where the judgment awards the return of the chattel or a specified sum of money, the plaintiff cannot have interest upon such sum where he delays to enforce his judgment. MacDonald v. MacDonald (1911), 71 Misc. 516, 130 N. Y. Supp. 784. Where a defendant in replevin claims only a special interest in the chattel, and the jury failed to fix the value of the property as directed by the court a general verdict awarding him a certain sum, together with the possession of the property, should be set aside and a new trial granted. Cary Mfg. Co. v. Malone (1909), 131 App. Div. 287, 115 N. Y. Supp. 632. ARTICLE XVI. CONTENTS OF JUDGMENT. (Fiero, Spec. Act., 3rd Ed., pp. 1983-1987.) In an action for the possession of chattels, the judgment should be for the recovery of the property, or for the value thereof in case delivery cannot be had, together with damages for its detention. Ehrenreich v. Knudsen (1916), 157 N. Y. Supp. 1082. A money judgment is unauthorized where there is not a scintilla of evidence as to the value of the chattel. Goyena v. Berdoulay (1915), 154 N. Y. Supp. 103. In an action of replevin a judgment awarding the plaintiff possession may be entered although the value of the property be not found or damages assessed. Johnstone v. Weibel (1909), 131 App. Div. 166, 115 N. Y. Supp. 255. In an action of replevin it is error to award judgment for the plaintiff in conversion for the value of the property. Amendola v. Ruggiero (1914), 149 N. Y. Supp. 907. A failure to insert in a judgment of replevin an alternative provision allowing a return of the goods is a mere irregularity which may be cured on appeal without reversing the judgment. Scherl v. Flam (1910), 136 App. Div. 753, 121 N. Y. Supp. 522. A judgment for defendants in replevin, which does not provide for the return of the property, or fix any value, or give any damage for its seizure, the plaintiff being in possession, is meaningless. Horn v. Margolis (1915), 153 N. Y. Supp. 674. In an action of replevin by a husband for household goods stored by the wife, the judgment may award some to one party and some to the other. Brachfeld v. Harlem Terminal Storage & Warehouse Co. (1912), 133 N. Y. Supp. 421. ARTICLE XVIII. ACTION ON UNDERTAKING, WHEN MAINTAINABLE. (Fiero, Spec. Act., 3rd Ed., pp. 1989-1993.) Where in an action of replevin the defendant does not reclaim the chattels and the complaint is dismissed on the plaintiff's default, the defendant may maintain an action on the undertaking without first obtaining the return of an execution unsatisfied. Section 1733 of the Code of Civil Procedure, requiring the return of an execution upon a final judgment in favor of defendant in such a case before bringing suit upon the undertaking, does not intend a judgment of dismissal on plaintiff's default, but a judgment for the return of the chattels replevied or for damages. Rushbrook v. Jerge (1911), 74 Misc. 43, 133 N. Y. Supp. 640. Where an action in replevin is dismissed without prejudice for lack of proof on the part of plaintiff, there is no adjudication upon the merits as to the ownership of the chattels in question, and when because of the failure of plaintiff to successfully prosecute the action the surety is sued upon its bond it is entitled to show that the plaintiff in replevin was in fact entitled to the possession of the property taken by him and that, therefore, the defendant in replevin suffered no substantial damage by such taking. Wilkins v. American Surety Co. (1918), 104 Misc. 588, 172 N. Y. Supp. 203. Defendant may recover on plaintiff's undertaking, where the judgment directed the chattels or the value thereof to be returned to defendant, and the plaintiffs did not return, nor in good faith attempt to return. Sauerman v. Fidelity & Deposit Co. (1913), 145 N. Y. Supp. 114. It is a defense to an action brought to recover upon a bond given by defendants to procure the return of property which had been taken by the plaintiff in an action of replevin to allege that neither the judgment nor the verdict in said action awarded the plaintiff the possession of the chattel, and that no execution issued thereupon required the sheriff to take possession. As the undertaking was given pursuant to the statute the liability of the de fendant is conditioned upon the rendering of a judgment in the alternative, as required by section 1730 of the Code of Civil Procedure, and the issue and return of the execution which would require the taking possession of the chattel replevied if it be possible. Levine v. Dohl (1917), 179 App. Div. 777, 167 N. Y. Supp. 329. ARTICLE XIX. COSTS. (Fiero, Spec. Act., 3rd Ed., pp. 1994-1996.) In an action to recover a chattel, upon granting a motion to substitute as a party defendant, in place of the sheriff, the obligor in an undertaking under section 1711 of the Code of Civil Procedure, the court is without power to award costs to the sheriff. Coddington v. Harburger (1912), 77 Misc. 211, 137 N. Y. Supp. 536. REVERSIONERS AND JOINT TENANTS, ACTION BY. SALE OF REAL ESTATE. See REAL PROPERTY, PROVISIONS RELATING TO. SEPARATION, ACTION FOR. See MATRIMONIAL ACTIONS. SURVIVAL OF ACTIONS. TAXPAYER'S ACTION. See OFFICERS, ACTION BY OR AGAINST. TOWN OFFICERS, ACTION BY OR AGAINST. TRESPASSERS, ACTIONS AGAINST. See REAL PROPERTY, PROVISIONS RELATING TO. UNINCORPORATED ASSOCIATION, ACTION BY OR AGAINST. (Fiero, Spec. Act., 3rd Ed., pp. 1997-2013.) Art. I. When action can be maintained. III. Effect of judgment. IV. Subsequent action against members, and statute of limitations. ARTICLE I. WHEN ACTION CAN BE MAINTAINED. (Fiero, Spec. Act., 3rd Ed., pp. 1997-2010.) The provisions of section 1919 of the Code of Civil Procedure in an action against an unincorporated association, are limited to a cause of action by which the plaintiff might maintain an action against all the associates by reason of their liability either jointly or severally. Schouten v. Alpine (1915), 215 N. Y. 225. It is essential to a recovery under this section that all the members of the association be liable to the plaintiff, either jointly or severally, and where the complaint fails to allege that the wrong complained of was committed by all the members of the association, it will be dismissed. Mazurajtis v. Maknawyce (1916), 93 Misc. 337, 157 N. Y. Supp. 151. An action against the president or treasurer is not limited to one where money damages is claimed. Heitkamper v. Hoffman (1917), 99 Misc. 543, 164 N. Y. Supp. 533. While an action to recover damages for an assault and battery may be maintained against the president or treasurer of an unincorporated association consisting of seven or more persons, such an action cannot be maintained against both of such officers. Mazurajtis v. Maknawyce (1916), 93 Misc. 337, 157 N. Y. Supp. 151. The president of a manufacturers' association, not incorporated, may maintain an action under section 1919 of the Code of Civil Procedure to restrain any action upon the part of the members of a labor union which affects the civil rights and interests of all the members of the plaintiff association. Garside v. Hollywood (1914), 88 Misc. 311, 150 N. Y. Supp. 647. Every member of an unincorporated association may be sued, and if the members are numerous, some of them may be made parties defendant, as representatives of a class. Bossert v. Dhuy (1914), 166 App. Div. 251, 151 N. Y. Supp. 877. Under section 1919 of the Code of Civil Procedure, which au thorizes an action against the president and treasurer of an unincorporated association upon any cause of action which the plaintiff may maintain against all the associates, no action can be brought unless the debt upon which the plaintiff seeks to recover is one for which all the associates are liable. Strauss v. Thoman (1908), 60 Misc. 72, 111 N. Y. Supp. 745, affd., 129 App. Div. 905, 113 N. Y. Supp. 1148. In an action against unincorporated labor unions for threatened injury to the person and property of plaintiff, after the discharge by it of certain members of such labor unions following a strike, the defendants are properly made parties to the action, under section 1919 of the Code of Civil Procedure, by service upon their officers. Russell & Sons v. Stampers & Gold Leaf Local Union No. 22 (1907), 57 Misc. 96, 107 N. Y. Supp. 303. Where a fraternal benefit association, unincorporated, has its principal office in England, and has a United States branch with a local president, the plaintiff, in order to obtain a judgment against the society itself, should bring the action against the foreign president or treasurer, though, if the plaintiff claims that the members of the United States branch are liable for the full amount, the action may be brought against the local president. Stewart v. Thorburn (1916), 171 App. Div. 258, 157 N. Y. Supp. 242. The local branch of a membership corporation organized under the laws of this State may not maintain an action to recover moneys due such local branch, as though it were an incorporated association. The right of action is in the corporation itself and it is the proper party to bring the action, unless the local branch possesses some expressed derivative right to maintain such an action. Conboy v. Mathews (1916), 174 App. Div. 523, 160 N. Y. Supp. 538. The by-laws of a teachers' mutual life assurance association, a voluntary unincorporated association consisting of more than seven members, provided for the payment upon the death of a member of $500 to the assignee of said member, and for an assessment of fifty cents to be collected from each surviving member, and the only penalty prescribed for the failure to pay an assess |