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ARTICLE VII. SEIZURE OF CHATTEL UNDER FORECLOSURE. 1. Power of the court.

(813) Undertaking.

(814) Warrant to seize chattel un. Forms.

der foreclosure. (812) Affidavit to obtain warrant to

seize chatuel under foreclos-
ure of lien.

1. Power of the court.] — The power of the court to issue a warrant for the seizure of a chattel on the ground that the action was brought to foreclose a lien thereon, is purely statutory.30 But a somewhat equivalent remedy may, upon proper facts, be had by receivership,31 or by order to deposit in court or deliver to plaintiff,32 or by attachment.33 But the lien must be existent.]34

The court has power, as in attachment, to discharge the warrant upon the giving of proper security.

35

TORM No. 812. Affidavit to obtain warrant to seize chattel under foreclosure of lien.36

[Title of court and action.] [Venue.]

A. B., being duly sworn, says:

I. That he is plaintiff in this action (or otherwise state his relation to the cause].

II. That this action is brought to foreclose a lien upon [designating chattel], as appears by the complaint herein; that the

30 Weisbach 1. Pollock (Wash., Jan. 1887), 13 Pac. Rep. 417; Carpenter v. Lott, 31 Hun, 349; N. Y. Code Civ. Pro., § 1737.

31 Page 998 of this volume.
32 Page 1142 of this volume.
32 Page 1178 of volume II.
34 Code Civ. Pro., § 1737.
35 Kee v. Hip Tong Society, 25 Misc. 320, 54 N. Y. Supp. 570.

36 Although under Code Civ. Pro., $ 1738, the proceedings to procure and 'enforce the warrant are assimilated with proceedings on attachment, it is

not necessary for the affidavit to state that the amount claimed is due above all counterclaims. Blake r. Crowley, 44 Hun, 344.

summons and complaint were personally served on the defendant 1. 2. on the day of , 19 .

[State facts establishing the lien and the plaintiff's right to a sale.]»?

III. That said lien existed at the commencement of this ac tion.

IV. That the plaintiff is not in possession of said chattel, but the same is (as deponent is informed and believes] in the possession of the defendant.38 [Here add any circumstances sup porting plaintiff's right to enforce immediate surrender.] [Jurat.]

[Signature.] FORM No. 813. Undertaking to obtain warrant to seize chattel under foreclosure. [Tille of court and action.]

Whereas, the abore-named plaintiff has applied or is about to apply to [a judge of] this court for a warrant to seize certain chattels, for the foreclosure of a lien on which chattels this action is brought:

Yow, TIEREFORE [follow Form 834 from the asterisk; but substituting in place of the word "attachment” in the last line, the words “ warrant or seizure.”]

FORM No. 814. Warrant to seize chattel in action to foreclose lien.39 THE PEOPLE OF THE STATE OF NEW YORK, to the sheriff of the

county of [or, except in the N. Y. City Court, 46 may say, to the sheriff of any county).

WHEREAS, in an action brought in this court by A. B. against Y. Z., application has been made to [the undersigned, a judge of] this court by A. B., plaintiff, for a warrant to seize and safely keep the chattels hereinafter described, to abide the final judg. ment in said action; and it satisfactorily appearing by the complaint and affidavit that a cause of action such as is specified in § 1737 of the Code of Civil Procedure exists in favor of the plaintiff and against the defendant, to foreclose a lien for the

37 See Powell r. Weaver, 56 Ga. 288.

38 See Carpenter v. Lott, 31 Hun, 349.

39 To be issued only by the court, or

a judge of une court in which the action is pending.

40 See N. Y. Code Civ. Pro., $$ 339 and 1738.

ARE

HEREBY

sum of

dollars upon said chattels; and that the plaintiff is not in possession of said chattels; and the plaintiff having given the undertaking required by law: Now, YOU

COMMANDED to seize the following chattels, to wit [specify same], being the chattels described in the complaint in said action, or so much thereof as may be found within your county, and to safely keep the same to abide the final judgment in the action, and that you proceed herein in the manner, and make your return within the time, required of

you by law.

>

Witness: Hon. [here name any justice of the Supreme Court, if the cause in which the warrant is issued is in that court, adding], justice of our said court (or if the cause is in a County Court or the N. Y. City Court, name a judge thereof, adding, judge of our said court], at the County Court House [or, the City Hall], in this [date of issue] day of 19 [If the warrant is issued by the court, here will follow:]

[Signature of clerk.] [Seal, if any.]

[If by a judge, signature of judge and initials of title, instead of signature of clerk and seal.] [In either case add signature and office address of],

Attorney for plaintiff. [File affidavit within ten days and serve summons within thirty days. ] 41

41 N. Y. Code Civ. Pro., $8 639, 1738.

[End of VOLUME I.]

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