JUSTICE'S MANUAL. 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. Warrant to seize chattel; ings there upon. [Founded upon L. 1869, ch. 738, § 1 (7 Edm., 469), which has been extended so as to embrace every case where a lien has been created, either at common law, by statute, or by special agreement, with the exceptions specified in § 1741, post. See, for statutory liens, L. 1872, ch. 498 (9 Edm., 376); L. 1860, ch. 446 (4 Edm., 680); L. 1879, ch. 530. It was held, in Briggs v. Oliver, 68 N. Y., 336, that an action would lie in equity to foreclose a chattel mortgage. It is believed that this article will afford a much simpler, cheaper, and more speedy method of foreclosing such a mortgage than by an ordinary equitable action; and that it will be very beneficial in many other cases of liens, where the remedy is difficult and expensive, and the rights of the parties in pursuing the same, obscure.] 1738.* Where the action is brought in the supreme court, a proceed- 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.(*) Judgment. [New. This section will extend the beneficial operation of the statute, by providing for cases which the act of 1869 does not reach, or in which the remedy may be ineffectual for want of any process to seize the property. Of course this section will not revive a lien, which has been lost in consequence of parting with the property, because § 1737, ante, is in terms confined to a case, where the lien existed at the commencement of the action.] § 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 286 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.(*) [From § 3 of the act of 1869, with the addition of the last sentence.] PART II. in inferior 1740. Where the action is brought in a court, other than one Action of those specified in the last section but one, if the plaintiff is not in court 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. [Partly new; and partly taken from §§ 1-3 of the act of 1869.] 1741. This article does not affect any existing right or remedy to foreclose or satisfy a lien upon a chattel, without action; and it t does not apply to a case, where another mode of enforcing a lien upon a chattel is specially prescribed by law. [Id., § 5, amended by the addition of the final clause, to prevent the possibility of this article clashing with certain special remedies; for instance, those given by the statute relating to liens upon vessels, etc., by material men. Sections 2 and 4 of the act of 1869 are omitted as unnecessary.] Applica tion of article. (a) Applied to justices' courts by § 1740. 287 JUSTICE'S CHAPTER XV. SPECIAL PROVISIONS, REGULATING OTHER PAR- TITLE II. ACTIONS RELATING TO A CORPORATION. TITLE III. - ACTIONS RELATING TO THE ESTATE OF A DECEDENT. TITLE V. - OTHER ACTIONS BY OR AGAINST PARTICULAR PARTIES. TITLE II. Actions relating to a corporation. ARTICLE 1. Action by a corporation, and action against a corporation, to recover damages or property. 5. Provisions applicable to two or more of the actions specified in this title. Complaint in actions by or against corpora tions. ARTICLE FIRST. ACTION BY A CORPORATION, AND ACTION AGAINST A CORPORATION, TO RECOVER § 1775. In an action brought by or against a corporation, the complaint must aver that the plaintiff, or the defendant, as the case may be, is a corporation; must state whether it is a domestic corporation or a foreign corporation; and, if the latter, the state, country or government, by or under whose laws it was created. But the plaintiff need not set forth, or specially refer to, any act or proceeding, by or under which the corporation was created. [Founded upon 2 R. S., 459, Part 3, ch. 8, tit. 4, § 13 (3 R. S., 5th ed., 756; 2 Edm., 479), the provisions of which have been extended, so as to establish an obligatory rule of pleading in the case therein provided for, and also where a foreign corporation is a party. According to various decisions, it is unnecessary for à domestic corporation plaintiff to state the fact of its corporate existence; if so, so much of this section of the R. S., as relates to plaintiffs, is an excrescence upon the statute book. These cases are cited by STRONG, J., in Kennedy v. Cotton, 28 Barb., 59, wherein it is said, that "the wisdom and convenience of the rule strongly commend its preservation". But other cases, cited in the same opinion, look the other way; and in Phænix Bank v. Donnell, 41 Barb., 571, SUTHERLAND, J., attacks the rule upon principle, and forcibly suggests that it must be subject to some exceptions, as where the corporate name is "John Smith". See, also, Bank of Havana v. Wickham, 16 How. Pr., 97, where the real plaintiff was an individual. Inasmuch as the rule is apparently inapplicable to defendants, and perhaps to foreign corporations, and rests upon the fiction that the complaint contains an implied allegation, it should be abolished, especially as the general self-incorporating statutes allow such an unrestricted choice of names, that it may sometimes be uncertain who is the real party.] PART II. proof of corporate unneces § 1776. In an action, brought by or against a corporation, the When plaintiff need not prove, upon the trial, the existence of the corpo- existence ration, unless the answer is verified, and contains an affirmative alle- sary. gation that the plaintiff, or the defendant, as the case may be, is not a corporation. [Id., § 3, as amended by L. 1864, ch. 422 (6 Edm., 296), and L. 1875, ch. 508, extended to a case where a foreign corporation sues, or is sued. The original provision was not applicable to a foreign corporation, which must prove its corporate existence, if a general denial is interposed. Waterville Man. Co. v. Bryan, 14 Barb., 182. There seems to be no good reason for such a distinction in a mere matter of pleading. See Roberts v. National Ice Co., 6 Daly, 426; Howe Sewing Machine Co. v. Robinson, 7 Daly, 399.] when § 1777. In an action or special proceeding, brought by or Misnomer, against a corporation, the defendant is deemed to have waived any waived. mistake in the statement of the corporate name, unless the mis nomer is pleaded in the answer, or other pleading in the defendant's behalf. [Id., § 14, amended so as to adapt it to the modern procedure. ] foreign tion may § 1779. An action may be maintained by a foreign corporation, when in like manner, and subject to the same regulations, as where the corporaaction is brought by a domestic corporation, except as otherwise sue. specially prescribed by law. But a foreign corporation cannot maintain an action, founded upon an act, or upon a liability or obligation, express or implied, arising out of, or made and entered into in consideration of, an act, which the laws of the State forbid a cor JUSTICE'S MANUAL poration or association of individuals to do, without express authority of law. This section does not affect the validity of a meeting of the stockholders or directors of a foreign corporation, held within the State, where such a meeting is authorized by the laws of the state, country, or government, by or under which the corporation is created; or of an act, done at such a meeting, which is not in conflict with the same laws, or the laws of the State. When foreign corpora tion may be sued. [Id., §§ 1 and 2, consolidated; the words, "except as otherwise specially prescribed by law", substituted for "upon giving security for the payment of the costs of the suit". The original apparently made the furnishing of security for costs, a condition precedent to the right to sue; but it has been construed in accordance with the amendment made by this section. Bank of Michigan v. Jessup, 19 Wend., 10; Persse, etc., Works v. Willett, 14 Abb. Pr., 119. The syntax only of the second sentence has been changed; the descriptive phraseology having been carefully preserved, for fear of giving rise to new questions, although it does not contain a very apt definition of the principal case to which it applies. New Hope, etc., Co. v. Poughkeepsie Silk Co., 25 Wend., 648. The last sentence constitutes the substance of the addition to the original section made by L. 1873, ch. 634 (9 Edm., 676).] 1780. An action against a foreign corporation may be maintained by a resident of the State, or by a domestic corporation, for any cause of action. An action against a foreign corporation may be maintained by another foreign corporation, or by a non-resident, in one of the following cases only: 1. Where the action is brought to recover damages for the breach of a contract, made within the State, or relating to property situated within the State, at the time of the making thereof. 2. Where it is brought to recover real property situated within the State, or a chattel, which is replevied within the State. 3. Where the cause of an action arose within the State, except where the object of the action is to affect the title to real property situated without the State. [Substituted for Co. Proc., § 427, and § 15 of the article of the R. S. now under consideration, as amended by L. 1849, ch. 107 (3 R. S., 5th ed., 755; 2 Edm.. 479). The last mentioned statute (Sess. L. 1849, p. 142) is entitled "An act to extend the remedies at law against foreign insurance companies;" and this singular title was made the basis of the decision in Burns v. Provincial Ins. Co., 35 Barb., 525. In truth, it extends to all foreign corporations, as did the section of the R. S., which it amended (2 R. S., 3d ed., 553). The courts have been perplexed, in consequence of the almost simultaneous pass |