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under said affidavit and requisition may be restored by him to the said defendant (and for such other or further relief as may be just, and for the costs of this motion.]
II. DEFENDANT'S PROCEEDINGS FOR A RETURN.
FORM No. 804. · Notice requiring return of chattels replevied. [Title of court and action.]
Please take notice that the above-named defendant, Y. Z., re quires a return to him of the chattels replevied herein (or specify what if only part are to be returned.] [Date.]
[Signature and office address of],
Defendant's attorney (or if he has not appeared, of defendant,
or his agent.] To the sheriff of
the county of [Serre with affidavit and undertaking — as in next two Forms
— within three days after the plaintiff's replevy, and service of requisition, etc.15] [Within three days after serving them, serve notice of justification
of sureties, 18 as in Form 800, substituting defendant for plaintiff, and vice versa.]
FORM No. 805.
Y. Z., being duly sworn, says:
I. That he is the defendant (or state connection with defendant, etc.; see Form 794] in this action.
II. That on the day of , 19 , the chattels mentioned in the annexed notice were replevied herein, and a copy of the affidavit, requisition and undertaking served upon deponent [or, said defendant).
III. That the defendant does not except to the plaintiff's sure ties herein.
15 N. Y. Code Civ. Pro., 98 1703,
16 Id., $ 1704, last clause.
IV. That deponent [or, the defendant] is the owner, and lawfully entitled to the possession of the aforesaid chattels [or, is lawfully entitled to the possession of the aforesaid chattels, by virtue of a special property therein, by reason of the following facts :- set forth facts creating special property;17 see Form 794.] [Jurat.]
[Signature.] FORM No. 806. Undertaking for defendant to reclaim chattels replevied.18 [Title of court and action.]
WHEREAS, the plaintiff in this action has claimed the delivery to him of certain chattels, specified in the affidavit made by [or, on behalf of] the plaintiff for that purpose, of the alleged value of
dollars, [and has caused - part of — the same to be replevied" by the sheriff — coroner — of the county of pursuant to Chapter 14 of the Code of Civil Procedure], but the same have not yet been delivered to the plaintiff; and, whereas, the defendant requires (the part of] said chattels so replevied to be returned to him [if only a part of those taken, say, to wit — describing them]:
Now, THEREFORE, we, the undersigned, C. D., of [residence address], and E. F., of
in consideration of the premises and pursuant to the statute in such case made and provided, do hereby jointly and severally undertake and become bound to said plaintiff in the sum of (not less than twice the value of the chattel of which return is demanded, as such value is stated in plaintiff's affidavit]20 dollars, for the delivery to the plaintiff of the said
17 Required by N. Y. Code Civ. Pro., $ 1704. Where the defendant's asfidavit shows that he received the property from another person, for safe keeping, it is not an objection that his affidavit alleges, on information and belief only, that such third person is the owner. Lange r'. Lewi, 58 N. Y. Super. Ct. 265, 11 N. Y. Supp. 202.
was different other property. Martin v. Gilbert, 119 N. Y. 298. The Supreme Court has power to allow an undertaking inadvertently containing such a recital to be withdrawn, and a new undertaking substituted. Dale v. Gilbert, 128 1. Y. 625.
18 Under Code section 1704 the defendant may retake chattels replevied though not described in the plaintiff's affidavit. Martin v. Gilbert. 119 N. Y. 298.
19 Such a recital acts as a conclusive admission on defendant's part that he had possession of tne property described in plaintifi's affidavit, and he is estopped from showing that it
Of course, such a recital cannot be required, and its absence is notice to plaintiff that defendant proposes to litigate not only the title but the identity of the property replevied. Rouse v. Haas, 26 App. Div. 171, 49 N. Y. Supp. 867.
20 It seems that if plaintiff's affidavit states only the aggregate value, and the sheriff seizes only a part of the chattels, the defendant may tender an undertaking for a proportionate part of the aggregate value. Webber
(part of] said chattels if delivery thereof is adjudged, or if the action abates in consequence of the defendant's death; and for the payment to plaintiff of any sum which the judgment awards against the defendant. [Date.]
[Signatures.] (.1chnowledgment or proof, as in Form 1, p. 3; Affidarits of
sufficiency, unless waired by sheriff,22 as in Forms 252, 253,
p. 479.] [Notice of justification, as in Form 800, substituting defendant
for plaintiff, and vice versa.]
III. INTERVENTION OF THIRD CLAIMANT 23
FORM No. 807.
Affidavit of third claimant in replevin.24 [Title of court and action.] [Venit.]
M. X., being duly sworn, says:
I. That he [or, one Q. R., of 25] claims, as against the defendant herein, the possession of the chattels below described by a right existing at the time that said chattels were in this action replevied of the defendant by the sheriff of the county of .
II. That deponent [or, said Q. R.) is and was at the time of such taking (the sole owner and] lawfully entitled to the possession of such chattels, which are described as follows (specify chattels claimed if only part are claimed]. [That deponent's - or, said Q. R.'s — right to such possession arises from — state facts upon uhich right to possession de pends; see Form 794.]
[If affidarit is made by agent or attorney, allege circumstances as in Form 794,26 substituting for plaintiff the name of the third person.] [Jurat.]
r. Manne. 22 Abb. N. C. 151, aff'd, 105 N. Y. 627. Compare Code Civ. Pro., $ 1698.
21 Defendant's undertaking may properly be limited to cover only the chattels actually taken by the sheriff. Webber v. Manne, 22 Abb. N. C. 151; less fully, 42 Hun, 557, aff'd, 105 N. Y. 627.
22 See Grant v. Booth, 21 How. Pr. 354.
23 See paragraph 9, p. 1151, supra; Code Civ. Pro., $ 1709.
24 No other demand than service of the affidavit and notice of claim is necessary. Manning r. Keenan, 73 N. Y. 45. It may be served at the sheriff's office. See supra, Form 2:23, p. 409, SERVICE.
25 If the affidavit is not made by the claimant, allege particulars, as in Form No. 794.
26 N. Y. Code Civ. Pro., $ 1712.
FORM No. 808.
Notice to be indorsed on above. To the sheriff of the county of
Take notice, that I claim the chattels referred to in the within affidavit, and demand that you deliver them to me. [Date.]
[Signature and office address. ]
FORM No. 809. Notice by sheriff to plaintiff in replevin, of third claimant.27 [Title of court and action.]
Take notice that one M. N., claims the property replevied by me in this action, and has served upon me an affidavit of such claim in accordance with the provisions of $ 1709 of the Code of Civil Procedure, a copy of which affidavit is hereunto annexed; and that I hereby require indemnity against such claim. [Date.]
Sheriff. [Address] TO
FORM No. 810. Undertaking of indemnity by plaintiff against third claimant in replevin.28 [Title of court and action.]
WHEREAS, M. N. claims [to be the owner, and] to have the right, as against defendant, to the possession of the following chattels, viz., [specify them), which have been taken by O. P., as sheriff of the county of , upon the affidavit and requisition of the plaintiff herein:
Now, THEREFORE, we, C. D., of and E. F., of do hereby jointly and severally undertake to indemnify saiš sheriff against any liability for damages, costs or expenses to be incurred in an action brought against him by said M. N., or a person deriving title from or through said M. N., by reason of the taking or detention of said chattels, or their delivery to the plaintiff, not exceeding the sum of dollars (at least $500, and not less than actual value of chattel and $250 in addition thereto]. Date.]
[Signatures.] [Acknowledgment or proof, as in Form 1, p. 3. Affidavits
of sufficiency as required in N. Y. Civ. Pro., S 1711.7 [Justification as in case of bail; if required by sheriff.] 27 N. Y. Code Civ. Pro., & 1709.
28 See Forms Nos. 797 and 806, and
IV. PROCEEDINGS AGAINST SHERIFF.
FORM No. 811. Notice to sheriff to make return in replevin 29 [Tille of court and action.]
To the sheriff of the county of
Take notice, that you are hereby required, within ten days after service upon you of this notice, to file with the clerk of this court the plaintiff's affidavit herein, and the accompanying requisition, with a return, as required by law, stating in what manner you have executed the latter, or to show cause at a Special Term of this court, to be held at the [Court House] in the city] of , on the day of
, 19 , at o'clock in the noon, or as soon thereafter as counsel can be heard, why you should not be punished for a contempt of this court, and an attachment should not issue against you therefor.
[Signature and office address of], [Date.]
Attorney for .
29 See N. Y. Code Civ. Pro., $ 1716; N. Y. Gen. Rules No. 6, and Cos
TEMPT, in Volume II.