FORMS. 249. Undertaking given in an action 251. Recital in undertaking given 252. Affidavit of sufficiency of under- 253. Another Form when justifying 256. Notice of filing of bond or 257. Notice of exception to sureties. 258. Notice of justification of sureties. 259. Order amending undertaking at instance of party giving it, or of sureties. 260. Affidavit to compel the giving of new undertaking. 261. Affidavit of surety upon foregoing application. 262. Order that new undertaking be filed. 263. Affidavit on motion to punish for contempt for false justification. FORM No. 249. Undertaking given in an action or special proceeding. [Title of court and cause.88] 89 WHEREAS [here recite briefly the occasion of giving the undertaking, for instance] the plaintiff in the above entitled action is about to make application for an order to arrest the defendant therein in one of the cases prescribed by law [stating ground]: Now, THEREFORE, we, C. D., of No. in 90 [plaintiff hereino1], [and E. F.-name sureties92 and state residence], do hereby pursuant to the statute in such case made and provided, jointly and severally undertake [state clearly and explicitly the character of the obligation, preferably in terms of statute, as:] that, if the defendant [recover judgment herein, or if it is finally decided that the plaintiff was not entitled to the order of arrest,] the plaintiff will pay [all costs that may be awarded to the de 88 See p. 451, paragraph 6 (above). 89 As to recitals, see p. 453, paragraphs 10, 11, and see p. 29, para. graph 13, of this volume. 90 The custom is to give the street number as well as the city. The residence is required under same stat utes. (See N. Y. Code Civ. Pro.. 1334) and it is always advisable to specify it. 91 See p. 455, paragraph 16 (above). as to when party need join. 92 The recital shows they are sureties. 93 As to necessity of residence, see p. 456, paragraph 17 (above). 94 As to necessity of words of joint and several obligation, see p. 27, paragraph 7. As the statute requires the undertaking to be joint and several, such an intent will be presumed. See Donovan v. Clark, 76 Hun, 339, 27 N. Y. Supp. 686. fendant, and all damages which he may sustain by reason of the arrest], not exceeding the sum of [Date.] dollars.9 95 [Signatures.] [Under N. Y. Code Civ. Pro., § 810, acknowledgment or proof as in Form No. 254. Affidavit as in Form No. 252.] FORM No. 250. Another, shorter Form, without recitals.96 [Title of court and cause.] in We, A. B., of No. bind ourselves jointly and severally to Y. Z., of in the sum of dollars, that the above-named plaintiff shall pay to the above-named defendants [state obligation in terms of statute]. [Date.] [Signatures.] FORM No. 251. Recital in undertaking given under order on condition of giving it.97 [Title of court and cause.] of An order having been duly granted herein on the day 19 , by Mr. Justice J. K. [or entered herein etc. and state character of order], upon condition that the plaintiff file and serve, on or before the day of 19 an dollars, to be undertaking to the defendants in the sum of approved by one of the justices of this court after justification of the sureties on notice of two days, conditioned that in case judg ment be rendered for the defendants herein, or the complaint be dismissed, or this action discontinued, the plaintiff will pay to the defendant, C. D., or his representatives or assigns, the amount of the judgment recovered by said defendant against M. N., in the Court of dollars, with interest thereon from the date and for the costs of this action, and also for the payment by the plaintiff herein to the sheriff, R. S., the amount of his fees and expenses under the execution issued to him on the said judgment, to be taxed; [Venue.] FORM No. 252. Affidavit of sufficiency of undertaking.98 * [or, C. D., one of the sureties named in and who executed the within [or, foregoing] undertaking, being duly sworn, says that he is a resident of said State of New York, and a householder freeholder] in said State, and is worth twice the sum specified in the above undertaking, over all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. [Signatures.] [Jurat.] [Under N. Y. Code Civ. Pro., § 812, this must be subjoined to the bond or undertaking, and thus separate title is unnecessary.] FORM No. 253. Another Form, when justifying in different amounts.1 [As in Form No. 252 to the*, continuing] that he is a householder [or, freeholder] in said State, and is worth the sum of dollars over and above all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. [Jurat.] [Signatures.] [Under N. Y. Code Civ. Pro., § 813; allowed where penalty is $5,000 or more, provided each surety justifies in at least $5,000, and the same person is not counted as making up the sum for more than one of them.] FORM No. 254. Certificate of Acknowledgment.2 County of [New York] ss. day of 19 before me I certify that on this personally appeared the above named [sureties] to me known and known to me to be the individuals described in and who executed the foregoing undertaking, and severally acknowledged to me that they executed the same. 98 See pp. 460, 461, paragraphs 26, 28 (above). 99 As to qualifications, see p. 454, paragraph 12 (above). [Signature and title of officer taking acknowledgment.] 1 See p. 461, paragraph 27. 2 For text and forms on the subject of acknowledgments, see pp. 2, et seq. FORM No. 255. Approval of bond or undertaking.3 The within bond [or, undertaking] is hereby approved as to form and sufficiency of sureties [if fractional justification is allowed, add, and the sum in which they are required to justify is hereby allowed to be made up as in the within justification set forth]. [Date.] [Signature of judge and initials of title.] [If by court, prefix to signature the words, By the court.] [File undertaking, so approved, with clerk of court.] FORM No. 256. Notice of filing of bond or undertaking.5 [Title of court and cause, unless indorsed on copy.] Please take notice, that a bond [or, undertaking], of which the foregoing [or, within] is a copy, was this day duly filed herein, with the clerk of the within named court [or, the clerk of the county of ].o [Date.] [Address] To Attorney for [Signature and address of], Attorney for [Serve a complete copy of the undertaking, including the acknowledgment, affidavit, and approval; and this notice therewith, or indorsed thereon.] FORM No. 257. Notice of exception to sureties.7 [Title of court and cause.] Please take notice, that the [plaintiff] excepts to the sufficiency of the sureties in the undertaking [characterize briefly, as: on appeal] filed herein on the day of 19 [or, under the condition of the order entered herein on the 19 stating briefly the character of the order.] [Address] To Attorney for Esq., 6 Undertakings on appeal must be filed in the office of the clerk, with whom the judgment or order appealed from is entered. N. Y. Code Civ. Pro., § 1307. 7 See pp. 468, 469, paragraphs 41, 42 (above). FORM No. 258. Notice of justification of sureties.8 [Title of court and cause.] Please take notice that the sureties upon the undertaking of the [defendant] herein [characterize briefly, as on appeal to the Appellate Division] will justify before one of the justices of this court at [Special Term, Part II thereof, at the County Court House in the Borough of Manhattan, county of New York], on day of o'clock in the the noon of that day. 19 at Order amending undertaking at instance of party giving it, or of sureties.9 [Title, etc., as in Form No. 94 or 96, pp. 255, 257, and see Form 101, where various recitals will be found.] ORDERED, that the application of said sureties to amend their undertaking in the manner hereinafter stated, be and the same is hereby granted; and the clerk of this court is hereby directed to insert the words " jointly and severally " between the words "hereby" and "undertake," as they occur in said undertaking,10 and make on the margin a reference to this order, and to the affidavits of said [naming parties], hereto annexed [or, and that the affidavits of said- naming sureties-be detached from the papers presented by the on this motion and be attached to said original undertaking, and filed therewith nunc pro tunc as of the 19], the said undertaking being now day of approved as thus amended. FORM No. 260. Affidavit to compel the giving of new undertaking. [Title of appellate court10a and cause.] |