th ed., 756; 2 Edm., 479), the provisions of which have been extended, so as to establish an obligatory rule of pleading in the case therein provided for, and also where a foreign corporation is a party. According to various decisions, it is unnecessary for a domestic corporation plaintiff to state the fact of its corporate existence; if so, so much of this section of the R. S., as relates to plaintiffs, is an excrescence upon the statute book. These cases are cited by STRONG, J., in Kennedy v. Cotton, 28 Barb., 59, wherein it is said, that "the wisdom and convenience of the rule strongly commend its preservation". But other cases, cited in the same opinion, look the other way; and in Phænix Bank v. Donnell, 41 Barb., 571, SUTHERLAND, J., attacks the rule upon principle, and forcibly suggests that it must be subject to some exceptions, as where the corporate name is "John Smith". See, also, Bank of Havana v. Wickham, 16 How. Pr., 97, where the real plaintiff was an individual. Inasmuch as the rule is apparently inapplicable to defendants, and perhaps to foreign corporations, and rests upon the fiction that the complaint contains an implied allegation, it should be abolished, especially as the general self-incorporating statutes allow such an unrestricted choice of names, that it may sometimes be uncertain who is the real party.] PART II. proof of corporate unneces sary. § 1776. In an action, brought by or against a corporation, the When plaintiff need not prove, upon the trial, the existence of the corpo- existence ration, unless the answer is verified, and contains an affirmative allegation that the plaintiff, or the defendant, as the case may be, is not a corporation. [Id., § 3, as amended by L. 1864, ch. 422 (6 Edm., 296), and L. 1875, ch. 508, extended to a case where a foreign corporation sues, or is sued. The original provision was not applicable to a foreign corporation, which must prove its corporate existence, if a general denial is interposed. Waterville Man. Co. v. Bryan, 14 Barb., 182. There seems to be no good reason for such a distinction in a mere matter of pleading. See Roberts v. National Ice Co., 6 Daly, 426; Howe Sewing Machine Co. v. Robinson, 7 Daly, 399.] when § 1777. In an action or special proceeding, brought by or Misnomer, against a corporation, the defendant is deemed to have waived any waived. mistake in the statement of the corporate name, unless the mis nomer is pleaded in the answer, or other pleading in the defendant's behalf. [Id., § 14, amended so as to adapt it to the modern procedure.] foreign tion may § 1779. An action may be maintained by a foreign corporation, When in like manner, and subject to the same regulations, as where the corporaaction is brought by a domestic corporation, except as otherwise sue. specially prescribed by law. But a foreign corporation cannot maintain an action, founded upon an act, or upon a liability or obligation, express or implied, arising out of, or made and entered into in consideration of, an act, which the laws of the State forbid a cor |