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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 judgment 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, Cither 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 pos session 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.
g 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 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.
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, iven 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.
ACTION TO FORECLOSE A LIEN UPON A CHATTEL.
§ 1737. Action; when and in what
1738. Warrant to seize chattel; proceedings thereupon.
1740. Action in inferior court.
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 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. § 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.
SPECIAL PROVISIONS, REGULATING OTHER PARTICULAR ACTIONS AND RIGHTS OF ACTION, AND ACTIONS BY OR AGAINST PARTICULAR PARTIES.
TITLE II-ACTIONS RELATING TO A CORPORATION.
TITLE III.-ACTIONS RELATING TO THE ESTATE OF A DECEDENT.
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.
ACTION TO ANNUL A VOID OR VOIDABLE MARRIAGE.
§ 1742. Action by woman, married un- § 1750. Action on the ground of force,
der 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
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. An action may be maintained, by the woman, to procure a judg ment, declaring a marriage contract void, and annulling the marriage, under the following circumstances:
1. Where the plaintiff had not attained the age of fourteen 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 fourteen years.
1743. An action may also be maintained to procure a judgment, declaring a marriage contract void and annuliing 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 con
2. That the former husband or wife of one of the parties was living, and that the marriage with the former 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 obtained 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.
1744. An action to annul a marriage, on the ground that one of the parties had not attained the age of legal consent, may be maintained by the infant, or by either parent of the infant, or by the guardian of the infant's person; or the court may allow the action to be maintained by any person, as the next friend of the infant. But a marriage shall not be annulled, at the suit of a party who was of the age of legal consent when it was contracted, or where it appears that the parties, for any time after they attained that age, freely cohabited as husband and wife.
§ 1745. [am'd 1882.] An action to annul a marriage, upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the lifetime of the other, or by the former husband or wife. Where it appears, and the judgment determines, that the subsequent marriage was contracted by at least one of the parties thereto in good faith, and with the full belief that the former husband or wife was dead, or without any knowledge on the part of the innocent party of such former marriage, the issue of the subsequent marriage, born or begotten before the final judgment, are deemed for all purposes the legitimate children of the parent who at the time of the marriage was competent to contract, and are entitled to succeed as such, in the same manner as other legitimate children, to the real and personal estate of said parent; and the issue so entitled must be specified in the judgment, and the innocent party must be awarded their custody, and he or she is entitled to appoint a guardian of their persons by will.
This section shall be construed to extend to all cases where the judgment or decree of nullity of such subsequent marriage is rendered after the passage of this act, whether such subsequent marriage was contracted before or after the passage hereof.
1746. An action to annul a marriage, on the ground that one of the parties thereto was an idiot, may be maintained, at any time during the lifetime of either party, by any relative of the idiot, who has an interest to avoid the marriage.
$1747. An action to annul a marriage, on the ground that one of the parties thereto was a lunatic, may be maintained, at any time during the continuance of the lunacy, or, after the death of the lunatic in that condition, and during the life of the other party to the marriage, by any relative of the lunatic, who has an interest to avoid the marriage. Such an action may also be maintained by the lunatic, at any time after restoration to a sound mind; but, in that case, the marriage shall not be annulled, if it appears that the parties freely cohabited as husband and wife, after the lunatic was restored to a sound mind.
§ 1748. Where no relative of the idiot or lunatic brings an action to annual the marriage, as prescribed in either of the last two sections, the court may allow an action for that purpose to be maintained, at any time during the lifetime of both the parties to the marriage, by any person as
the next friend of the idiot or lunatic. But this section does not apply, where the marriage might have been annulled, at the suit of the lunatic, as prescribed in the last section.
1749. A child of a marriage, which is annulled on the ground of the idiocy or lunacy of one of its parents, is deemed, for all purposes, the legitimate child of the parent who is of sound mind.
1750. An action to annul a marriage, on the ground that the consent of one of the parties thereto was obtained by force, duress, or fraud, may be maintained, at any time, by the party whose consent was so obtained. Such an action may also be maintained, during the life-time of the other party, by the parent or the guardian of the person of the party, whose con sent was so obtained, or by any relative of that party, who has an interest to avoid the marriage. But a marriage shall not be annulled on the ground of force or duress, if it appears that, at any time before the commencement of the action, the parties thereto voluntarily cohabited as husband and wife; or on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.
§ 1751. The court must, upon the application of the plaintiff, award the custody of the children of a marriage, which is annulled on the ground of force, duress, or fraud, to the innocent parent, unless it appears that the latter is unfit, for any reason, to have the custody of one or more of the children, in which case the court must give such directions relating thereto, as the interest of the child or children require. The judgment may make provision for the education and maintenance of the children, out of the property of the guilty parent.
1752. An action to annul a marriage, on the ground that one of the parties was physically incapable of entering in the marriage state, may be maintained only by the injured party, against the party whose incapacity is alleged Such an action must be commenced, before two years have expired ince the marriage.
1753. In an action brought as prescribed in this article, a final judement, annulling the marriage, shall not be rendered by default, for want of an appearance or pleading, or upon the trial of an issue, without proof of the facts, upon which the allegation of nullity is founded. And the declaration or confession of either party to the marriage is not alone sufficient as proof; but other satisfactory evidence of the facts must be produced. In such an action, except where it is founded upon an allegation of the physical incapacity of one of the parties thereto, the court must, upon the application of either of the parties, make au order directing the trial, by a jury of all the issues of fact; or it may, of its own motion, make an order directing the trial, by a jury, of one or more issues of fact; for which purpose, the questions to be tried must be prepared and settled, as prescribed in section nine hundred and seventy of this act.
1754. A final judgment, annulling a marriage, rendered during the life-time of both the parties, is conclusive evidence of the invalidity of the marriage, in every court, of record or not of record, in any action or special proceeding, civil or criminal. Such a judgment, rendered after the death of either party to the marriage, is conclusive only as against the parties to the action, and those claiming under them.
1755. An order, allowing a person to maintain an action, as the next friend of an infant, as prescribed in section one thousand seven hundred