1704. The defendant, if he does not except to the 119 N.Y.298. plaintiff's sureties as prescribed in the last section, may, 13 NY within the time allowed to him for such an exception, serve upon the sheriff, a notice that he requires a return of the chattel replevied. With the notice, De Dunst deliver to the sheriff the following papers: 1. An affidavit, containing an allegation, either that the defendant is the owner of the chamei, or that he is lawfully entitled to the possession thereof, by virtue of a special property therein, the facts with respect to which must be set forth. 2. An undertaking, executed by at least two sureties, to the effect that they are bound, in a specified sum, not less than twice the value of the chattel, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if delivery thereof is adjudged, or if the action alates in consequence of the defendant's death; and for the payment to him of any sum, which the judgment awards against the defendant. Within three days after serving a notice, requiring a return of the chattel, as prescribed in this section, the defendant must serve upon the plaintiff's attorney, notice of the justification of the sureties to the undertaking. § 1705. The justification of sureties, as prescribed in either of the last two sections, must take place, either in the county where the chattel was replevied, or in the county where one of the sureties resides. The provisions, regulating he justification of bail, contained in article third of title irst of chapter seventh of this act, govern, except as othervise expressly prescribed in this article, with respect to the otice of justification of the sureties; the officer before hom they must justify; the substitution of new sureties r a new undertaking; the examination and qualifications f the sureties; and the allowance of the undertaking. ut after the allowance, the undertaking and examination ust be delivered to the sheriff. § 1706. If the defendant neither excepts to the plainff's sureties, nor requires the return of the chattel, within Le time prescribed for that purpose; or if he makes deult in serving notice of the justification of his sureties, in procuring the allowance of his undertaking; or if the aintiff, after the defendant has excepted to his sureties, ily procures the allowance of his undertaking; the sheriff ust, except in the case specified in section one thousand ven hundred and nine of this act, immediately deliver e chattel to the plaintiff. If the plaintiff, after the dendant has excepted to his sureties, makes default in servg notice of justification, or in procuring the allowance of s undertaking; or if the defendant, after he has required e return of the chattel, duly procures the allowance of s undertaking; the sheriff must immediately deliver the attel to the defendant. When the chattel is delivered by 1 City Ct. 383. the sheriff to either party, as prescribed in this section, the sheriff ceases to be responsible for the sufficiency of the sureties of either party; until then, he is responsible for the sufficiency of the sureties of the plaintiff or of the defendant, as the case may be. § 1707. A sheriff, who delivers to either party, without the consent of the other, a chattel replevied by him, except as prescribed in the last section, or by virtue of an execution issued upon a judgment in the action, forfeits, to the party aggrieved, two hundred and fifty dollars; and is also liable to him for all damages which he sustains thereby. § 1708. Where the sheriff duly delivers a chattel to either party, as prescribed in the last section but one, he must, at the same time, deliver, to the adverse party, the undertaking, received by him from the party to whom the chattel is delivered, together with the examination of the sureties, and the judge's allowance, if any. § 1709. At any time before a chattel, which has been replevied, is actually delivered to either party, if a person, not a party to the action, claims, as against the defendant, a right to the possession thereof, existing at the time when it was replevied, an affidavit may be made and delivered to the sheriff, in his behalf, stating that he makes such a claim; specifying the chattel or chattels to which it relates, if two or more chattels have been replevied, and the claim relates only to part of them; and setting forth the facts upon which his right of possession depends. In that case, the sheriff may, in his discretion, before he delivers the chattel to the plaintiff, serve upon the plaintiff's attorney a copy of the affidavit, with a notice that he requires indemnity against the claim. If the indemnity is not furnished, within a reasonable time after the plaintiff becomes entitled to the delivery of the chattel, the sheriff may, in his discretion, deliver it to the claimant, without incurring any liability to the plaintiff, by reason of so doing. § 1710. A person, not a party to the action, who has served an affidavit, as prescribed in the last section, may maintain an action against the sheriff, who has delivered the chattel to the plaintiff, to recover his damages, by reason of the taking, detention, or delivery of the chattel. But the summons in such an action must be issued, within three months after the delivery of the chattel to the plaintiff, and must be served, within three months after it is issued. action cannot be maintained against a sheriff, by a person so entitled to make a claim, except as prescribed in this section. An § 1711. The indemnity, to be furnished to the sheriff by the plaintiff, as prescribed in the last section but one. must consist of a written undertaking to him, executed by at least two sureties, to the effect that they will indemnify. him against any liability for damages, costs, or expenses, to 7 Civ. Pro. Super. Ct. 53 N. Y. Super. Ct. (J. & S.) 122. 115 N.Y.170. § 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 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. 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. 53 N. Y. § 1730. Final judgment for the plaintiff must award to Super. Ct. him possession of the chattel recovered by him, with his (J. & S.) 52. 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 de fendant has demanded judgment for the return of a chattel; which was replevied, and afterwar is 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, an 1, 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 judgment may be docketed, and the docket thereof creates a lien, as if it 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 135 N.Y. 430. 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 un |