The sheriff must, 1715. Return, etc., by sheriff. within twenty days after he has delivered a chattel replevied by him, to the party entitled to the possession thereof, or to a third person, as prescribed in this article, file with the clerk the plaintiff's affidavit, and the accompanying requisition, with a return, stating in what manner he has executed the latter. If he has omitted to replevy a part of the chattel, or of two or more chattels, described in the affidavit, the return must state the cause of the omission. Substitute for 217, Code of Procedure. 1716. Id.; how compelled. If the sheriff fails to comply with the last section, either party may require him so to do, within ten days after service of a notice to that effect, or to show cause, at a term of the court designated in the notice, why he should not be punished for a contempt of the court. The notice may be served at any time before final judgment, except that it cannot be served on the part of the defendant, before answer. An omission to comply with such a notice is punishable as a contempt of the court. New in form; see 1725, post. 1717. Replevin papers to be made part of judgment-roll, etc. The plaintiff's affidavit, with the accompanying requisition, and the return of the sheriff, must be made a part of the judgment-roll in the action; and a copy of each of them must be furnished to the court, or the referee, upon the trial of an issue of fact, with a copy of the summons and of the pleadings. New. See 1725, post. 1718. Action not affected by failure to replevy.— 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. 2 R. S. 525, 19 (2 Edm. 543); Nichols v. Michael, 23 N. Y. 264, 268; Ross v. Cassidy, 27 How. Pr. 416; Ellis v. Lersuer, 48 Barb. 539. 1719. When and how plaintiff may abandon his claim as to part. 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. New. See 1728, post. $1720. Title; how stated in pleading. -- 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. New. See 166, Code of Procedure, and 1724, post: Pattison r. Adams, 7 Hill, 126; Bond e. Mitchell, 3 Barb. 304; Vogel v. Badcock, 1 Abb. Pr. 176; Hunter e. Hudson R. I. & M. Co., 20 Barb. 493; Davis r. Hoppoch, 6 Duer, 234: Simmons . Lyons, 3 J. & S. 531; 8. c., 55 N. Y. 671; Tell v. Beyer, 38 id. 161; Vandenburgh v. Van Valkenburgh, 8 Barb. 217; Burns v. Robbins, 1 Code R. 62; Depew v. Leal, 2 Abb. 131. $1721. Taking, etc.; how stated in complaint.— Where the complaint contains a suflicient 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. Substituted for 2 R. S. 528, 36 (2 Edm. 546); Scofield v. Whitelegge, 49 N. Y. 259: 12 Abb. N. S. 320: Treat . Hathorn, 3 Hun, 346; Childs v. Hart, 7 Barb. 370; Ross v. Cassidy, 27 How. Pr. 416; Nichols . Michael, 23 N. Y. 264; Stockwell v. Phelps, 34 id. 363; Kissam r. Roberts, 6 Bos. 154. 1722. Damages when chattel injured, etc., by de fendant. 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. New. Smith v. Orser, 43 Barb. 187; 42 N. Y. 132; Brewster v. Silliman, 38 id. 423; Allen v. Fox, 51 id. 562; New York Guaranty and Indemuity Co. v. Flynn, 55 id. 563; Rowley v. Gibbs, 14 Johns. 385; Young e. Willett, s Bos. 456. $1723. Answer of title in third person.-- 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. New. Ingraham v. Hammond, 1 Hill, 353; see, also, Stowell r. Otis, 71 N. Y. annulled; see, also, Spoor v. Jordan, 1 Alb. L. J. 123; Prosser . Woodward, 21 Wend. 203. § 1724. Answer that property was distrained doing damage. 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. Code of Procedure, 166; 2 R. S. 528, 37 and 42 (2 Edm. 546). 1725. Defendant may demand judgment for return. -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 detention 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. New. Cochran v. Gottwald, 9J. & Sp. 317; Whitcomb v. Hoffman, 14 Hun, 335. 1726. Verdict, etc., what to state. 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. Code of Procedure, 261, amended; New York Guaranty and Indemnity Co. v. Flynn, 55 N. Y. 653; Brewster v. Silliman, 38 id. 423; Keep v. Kaufman, 6 J. & Sp. 476. 1727. Substitute in certain cases for finding as to value.-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. New. Allen v. Judson, 71 N. Y. 77; Seaman v. Luce, 23 Barb. 240; Fitzhugh e. Wiman, 9 N. Y. 559; Townsend v. Bargy, 57 id, 665; Rhoads v. Woods, 41 Barb. 471; see Weaver r. Darby, 45 id. 411; Smith e. Keyes, S. C. 650. 1728. Verdict, etc., for part of several chattels; judgment thereupon.-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 award 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. New. Emmerson v. Bleakley, 5 Abb. Pr. N. S. 350, 366 and 367. 1729. Damages how ascertained on default.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. New. See 1215, ante. $1730. Final judgment; docketing the same.-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 1727 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 re turned to him after replevin, that he is entitled to pos session thereof, until the sum so awarded is collected, |