specified in section 147, 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 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. [Code, § 1730, without change except that the last clause is omitted.] § 149. Execution; contents thereof.-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 147, the execution must require the constable 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 constable'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 constable, 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 on a judgment for a sum of money. [Code, § 1731, without change.] § 150. Constable's power to take chattel.-For the purpose of taking possession of a chattel by virtue of such an execution, the powers of the constable are the same as where he is required to replevy a chattel. [Code, § 1732, making change as to officer.] § 151. Action on undertaking; when maintainable.-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. [Code, § 1733, without change.] § 152. Constable's return evidence therein.-In such an action against the sureties the constable'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. [Code, § 1734, making change as to officers.] § 153. Injury no defense. It is not a defense to such an action that the chattel was injured or destroyed after it was replevied, unless the injury or 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. [Code, § 1735, 154. Proceedings when summons not personally served.— Where the defendant does not appear and the summons has not been personally served on him, and a chattel or part of a chattel to recover which the action is brought has been replevied, and the proceedings thereon have been duly taken, as prescribed in this article; the justice must proceed to hear and determine the action with respect to that chattel or part of a chattel; or if the action is brought to recover two or more chattels, with respect to those which have been replevied; in like manner and with like effect as if the summons had been personally served. [Code, § 2932, without change.] § 155. When action not affected by failure to replevy.-Where the summons has been personally served on the defendant, or where he appears, the justice must proceed to hear and determine the action, although the plaintiff has not required the chattel to be replevied, or the constable has not been able to replevy it. [Code, § 2933, without change.] ARTICLE VII. PLEADINGS. Section 165. When issue to be joined. 166. Pleadings. 167. General rules of pleading. 168. First pleading to be complaint. 169. Complaint. 170. What causes of action may be joined. 171. Defendant must demur or answer. 172. When he may demur. 173. Demurrer of complaint must specify objection. 174. Demurrer and answer to same complaint. Section 176. Answer to verified complaint. 177. Answer to unverified complaint. 178. Counterclaim defined. 179. Rules respecting the allowance of counterclaims. 180. Consequence of neglect to plead counterclaim. 181. The last section qualified. 182. Counterclaim, when defendant is sued in a repre sentative capacity. 183. Counterclaim, when plaintiff is an executor or administrator. 184. When plaintiff may demur to answer. 185. Demurrer to counterclaim. 186. Demurrer to counterclaim must specify objection. 187. When objection may be taken by answer. 188. Objection, when deemed waived. 189. Account, or instrument for payment of money. 190. When complaint may be verified. 191. When answer to be verified. 192. Requirements concerning verified pleadings. 193. Verification; how and by whom made. 194. Form of affidavit of verification. 195. Remedy for defective verification, or want of verifi cation. 196. When allegations deemed admitted. 197. Amendments of pleadings. 198. Account how pleaded. Bill of particulars. 199. Private statute; how pleaded. 200. Pleading mitigating circumstances in action for a wrong. 201. Judgments; how pleaded. 202. Conditions precedent; how pleaded. 207. Partial defenses. 208. When defendant to demand affirmative judgment. Section 209. When pleadings admit part of plaintiff's claim to be just, action may be severed. 210. Complaint in actions by or against corporations. 211. Misnomer, when waived. Section 165. When issue to be joined.-Pleadings must be made and issue joined. 1. At the place and within one hour after the time specified in the summons for the return thereof; or 2. Where an order of arrest has been executed, within twelve hours after the defendant is brought before the justice; or 3. Where no summons is issued, within one hour after the time when the parties voluntarily appear for the purpose of commencing an action, unless the defendant within such time files with the justice a stipulation that the plaintiff may take judg ment as therein stated. Where both parties appear on the return of the summons, an issue must be joined before an adjournment is had, except when the defendant refuses or neglects to plead. [First part of Code, § 2934, rewritten, without intended change of substance, except that in subdivision 3 a provision is added dispensing with an answer if the defendant stipulates a judgment. The remainder of the existing § 2934 is omitted on the ground that it is a local provision applicable only in the former city of Brooklyn. The courts to which it refers were abolished by § 1350 of the Greater New York charter.] § 166. Pleadings.-The pleadings in a justice's court are: 1. The plaintiff's complaint. 2. The defendant's answer. 3. The defendant's demurrer to the complaint, or to one or more distinct causes of action separately stated therein. 4. The plaintiff's demurrer to the answer, or to one or more defenses or counterclaims stated therein. [Code, § 2935, without change, except that by subdivision 4 the plaintiff's right to demur is extended to any defense or counterclaim.] |