Other than as provided in § 30-117 of this Part 2, an action to recover a chattel, with or without damages, for the wrongful taking, withholding, or detention thereof, may be brought in the City Court of Albany, except:
A.
Where the chattel was taken by virtue of a warrant, against the plaintiff, for the collection of a tax, assessment or fine, issued in pursuance of a statute of the state, or of the United States; unless the taking was, or the detention is unlawful, as specified in § 30-78 of this article.
B.
Where it was seized by virtue of an execution, or a warrant of attachment, against the property of the plaintiff, unless it was legally exempt from such seizure, or is unlawfully detained, as specified in § 30-78 of this article.
C.
Where it was seized by virtue of an execution, or
a warrant of attachment, against the property of a person other than
the plaintiff, and at the time of the commencement of the action the
plaintiff had not the right to reduce it into his possession.
The plaintiff may, at the time the summons is
issued, but not afterward, require the chattel to be replevied as
prescribed in this Part 2. For that purpose he must deliver to the
Court an affidavit and a written undertaking as herein prescribed,
which must be filed with the Clerk of the Court.
The affidavit prescribed in the last section
must particularly describe the chattel to be replevied and must contain
the following allegations:
A.
That the plaintiff is the owner of the chattel, or
is entitled to the possession thereof, by virtue of a special property
therein; the facts with respect to which must be set forth.
B.
That it is wrongfully detained by the defendant.
C.
The alleged cause of the detention thereof, according
to the best knowledge, information, and belief of the person making
the affidavit.
D.
That it has not been taken by virtue of a warrant,
against the plaintiff, for the collection of a tax, assessment or
fine, issued in pursuance of a statute of the state, or of the United
States; or, if it has been taken under color of such a warrant, either
that the taking was unlawful, by reason of defects in the process,
or other causes specified, or that the detention is unlawful by reason
of facts specified which have subsequently occurred.
E.
That it has not been seized by virtue of an execution
of warrant of attachment, against the property of the plaintiff, or
of any person from or through whom the plaintiff has derived title
to the chattel, since the seizure thereof; or, if it has been so seized,
that it was exempt from the seizure, by reason of facts specified,
or that its detention is unlawful, by reason of facts specified which
have subsequently occurred.
F.
Its actual value.
Where the affidavit describes two (2) or more
chattels of the same kind, it must state the number thereof, and where
it describes a chattel in bulk, it must state the weight, measurement,
or other quantity. Where it describes two (2) or more chattels to
be replevied, it may, at the election of the plaintiff, state the
aggregate value of all, or separately the value of any chattel or
of any class of chattels, and the aggregate value of the remainder,
if any. Where it states separately the value of one (1) or more chattels
or classes of chattels, the defendant may require, as prescribed in
the following provisions of this article, the return of any or all
of the chattels or classes of chattels, the value of which is thus
stated, or of the portion thereof which has been replevied. If he
procure such a return, the remainder must be delivered to the plaintiff,
except as is otherwise prescribed in this article.
The undertaking must be to the effect that the
sureties are bound in a specified sum not less than twice the value
of the chattel, as stated in the affidavit, for the prosecution of
the action, for the return of the chattel to the defendant, if possession
thereof is adjudged to him, or if the action abates, or is discontinued,
before the chattel is returned to the defendant; and for the payment
to the defendant of any sum, which the judgment awards to him against
the plaintiff.
The affidavit to be delivered to the Court, in behalf of the plaintiff, for a requisition to replevy a chattel, may be made by the plaintiff's agent or attorney, if the material facts are within his personal knowledge; or if the plaintiff is not within the City of Albany or in any town adjoining thereto within the County of Albany where the attorney resides or has his office, or is not capable of making the affidavit. The affidavit to be delivered to the Court, either in behalf of the defendant, with a notice that he requires the return of the chattel, or in behalf of a person not a party, who makes a claim as prescribed in § 30-91 of this article, may be made by an agent or attorney, if the material facts are within his personal knowledge, or if the defendant or claimant as the case may be, is not within the City of Albany or in any town adjoining thereto within the County of Albany, and capable of making the affidavit. When the affidavit is made by an attorney or agent, he must state therein what allegations, if any, are made upon his information and belief; and he must set forth therein the grounds of his belief, as to all matters not stated upon his knowledge, and the reason why the affidavit is not made by the party or the claimant.
Upon receiving the affidavit and undertaking,
the Court must grant a written requisition, which must be issued by
the Clerk of the Court requiring the Marshal to whom the summons is
delivered to replevy the property described in the affidavit, on or
before a day specified in the requisition, which must be at least
six (6) days before the return day of the summons. The requisition
and copies of the affidavit and undertaking must be delivered to the
Marshal with the summons.
If any chattel described in the affidavit is
found in the possession of the defendant or of his agent, the Marshal
to whom the summons, copy affidavit, copy undertaking and original
requisition are delivered after the undertaking has been approved
by the Court, as prescribed in this Part 2, must forthwith replevy
it by taking into his possession. He must thereupon without delay
serve upon the defendant a copy of the summons, affidavit, requisition
and undertaking by delivering the same to him personally, if he can
be found within the City of Albany or within any town adjoining thereto
within the County of Albany, or if he cannot be so found, to the person,
if any, from whose possession the chattel is taken; or if neither
can be found within the City of Albany, or within any town adjoining
thereto within the County of Albany, by leaving a copy at the usual
place of abode of either, with a person of suitable age and discretion.
In case neither the defendant nor the person, if any, from whose possession
the chattel is taken has any place of abode within said City or town,
service may be made in such manner as the Court may direct.
If any chattel, described in the affidavit,
is secured or concealed in a building or inclosure, the Marshal must
publicly demand its delivery. If it is not delivered, pursuant to
the demand, he must cause the building or inclosure to be broken open,
and must take the chattel into his possession.
A Marshal who has replevied a chattel must retain
it in his possession, keeping it in a secure place, until the person
who is entitled to the possession thereof, is ascertained, as prescribed
in this Part 2. He must then deliver it to that person upon request
and payment of his lawful fees, and necessary expenses for taking
and keeping it.
The Marshal must, on or before the return day
of the summons, make a return to the requisition, under his hand,
stating all his proceedings thereupon; and file it, with the requisition,
with the Clerk. The return must state the manner in which the summons,
affidavit, requisition and undertaking were served; and, if they were
served otherwise than by delivering the requisite copies to the defendant
personally, the reason therefor, and the name of the person to whom
the copies were delivered, unless his name is unknown to the Marshal,
in which case the return must describe him so as to identify him,
as nearly as may be.
At any time after the chattel has been replevied,
and at least two (2) days before the return day of the summons, the
defendant, unless he requires a return of the chattel, may serve upon
the plaintiff or upon the Marshal a written notice that he excepts
to the plaintiff's sureties; otherwise he is deemed to have waived
all objections to them. If such a notice is served, the sureties must
justify upon the return of the summons, or the plaintiff must then
give new undertaking to the same effect as the original undertaking,
with other sureties, who must then appear and justify before the Court.
At any time before the return of the summons
the defendant may, if he does not except to the plaintiff's sureties,
serve upon the Clerk a notice that he requires the return of the chattel
replevied. With the notice he must deliver to the Clerk the following
papers:
A.
An affidavit, containing an allegation, either that
the defendant is the owner of the chattel, 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.
B.
An undertaking, to the effect that the sureties 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, and for the payment to him of any sum, which the judgment awards against the defendant. The sureties in the undertaking must justify before the Court, upon the return of the summons. If the plaintiff has stated separately in his affidavit the value of one (1) or more chattels, or classes of chattels, as prescribed in § 30-79 of this article, the defendant may require a delivery of part of the property replevied, as prescribed in that section.
If the defendant neither excepts to the plaintiff's sureties, nor requires the return of the chattel, within the time prescribed for that purpose, or if he fails to procure the allowance of his undertaking, or if the plaintiff, after the defendant has excepted to his sureties, duly procures the allowance of his undertaking, the Marshal must except in the case specified in § 30-91 of this article, and immediately deliver the chattel to the plaintiff. If the plaintiff, after the defendant has excepted to his sureties, fails to procure the allowance of his undertaking, or if the defendant after he has required the return of the chattel, procures the allowance of his undertaking, the Marshal must immediately deliver the chattel to the defendant.
The Marshal 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 the sum of one hundred
dollars ($100.), and is also liable to him for all damages which he
sustains thereby.
At any time before the 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 Marshal who executed the
requisition in his behalf, stating that he makes such claim, specifying
the chattel or chattels to which it relates, if two (2) 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 Marshal 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 Marshal may, in his discretion deliver it to the claimant without
incurring any liability to the plaintiff, by reason of so doing.
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 Marshal 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 (3) months after the delivery of the chattel
to the plaintiff, and must be served within three (3) months after
it is issued. An action cannot be maintained against a Marshal by
a person so entitled to make a claim, except as prescribed in this
section.
The indemnity to be furnished to the Marshal by the plaintiff, as prescribed in the last section but one, must consist of a written undertaking to him, in an amount at least double the actual value of the property claimed, indemnifying him against any liability, for damages, costs or expenses, to be incurred in an action, brought against him, by reason of the taking or detention of the chattel, or its delivery to the plaintiff. Each of the sureties, besides possessing the other qualifications required by law, must be a freeholder or householder in the City of Albany or in any town adjoining thereto within the County of Albany. The Marshal before delivering the chattel, may except to the sufficiency of the sureties in the same manner and with like effect as provided in § 30-112 of this Part 2.
At any time before a chattel or chattels which have been replevied are actually delivered to either party, and at least two (2) days before the return day of the summons, a person, not a party to the action, who claims a right to the possession of the chattel or chattels so replevied, or any part thereof, which right is claimed to have existed at the time when said chattel or chattels were replevied, and which he desires to assert, may make an affidavit and deliver the same to the Court, stating that he makes such claim, and does so without collusion with the defendant. The party shall also specify in such affidavit the chattel or chattels to which he makes claim, setting forth the facts upon which his right depends, and praying to be impleaded as a defendant in the action. The Court may thereupon grant leave to said party to appear and defend and the provisions of this Part 2 in relation to the defendant or defendants originally proceeded against, so far as applicable, shall apply to said party, and the Court may, in its discretion, make such order or direct such delivery of the possession of the property, as may be just, and thereupon the entire controversy may be determined in the action. Nothing in this section, however, shall be construed to affect the rights of the parties to maintain a separate action, or to recover damages for the wrongful taking or detention of a chattel unless judgment is awarded against him, as herein provided, on the merits. In that case the Court may grant leave to said party to appear and defend, and the provisions of this Part 2 in relation to the defendant or defendants originally proceeded against, then apply to said party.
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.
Where a chattel has been replevied, and the
defendant has not required the return thereof, pending the action,
as prescribed in the foregoing sections, he may, in his answer, demand
judgment for the return thereof, either with or without damages for
the taking, withholding, or detention.
An execution for the delivery of a chattel must
particularly describe the property and designate the party to whom
the judgment awards possession thereof. It must require the Marshal
to deliver the possession of the property within the City of Albany
or within any town adjoining thereto within the County of Albany,
to the party entitled thereto. If a sum of money is awarded by the
same judgment, it may be collected by virtue of the same execution;
or a separate execution may be issued for the collection thereof,
omitting the direction to deliver possession of the property. If one
(1) execution is issued for both purposes, it must contain with respect
to the money to be collected, the same directions as an execution
against property or against the person as the case required.
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.
The judgment, verdict or decision must fix the
damages, if any, of the prevailing party.
A.
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 afterward delivered by the
Marshal to the unsuccessful party, or to a person not a party, it
must also fix the value of the chattel at the time of the trial.
B.
In a case where the unsuccessful party had a special
property therein, not equal to the full valuation of the chattel,
to fix the value of the special property.
Where the action is brought to recover two (2)
or more chattels, the judgment, verdict or decision may award to one
(1) party one (1) or more distinct chattels which can be identified
and set apart from the others, and the residue awarded 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.
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.
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 Part 2. 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 afterward delivered to the plaintiff or to a person not a party, as prescribed in this Part 2, 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 § 30-99B of this article, 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 the possession thereof, until the sum so awarded is collected, or otherwise paid.
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 direction:
A.
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 Marshal if the chattel cannot be found within the
City of Albany or within any town adjoining thereto within the County
of Albany, to satisfy the sum so awarded with interest and his fees,
out of the property of the party against whom the judgment is rendered.
B.
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.
For the purpose of taking possession of a chattel,
by virtue of such an execution, the powers of the Marshal are the
same as where he is required to replevy a chattel.
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 to
release from custody 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 similar execution against the plaintiff.
In such an action against the sureties the Marshal'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.
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 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.
Where the defendant does not appear, and the
summons has not been personally served upon him, and a chattel, or
a part of a chattel, to recover which the action is brought, has been
replevied, and the proceedings thereupon have been duly taken, as
prescribed in this Part 2, the Court 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 (2) or more chattels, with
respect to those which have been replevied, in like manner and with
the like effect as if the summons had been personally served.
Where the summons has been personally served
upon the defendant, or where he appears, the Court must proceed to
hear and determine the action, although the plaintiff has not required
the chattel to be replevied, or the Marshal has not been able to replevy
it.
