
    Simon Christiansen, Respondent, v. Louis B. Mendham, Impleaded, etc., Appellants.
    (City Court of New York, General Term,
    March, 1899.)
    Action against a surety in replevin — He cannot attack the replevin judgment, while it stands.
    In an action upon an undertaking given by a plaintiff to a defendant upon the former’s replevin of chattels, a defendant surety cannot, while it stands, attack the judgment in replevin and insist that the court had no power to award in that action the possession of the chattels, or damages for special property in them, to the defendant therein because he had not duly served upon the plaintiff’s attorney therein a notice, under section 1725 of the Code of Civil Procedure, that he demanded judgment for the return of the chattels or their value, either with or without damages for detention.
    Appeal from a judgment in favor of plaintiff.
    Action on an undertaking in replevin given by the plaintiff.
    Franklin Bien for appellants.
    Harris & Goldfarb (Abraham Goldfarb and Abraham I. Spiro, of counsel), for respondent.
   Per Curiam.

The case was tried by the court, without a jury, upon the following agreed state of facts.

First: That in this action, the defendant Harris Mendham was never served with the summons and complaint, either personally or otherwise.
Second: That in the action in which the undertaking in suit was given, being the action of McOobb against Christianson, was one in replevin, in which the plaintiff therein replevined certain property which always remained and still remains in him; that in the replevin action the defendant, who is the present plaintiff, failed to comply with section 1125 of the Code, in that he did not, within the time allowed to him for the service of a notice of trial, serve upon the plaintiff’s attorney a notice that he demanded judgment, for the return of the chattel or its cash value either with or with- ¡ out damages for the detention thereof, and that he failed to furnish! the court upon the trial of such action with a copy of such notice together with proof of the service thereof. The judgment-roll in that action was put in evidence and both sides rested.

The appellant contends that, in the former action of McCobb against Christianson, the court had no jurisdiction to award the possession of the chattels to the defendant, or damages for his ■special property therein, because the defendant therein had not ■served the notice required by section 1725 of the Code.

The court had acquired jurisdiction, in that action, of the parties and of the subject-matter.

The judgment, therefore, is valid until reversed or vacated, and the surety will not be heard to attack it in an action to enforce the provisions of the undertaking while it remains valid against his principal.

Judgment affirmed, with costs.

Present: Conlan and Schuchman, JJ.

Judgment affirmed, with costs.  