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ARTICLE VII.

LEAVE TO SUE.

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VI. LEAVE TO SUE ON PERSONAL OBLIGATION, INDEPENDENTLY OF FORECLOSURE.

FORMS. (312)

Affidavit to move after foreclosure for leave to sue for deficiency a party to the foreclosure.

(313) Notice of motion for leave to sue for deficiency after foreclosure.

(314) Petition for leave to sue for deficiency one who was not a party to the foreclosure. (315) Order to show cause why leave should not be granted to sue for deficiency. (316) Order giving leave to sue for deficiency.

(317) Order to show cause why leave should not be granted after suit brought without it.

(318) Order granting leave after suit brought without it.

VII. LEAVE TO SUE ON A JUDGMENT. FORMS.

(319) Affidavit to move for leave to sue on a judgment in the court in which it was recovered.

(320) Notice of motion for leave to sue on judgment in same court.

(321) Petition for leave to sue on judgment recovered in another court. (322) Order to show cause on peti tion for leave to sue on judgment in another court. (323) Order granting leave to sue on a judgment.

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Affidavit to move for leave to sue with sheriff in aid of attachment.77

[Title of court and attachment action.]

[Venue.]

A. B., the plaintiff herein, being duly sworn, says:

I. That this action was brought by deponent to recover of the

77 Under N. Y. Code Civ. Pro §§ 677, 678. The sheriff may bring such an action without leave. Davidson v. Chatham National Bank, 32 Hun, 138.

If the sheriff has not brought such an action, the court must give the attaching creditor leave. Code Civ. Pro., § 678.

If the object is to impeach a fraudulent transfer of the assets, the better course is to proceed with the levy, thus provoking an action from those who claim under the fraudulent transfer, or to bring a common-law

action to get possession or collect, in either of which the validity of a transfer of leviable property may be impeached, and after judgment in the attachment suit, the validity of a transfer of a chose in action may be impeached (Carr v. Van Hoesen, 26 Hun, 316; Throop Grain Co. r. Smith, 34 id. 91); or to get judgment and take an order in supplementary proceedings.

A creditor's action will not lie in aid of an attachment before judgment (Bower. Arnold, 31 id. 256), except under Code Civ. Pro., § 655, subd. 2,

defendant above named [indicate briefly its nature], and is now pending in this court [indicate condition of cause]."

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19 , plaintiff

II. That on or about the day of duly applied in this action for a warrant of attachment against the property of the defendant, and such warrant, a true copy whereof is hereto annexed, was duly issued, and delivered to M. N., sheriff of the county of

III. That, as deponent is informed and believes, one O. P. then had in his possession [specifying property], belonging to said defendant [or, was indebted to said defendant in the sum of dollars for stating briefly the causes of action to be sued on: see Forms in Chapter VII, under ATTACHMENT.

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IV. That, as deponent is informed and believes, on or about the day of 19 said sheriff, by virtue of and under said warrant, duly levied upon said cause of action and debt [by taking the said note into his actual custody,— or, if a chose in action not capable of manual delivery, duly levied upon said property and right of action by leaving a certified copy of the warrant, and a notice showing that said

was attached, with said O. P.79], whereby, for the benefit of plaintiff, said sheriff became entitled to receive said from said O. P.,

and said O. P. became answerable to said sheriff therefor.

V. That, as deponent is informed by [said sheriff], and believes, no other property was levied on under said attachment [or otherwise show reasonable necessity of collection from the third person, in order to secure plaintiff's demand.]

VI. That, as deponent is informed by said sheriff, and believes, said O. P., notwithstanding said levy and due demand, refuses to pay over to the said sheriff, or account for, said said sheriff has been unable to

where the sheriff is permitted to sue (and under §§ 677 and 679. the creaitor permitted to join), where the summons was served by publication or without the state, and the defendant has made default. Whitney v. Davis, 148 N. Y. 256; Harding v. Elliott, 91 Hun, 502, 36 N. Y. Supp. 648, 25 Civ. Pro. 294.

78 If the application is for leave to sue before judgment obtained (under Code Civ. Pro., § 655, subd. 2) the

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and collect the same [or, to reduce

affidavit must show the substituted service of the summons and the fact that the defendant is in default. Whitney v. Davis, 148 N. Y. 256.

79 Or otherwise allege such a levy as is described in and required by N. Y. Code Civ. Pro., § 649. Substantial compliance with these requirements is essential to the validity of the levy. Hayden v. Bank, 130 N. Y. 146; Courtney v. Eighth Ward Bank, 154 id. 688.

the same to possession]; and that an action is necessary to recover the same.

VII. That deponent desires leave to bring and maintain, in the name of himself and the sheriff jointly, by his own attorney and at his own expense, such action or actions against O. P. as are by law allowed in such case.

VIII. That, as deponent is informed by [said sheriff], and believes, no other attachment has been levied on said cause of action or debt [except an attachment levied on the

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day of

at suit of one C. D., whose attorney is R. S., of No.
street, in
—or annex and refer to a cer-

tificate of the sheriff].

[Jurat.]

[Signature.]

[Under N. Y. Code Civ. Pro., § 677, annex Notice of motion (Id., § 678), and Proof of service, on sheriff,80 and on attorney for any other attaching creditor.]81

FORM No. 302.

Order giving plaintiff in attachment leave to sue in name of sheriff and

himself.

At a special term [etc., or the order may be made by the judge who granted the warrant.].

[Title of the attachment action.]

On reading and filing the annexed affidavit of A. B., plaintiff herein, verified the day of 19 and proof of

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service of due notice of this motion upon M. N., the sheriff of the County of therein named [and to C. D., the plaintiff in the junior attachment therein mentioned], and on motion of Q. R., attorney [no one appearing in opposition]:

ORDERED, that the plaintiff above named have leave to bring and maintain in the name of himself and the said sheriff jointly, by his own attorney, and at his own expense, and subject to the direction of this court [here specify the proposed action, or, generally] any action or actions which he may be advised to be neces

80 Failure to serve sheriff with notice of this application is not an objection which the defendant in the subsequent action can raise. Dunn v. Arkenburgh, 48 App. Div. 518, 62 N. Y. Supp. 861; 31 Civ. Pro. 67;

aff'd on opinion below, 165 N. Y. 669.

81 Requirement of service on any other attaching creditor is discretionary, but may properly be made by the moving party before presenting his application.

sary for the purpose of collecting and recovering all debts, effects, and things in action attached by said sheriff, under the attachment in said affidavit mentioned, or of reducing to actual possession any articles of personal property capable of manual delivery, and which have been so attached, but of which said sheriff has been unable to obtain possession.

[PROVIDED, however, and this order is upon condition that -specifying conditions and regulations imposed, if any. See Forms No. 114 and 115 for examples of conditions generally, and Form No. 336 (below), for a requirement of security.]

[Authentication, as in Form No. 108, p. 265.]

FORM No. 303.

Undertaking given sheriff before suing on things in action taken by him on attachment.

[Title of court and attachment action.]

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has herein

Whereas, M. N., sheriff of the county of attached a claim of the defendant against O. P. [or otherwise designate the claim], concerning which it is necessary to commence one or more actions; and whereas, said sheriff has consented that such action may be prosecuted by the above-named plaintiff, or under his direction and in said sheriff's name, on this undertaking being given:

and C. D.,

Now, therefore, we, A. B., residing at residing at hereby jointly and severally undertake that the plaintiff herein will indemnify said M. N., sheriff as aforesaid, from all damages, costs and expenses on account of said actions, or either of them, not exceeding the sum of any one action, or the sum of

[Date.]

dollars in dollars in the aggregate.

[Signatures.]

[Acknowledgment as in Form No. 1, p. 3; affidavits of suffi

ciency as in Form No. 252.]

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