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FORMS. 249. Undertaking given in an action 257. Notice of exception to sureties. or special proceeding.

258. Notice of justification of sure250. Another, shorter Form, without

ties. recitals.

259. Order amending undertaking at 251. Recital in undertaking given

instance of party giving it, or under order on condition of

of sureties. giving it.

260. Affidavit to compel the giving of 252. Affidavit of sufficiency of under

new undertaking. taking.

261. Affidavit of surety upon fore253. Another Form when justifying

going application. in different amounts.

262. Order that new undertaking be 254. Certificate of acknowledgment.

filed. 255. Approval of bond under 263. Affidavit on motion to punish taking.

for contempt for false justifi256. Notice of filing of bond

cation. undertaking.

or

or

FORM No. 249.

Undertaking given in an action or special proceeding. [Title of court and cause.88]

WHEREAS [here recite briefly the occasion of giving the undertaking,89 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

30 (plaintiff herein®], [and E. F.— name suretieso? and state residence93], do hereby pursuant to the statute in such case made and provided, jointly and severally 4 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 paragraph 7. As the statute requires the undertaking to be joint and several, such an intent will be presumed. See Donovan 1. Clark, 76 Hun, 339, 27 N. Y. Supp. 686.

P. 27,

fendant, and all damages which he may sustain by reason of the arrest), not exceeding the sum of

dollars.95 [Date.]

[Signatures.] [Under N. Y. Code Civ. Pro., § 810, acknowledgment or proof as in Form No. 254. Affidavit as in Form No. 252.]

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FORM No. 250.

Another, shorter Form, without recitals.98 [Title of court and cause.] We, A. B., of No.

in

and M. N., of No. in

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.87 [Title of court and cause.]

An order having been duly granted herein on the day of

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 undertaking to the defendants in the sum of dollars, to be approved by one of the justices of this court after justification of the sureties on notice of two days, conditioned that in case judgment 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

an

day of

19 for the sum of dollars, with interest thereon from the date of the entry thereof, 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;

Now, THEREFORE [etc.].

on the

95 As to the construction of the ob. ligation, see pp. 458, 459, paragraph 22.

96 The use of this form is not recommended. Recitals may become of utmost importance in case of error

or ambiguity. See paragraph 10, p. 453.

97 As to orders prescrihin, conditions, see ORDERS, pp. 230–232, paragraphs 39-42.

FORM No. 252.

Affidavit of sufficiency of undertaking.98 [Venue.]

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 householder89 [or, 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. [Jurat.]

[Signatures. ] [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.
I certify that on this

19 , before me 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.

[Signature and title of officer taking acknowledgment.]

day of

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98 See pp. 460, 461, paragraphs 26, 28 (above).

99 As to qualifications, see p. 454, paragraph 12 (above).

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* lif 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.]

[1f 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

]. [Date.]

[Signature and address of], [Address] To

Attorney for Attorney for [Serre a complete copy of the undertaking, including the acknowledgment, affidarit, and approval; and this notice therewith, or indorsed thereon.]

county of

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FORM No. 257.

Notice of exception to sureties, [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 day of

19 , stating briefly the character of the order.] [Date.]

[Signature and address of]

Attorney for [Address] To

Attorney for

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Esq.,

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3 To be indorsed thereon. N. Y. Code Civ. Pro., $ 812. See pp. 462464, paragraphs 29-33 (above).

4 For some purposes this clause is expressly required.

5 See pp. 465-467, paragraphs 3539 (above).

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).

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FORM No. 258.

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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 the day of

19
at

o'clock in the
noon of that day.
[Date.]

[Signature and address of], [Address] TO

Esq.,

Attorney for
Attorney for

FORM No. 259. 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 day of

19 ], the said undertaking being now approved as thus amended.

FORM No. 260.

Affidavit to compel the giving of new undertaking.
[Title of appellate court10a and cause.]
[Venue.]

M. V., being duly sworn, says:
I. That he is the [managing clerk of ], attorney for

in this action.

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8 See p. 469, paragraph 43 (above).

9 See paragraphs 50, et seq., p. 472, as to power of court and extent of amendment permitted.

the obligors jointly and severally, there seems no need of such amendment. See Denike v. Denike, 61 App. Div. 492, 70 N. Y. Supp. 629.

10 If the obligee does not object to an undertaking which does not bind

10a Parks v. Murray, 109 N. Y. 646.

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