§ 1391. Additional personal property exempt in certain cases. [AMENDED BY CH. 542 OF 1879.] In addition to the exemptions, allowed by the last section, necessary household furniture, working tools and team, professional instruments, furniture and library, not exceeding in value two hundred and fifty dollars, together with the necessary food for the team, for ninety days, are exempt from levy and sale by virtue of an execution, when owned by a person, being a householder, or having a family for which he provides, except where the execution is issued upon a judgment, recovered wholly upon one or more demands, either for work performed in the family as a domestic, or for the purchase-money, of one or more articles, exempt as prescribed in this or the last section. § 1392. Woman, etc., entitled to same exemption as householder. [AMENDED BY CH. 416 OF 1877.] Where the judgment debtor is a woman, she is entitled to the same exemptions, from levy and sale by virtue of an execution, subject to the same exceptions, as prescribed in the last two sections, in the case of a householder. 1393. Military pay, rewards, et cetera, exempt from execution and other legal proceedings.-The pay and bounty of a non-commissioned officer, musician or private in the military or naval service of the United States or the state of New York; a land warrant, pension or other reward heretofore or hereafter granted by the United States, or by a state, for military or naval services; a sword, horse, medal, emblem or devise of any kind presented as a testimonial for services rendered in the military or naval service of the United States or a state; and the uniform, arms and equipments which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure for non payment of taxes, or in any other legal proceeding; except that real property purchased with the proceeds of a pension granted by the United States for military or naval services, and owned by the pensioner, or by his wife or vidine, is subject to seizure and sale for the collection of taxes or assessments lawfully levied thereon. [AM'D BY CH. 348 of 1897. In effect Sept. 1, 1896.] * So in original. § 1394. Right of action for taking, etc., exempt property. A right of action to recover damages, or damages awarded by a judgment, for taking or injuring personal property, exempt by law from levy and sale, by virtue of an execution, are exempt, for one year after the collection thereof, from levy and sale, by virtue of an execution, and from seizure in any other legal proceeding. § 1395. Burying ground, when exempted. Land set apart as a family or private burying ground, and heretofore designated, as prescribed by law, in order to exempt the same, or hereafter designated for that purpose, as prescribed in the next section, is exempt from sale, by virtue of an execution, upon the following conditions, only: 1. A portion of it must have been actually used for that purpose. 2. It must not exceed in extent, one-fourth of an acre. 3. It must not contain, at the time of its designation, or at any time afterwards, any building or structure, except one or more vaults, or other places of deposit for the dead, or mortuary monuments. § 1396. How exempt burying ground designated. In order to desig nate land, to be exempted as prescribed in the last section, a notice, containing a full description of the land to be exempted, and stating that it has been set apart for a family or private burying ground, must be subscribed by the owner; acknowledged or proved, and certified, in like manner as a deed to be recorded in the county where the land is situated; and recorded in the office of the clerk or register of that county, in the proper book for recording deeds, at least three days before the sale of the land, by virtue of the execution. § 1397. Homestead; when exempted. A lot of land, with one or more buildings thereon, not exceeding in value one thousand dollars, owned, and mpied as a residence, by a householder having a family, and heretofore designated as an exempt homestead, as prescribed by law, or hereafter designated for that purpose, as prescribed in the next section, is exempt from sale by virtue of an execution, issued upon a judgment, recovered for a debt contracted after the thirtieth day of April, eighteen hundred and fifty; unless the judgment was recovered wholly for a debt or debts, contracted before the designation of the property, or for the purchase-money thereof. But no property heretofore or hereafter designated as an exempt homestead, as prescribed by law, or by the next section, shall be exempt from taxation, or from sale for non-payment of taxes or assessments. [AM'D CH. 156 OF 1883.] § 1398. How exempt homestead designated. [AMENDED BY CH. 416 OF 1877.] In order to designate property, to be exempted as prescribed in the last section, a conveyance thereof, stating, in substance, that it is designed to be held as a homestead, exempt from sale by virtue of an execution, must be recorded, as prescribed by law; or a notice, containing a full description of the property, and stating that it is designed to be so held, must be subscribed by the owner, acknowledged or proved, and certified, in like manner as a deed to be recorded in the county where the property is situated; and must be recorded in the office of the clerk of that county, in a book kept for that purpose, and styled the "homestead exemption book." § 1399. Married Woman's homestead; when exempted. A lot of land, with one or more buildings thereon, owned by a married woman, and occupied by her as a residence, may be designated as her exempt homestead, as prescribed in the last section; and the property so designated is exempt from sale, by virtue of an execution, under the same circumstances, and subject to the same exceptions, as the homestead of a householder having a family. § 1400. When exemption to continue after owner's death. The exemption, prescribed by the last three sections, continues, after the death of the person in whose favor the property was exempted, as follows: 1. If the decedent was a woman, it continues, for the benefit of her surviving children, until the majority of the youngest surviving child. 2. If the decedent was a man, it continues, for the benefit of his widow and surviving children, until the majority of the youngest surviving child, and until the death of the widow. But the exemption ceases earlier, if the property ceases to be occupied, as a residence, by a person for whose benefit it may so continue, except as otherwise prescribed in the next section. § 1401. Exemption; when not affected by temporary suspension of residence. The right to exemption, of a person entitled thereto, as prescribed in the last four sections, is not affected by a suspension of the occupation of the exempt property, as a residence, for a period not exceeding one year, which occurs in consequence of injury to, or destruction of, the dwelling-house upon the premises. § 1402. If value of homestead exceeds $1,000, lien attaches to surplus. The exemption of a homestead, otherwise valid under the provisions of this article, is not void because the value of the property, designated as exempt, exceeds one thousand dollars. In that case, the lien of a judgment attaches to the surplus, as if the property had not been designated as an exempt homestead; but the property cannot be sold by virtue of an execution, issued upon a judgment, as against which it is exempt. After the return of such an execution, the owner of the judgment may maintain a judgment creditor's action, to procure a judgment directing a sale of the property, and enforcing his lien upon the surplus. § 1403. Id.; how proceeds to be marshalled when property is sold. Where the judgment, in a judgment creditor's action brought as prescribed in the last section, or in any other action affecting the title to an exempt homestead, directs the sale of the property, the court must so marshal the 283 proceeds of the sale, that the right and interest of each person in the proceeds shall correspond, as nearly as may be, to his right and interest in the property sold. Money, not exceeding one thousand dollars, paid to a judgment debtor, as representing his interest in the proceeds, is exempt for one year after the payment, as the property sold was exempt; unless, before the expiration of the year, he causes real property to be designated as an exempt homestead, as prescribed in section 1398 of this act; in which ca: e, the exemption ceases, with respect to so much of the money, as was not expended for the purchase of that property; and the exemption of the property so designated extends to every debt against which the property sold was exempt. Where the exemption of property, sold as prescribed in this section, has been continued after the judgment debtor's death, or where he dies after the sale, and before payment to him of his proportion of the proceeds of the sale, the court may direct that portion of the proceeds, which represents his interest, to be invested for the benefit of the person or persons, entitled to the benefit of the exemption; or to be otherwise disposed of, as justice requires. § 1404. Exemption of real property; how cancelled. The owner of real property, exempt as prescribed in this article, may, at any time, subscribe a notice, and personally acknowledge the execution thereof, before an officer authorized by law to take the acknowledgment of a deed, to the effect that he cancels all exemptions from levy or sale by virtue of an execution affecting the property, or a particular part thereof, fully described in the notice. The cancellation takes effect when such a notice is recorded, as prescribed in this article for recording a notice to effect the exemption so cancelled. Any other release or waiver, hereafter executed, of an exemption of real property, allowed by this article, or of an exemption of a homestead, or a private or family burying-ground, allowed by the provisions of law heretofore in force, is void; provided, however, that nothing herein contained shall be so construed as to prevent the husband and wife from jointly conveying or mortgaging property so exempt. [AM'D BY CH. 202 OF 1894. Took effect March 31, 1894.] ARTICLE SECOND. LIEN OF AN EXECUTION UPON PERSONAL PROPERTY; LEVY UPON AND SALE OF PERSONAL PROPERTY; RIGHTS OF INDEMNITORS OF SHERIFF. SECTION 1405. Personal property bound by execution. 1406. Order of preference among executions. 1407. Id.; when attachments also are issued. 1408. Id.; when issued from court not of record. 1409. Title of bona fide purchasers before levy, not affected, 1410. Execution may be levied upon current money. 1411. Levy upon certain evidences of debt. 1412. Interest of bailor in goods pledged may be sold. 1413. When partners may apply for release of property levied upon. 1414. Undertaking to be given. 1415. Provision, where a warrant of attachment has also been levied, etc. 1416. When the undertaking enures to other judgment creditors. 1417. How partner's interest sold; rights, etc., of purchaser. 1418. Claim of property by a third person, how tried, 1419. Proceedings, if claimant succeeds. 1420. Inquisition not to prejudice claimant's right. 1421. In action against officer, indemnitors may be substituted as defendants. 1422. Notice of application and proofs thereupon. 1423. Terms may be imposed. 1424. When indemnity related to part of property. 1425. Application when officer is joined with indemnitors. 1426. Effect of the order. 1427. Officer to whom indemnity is given, required to give notice of action, 4429. Notices of sale to be posted. 1405. Personal property bound by execution. The goods and chattels of a judgment debtor, not exempt, by express provision of law, from levy and sale by virtue of an execution, and his other personal property, which is expressly declared by law, to be subject to levy by virtue of an execution, are, when situated within the jurisdiction of the officer to whom an execution against property is delivered, bound by the execution, from the time of the delivery thereof to the proper officer, to be executed but not before. § 1406. Order of preference among executions. Where two or more executions against property are issued out of the same or different courts of record, against the same judgment debtor, the one first delivered, to an officer, to be executed, has preference, notwithstanding that a levy is first made, by virtue of an execution subsequently delivered; but if a levy upon and sale of personal property has been made, by virtue of the junior execution before an actual levy, by virtue of the senior execution, the same property shall not be levied upon or sold, by virtue of the letter.* § 1407. Id.; when attachments also are issued. Where there are one or more executions, and one or more warrants of attachment, against the property of the same person, the rule prescribed in the last section prevails, in determining the preferences of the executions or warrants of attachment; the defendant in the warrants of attachment being, for that purpose, regarded as a judgment debtor. $1408. Id.; when issued from court not of record. But an execution, issued out of a court not of record, or a warrant of attachment, granted in an action pending in a court not of record, if actually levied, has preference over another execution, issued out of any court, of record or not of record, which has not been previously levied. § 1409. Title of bona fide purchasers before levy, not affected. The title to personal property, acquired before the actual levy of an execution, by a purchaser in good faith, and without notice that the execution has been issued, is not affected by an execution delivered, before the purchase was made, to an officer, to be executed. § 1410. Execution may be levied upon current money. [AMENDED BY CH. 416 OF 1877.] The officer to whom an execution against property is delivered, must levy upon current money of the United States, belonging to the judgment debtor; and must pay it over, as so much money collected, without exposing it for sale; except that where it consists of gold coin, he must sell it, like other personal property; unless he is otherwise directed, by an order of a judge, or by the judgment in the particular cause. § 1411. Levy upon certain evidences of debt. [AMENDED BY CH. 416 OF 1877.] The officer, to whom an execution against property is delivered, must levy upon and sell, a bill, or other evidence of debt, belonging to the judgment debtor, which was issued by a moneyed corporation to circulate as money; or a bond or other instrument for the payment of money, belonging to the judgment debtor, which was executed and issued, by a government, State, county, public officer, or municipal or other corporation, and is in terms negotiable, or payable to the bearer, or holder. § 1412. Interest of bailor in goods pledged may be sold. The interest of the judgment debtor in personal property, subject to levy, lawfully pledged, for the payment of money, or the performance of a contract or agreement, may be sold in the hands of the pledgee, by virtue of an execution against property. The purchaser at the sale acquires all the right and interest of the judgment debtor, and is entitled to the possession of the property, on complying with the terms and conditions, upon which the judgment debtor could obtain possession thereof. This section does not apply to property of which the judgment debtor is unconditionally entitled to the possession. So in the original. § 1413. When partners may apply for release of property levied upon. Where an officer has seized personal property of a partnership, before or after its dissolution, upon a levy upon the interest therein of a partner, made by virtue of an execution against his individual property, the other partners, or former partners, having an interest in the property, or any of them, may, at any time before the sale, apply to a judge of the court, or to the county judge of the county, where the seizure was made, upon an affidavit, showing the facts, for an order, directing the officer to release the property, and to deliver it to the applicant. § 1414. Undertaking to be given. Upon such an application, the applicant must give an undertaking, with at least two suretics, approved by the judge, to the effect, that he will account to the purchaser, upon the sale to be made by virtue of the execution, of the interest of the judgment debtor in the property seized, in like manner as he would be bound to account to an assignee of such an interest; and that he will pay to the purchaser the balance, which may be found due upon the accounting, not exceeding a sum, specified in the undertaking, which must be not less than the value of the interest of the judgment debtor, in the property seized by the sheriff, as fixed by the judge. The provisions of sections 695 and 696 of this act apply to the proceedings, taken as prescribed in this and the last section. § 1415. Provision, where a warrant of attachment has also been levied, etc. Where a warrant of attachment has been levied upon the interest of a defendant, as a partner, in personal property of a partnership, and the attachment has been discharged as to that interest, as prescribed in sections 693 and 694 of this act, a levy, by virtue of an execution against his individual property, cannot be made upon his interest in the same property, unless the warrant of attachment has been vacated or annulled. § 1416. When the undertaking enures to other judgment creditors. Where personal property of a partnership has been released, upon giving an undertaking, as prescribed in the last three sections, if the execution by virtue of which the levy was made, is set aside, or is satisfied without a sale of the interest levied upon, the undertaking enures to the benefit of each judgment creditor of the same judgment debtor then having an execution in the hands of the same officer, or of another officer, having authority to levy upon that interest, as if it had been given to obtain a release from a seizure, made by virtue of such an execution. § 1417. How partner's interest sold; rights, etc., of purchaser. Where personal property of a partnership has been so released, the interest of the judgment debtor therein may be sold by the officer; and the purchaser, upon the sale, acquires all that interest, as if he was an assignee thereof. If the purchase-money exceeds the amount of all the executions and warrants of attachment against the property of the same judgment debtor, of which the officer has notice, and of the lawful fees and charges thereon, the officer must pay the surplus into court, for the benefit of the judgment debtor, or other person entitled thereto. § 1418. Claim of property by a third person, how tried. If personal property, levied upon as the property of the judgment debtor, is claimed by or in behalf of another person, as his property, the officer may in his discretion, empanel a jury to try the validity of the claim. § 1419. Proceedings if claimant succeeds. If by their inquisition the jurors find that the property belongs to the claimant they must also determine its value. Thereupon the officer may relinquish the levy unless the judgment creditor gives him an undertaking with at least two sufficient sureties, to the effect that the sureties will indemnify him to an amount therein specified, not less than twice the value of the property as determined |