ARTICLE V. DEPOSIT OR DELIVERY OF MONEY OR OTHER PERSONAL PROPERTY. 1. Power of the court.]- The inherent power of a court of equity15 to make an order that a defendant who admits that he possesses money or other property and ought to pay it over to plaintiff, must do so, without awaiting final judgment; and to enforce the order by proceedings for contempt, is preserved by the Code, 16 and extended (in respect at least to personal property) to actions of a common-law nature. The court has no power to order the defendant to pay into court an amount equal to the sum demanded, upon proof merely that the defendant is insolvent, where defendant does not admit the possession of the fund, or the plaintiff's ownership." 2. Distinction between cases for motion and cases for trial.] -If the admission is of a sum uncertain in amount, and which cannot be ascertained definitely by mere computation, or if the sum or other property is not admitted to be of right demandable by the plaintiff, or at least to be held under such circumstances that the court can say that as matter of law it is so demandable, the defendant should not be proceeded against by motion for de livery or payment, nor by motion for judgment; but is usually entitled to trial of the issues or assessment of damages. 3. Distinction between cases for order and for judgment.] If it does not appear that defendant is in possession in such 15 See Dusenberry r. Woodward, 1 Abb. Pr. 443. 16 N. Y. Code Pro.. $ 244: Code Civ. Pro.. $ 717. 17 Balestier r. Met. Nat. Bank, 43 Hun, 564. The section does not authorize the court to direct a partner to deliver partnership moneys to another partner, for the purpose of paying debts of the firm. Weston r. Watts, 29 N. Y. St Rep. 289; aff'd, 121 N. Y. 678. sense that he has power to make delivery or transfer, he should not be proceeded against by order enforcible in contempt, but by judgment which is usually enforcible only by execution. Judgment may, however, often be had by motion on the pleadings.' 18 Under settled principles applicable to motions, the plaintiff may move in the alternative19 for an order or for judgment, and the better opinion is that under a notice of motion for an order and for general relief, a money judgment might be granted, although it might be objectionable under a motion for judgment and for general relief, to grant, upon default, an order under which defendant could be imprisoned.20 FORM No. 788. Notice of motion that party deliver or deposit money or other property admitted to be due. [Title of court and cause.] Please take notice, that on the pleadings in this action [and on the examination of the defendant filed on the day of 19 ], the undersigned will move the court, at a Special Term [Part 1] to be held at the city hall [or, county court house], in of on the day of 19 at the o'clock in the the opening of the court on that day [or, at noon], or as soon thereafter as counsel can be heard, for an order that [state object, as in either of the following Forms], and for such other or further relief as may be just [and for the costs of this motion]. [Date.] [Signature and office address of] Attorney for [moving party]. Attorney for [adverse party]. FORM No. 789. Order that a party deliver or pay into court money or property admitted to be due (or for judgment on the admission). [Title of cause.] At a Special Term [etc., as in Form On the pleadings in this action, and the examination of the [defendant Y. Z.] filed herein on the day of 18 See chapter X on PRACTICE AS TO THE PLEADINGS. 19 Supra, p. 84. 19 20 Supra, D. 151. Compare Eureka Steam-Heating Co. v. Sloteman, 67 Wis. '118, 30 N. W. Rep. 244. whereby it appears that the [said defendant Y. Z.] admits that he has in his possession [or, under his control] the sum of dollars [or, property hereinafter mentioned], the subject of this action, and that it belongs [or, is due] to the plaintiff [or, is held by defendant as trustee for plaintiff; and on reading and filing proof of due notice of this motion]; now, after hearing A. T., of counsel for plaintiff, and T. Z., counsel for defendant [or, and no one appearing] in opposition: now, on motion of A. T., attorney for plaintiff: ORDERED, that the defendant Y. Z., within days after the service of this order, deposit in court [or, deliver to the plaintiff] [specifying the property], subject to the further direction of the court [and pay to plaintiff dollars costs of motion]." Enter: [signature of judge by initials of name and title.] [Serve personally on person directed to make deposit or delivery, as well as on adverse attorney.] [Affidavit to disobedience, and proceedings to punish for contempt. See CONTEMPT.] FORM No. 790. Order for payment of admitted claims, on security being given for counter claim.22 [Tille (court order) and recitals, according to the case.] ORDERED, that the defendant, G. L., do within which days from the service of this order, pay to the plaintiffs [as administrators] the sum of dollars, being the sum admitted to be in his hands, received for the plaintiffs, less the sum of he is allowed to retain until the decision in this suit shall determine the amount of the bad debts and the liability of the plaintiffs as administrators therefor. And the plaintiffs must give, simultaneously with the payment of the money, a joint and several bond or undertaking with two sureties, to be approved by one of the justices of this court, as to its form, amount, and sufficiency of the sureties, to pay one-fourth part of all such outstanding claims against the late firm of L. R. & M., as the defendants, or either of them, shall be called upon and obliged to pay, and also one-fourth part of the moneys paid by them or either of them, or for which they, or either of them, may be liable, for the expenses of prose 21 As to clause requiring security as a condition of making the order, see supra, p. 238, and Form No. 549, p. 930. 22 Sustained by Roberts r. Law, 4 Sandf. 642. cuting the demand against the corporation mentioned in the answer in this cause, and also whatever sum, if any, may be adjudged by the court to be justly due to L. for his time and services in prosecuting such demand. Enter: [signature of judge by initials of name and title.] FORM No. 791. Order that sheriff take and deposit or deliver, when party ordered fails to do so. [Title (court order) and recitals, according to the case. See Form 101, p. 259; and reciting that it appears that defendant has disobeyed the order of the court.] ORDERED, 1. That the sheriff of the county of take from the defendant Y. Z. and deliver to the plaintiff [or, deposit in court-specify the sum or property; and give directions in conformity with the direction of the order which has been disobeyed]. 2. That the defendant Y. Z. [forthwith] pay to plaintiff dollars costs of this motion. Enter: [signature of judge by initials of name and title.] FORM No. 792. Order for receiver unless defendant delivers or deposits. [Title (court order) and recitals, according to the case, as on a motion for a receiver. See pp. 1029 to 1088.] ORDERED, that defendant may within days after service of this order on him personally [or, his attorney], deliver to plaintiff [or, deposit in court] the sum of [or otherwise describe the property], in satisfaction of plaintiff's claim to that in default thereof [proceed with appointment of receiver, as in Forms 679, etc., to 721]. and 1. Outline of the remedy.]-The use of these forms is best understood by noticing that the scheme of replevin as a provisional remedy is t take the property into the custody of the law for a few days, while the security which plaintiff offers to insure its return in case judgment goes against him, can be examined by defendant. The defendant on having this opportunity takes one of several courses.23 He can, tacitly, or by requiring a justification of sureties, treat the security as standing for him in place 23 See par. 7, post. |