II. LEAVE TO SUE ON A BOND OR UNDERTAKING CONDITIONED TO PAY WHEN REQUIRED BY THE COURT.82

FORM No. 304.

Affidavit of applicant for such leave.

[Title of the cause in which the

security was given.]

[Venue.]

A. B. above-named, being duly sworn, says:

[State occasion of giving the security, for instance thus]

I. That on or about the

day of

19 Y. Z. abovenamed, pending a motion for a stay of proceedings in the above entitled action, executed a bond to deponent, and filed the same on the day of 19 with the clerk of this court, pursuant to an order of this court, with one W. X. as surety, in the penal sum of dollars, conditioned for the payment dollars mentioned in the answer

to deponent of the sum

of said Y. Z., whenever he should be so required by order or judg ment of the court herein; a certified copy of which bond is hereto annexed and marked Schedule A.

II. [Here show the granting of an order, or judgment, of a nature requiring payment by Y. Z.- or annex a certified copyand add] That said Y. Z. and his surety have not paid such money, but said Y. Z. has refused to do so, although duly requested.

[Jurat.]

[Signature.]

[Serve notice of motion, or secure and serve an order to show cause, on third persons, if any, interested in the proceeds of the bond.]

82 Where a bond is conditioned that the party will pay, etc., when the court should order it, an order to pay is of course necessary. See Carpenter t. Acby, Hoffm. 311. The order should be made on notice to the party, but may be made without notice to the sureties. Dickerson v. Cook, 3 Duer, 324. In Harris v. Hardy, 3 Hill, 393, it was said that an order will be granted directing the sureties

to pay the money into court, or, in default thereof, that a suit be brought upon the bond. Compare Brayton v. Smith, 6 Paige, 491. On motion to compel sureties in bond given on behalf of defendants in ne exeat, to pay the amount into court, held, that an order to that effect might be made, providing that if it were not paid plaintiff have leave to sue. Collins v. Collins, 2 Monthly L. Bul. 41.

FORM No. 305.

Order that bond or undertaking be delivered up to be sued.83

[Title of cause.]

day of

At a special terms [etc., as in
Form No. 94, p. 255.]

On reading and filing the annexed affidavit of A. B., verified the 19, and proof of due notice to Y. Z.,85 of this application, and on motion of Q. R., attorney for said A. B.:

ORDERED, [that the plaintiff or his sureties pay, in satisfaction of the bondor, undertaking in said affidavit mentioned, the sum of dollars into court within days after service of a copy of this order, and on proof of their default], that the bond [or, undertaking] of Y Z., C. D., and E. F., filed in this action with the clerk of this court on the

day of

19 be delivered by the clerk to A. B., the [plaintiff]

herein, and that he have leave to sue thereon.

Enter [Signature and title of judge by initials].

III. LEAVE TO SUE ON OFFICIAL BOND.87

FORM No. 306.

Petition for leave to sue on sheriff's bond.88

Supreme Court;

To the Supreme Court of the State of New York.

The petition of A. B. of

County [Title as in next Form.]

I. That Y. Z [is and] at the times hereinafter mentioned, was

sheriff of the county of

83 By L. 1890, chap. 367, all official bonds, as well as bonds of personal representatives and guardians, must be recorded as well as filed, and the record, or a certified copy thereof, is evidence equally with the originai. Such statute will dispense with the necessity of this order if suit is to be brought in New York.

An order to prosecute a bond does not give a vested right to recover and collect the damages, which the court cannot take away. The court have power to revoke or vacate such an order where the prosecuting party has enforced satisfaction by the actual imprisonment of the party proceeded

against. Barton v. Butts, 32 How. Pr. 456.

84 Apply to the court. N. Y. Code Civ. Pro., § 814.

85 The court have doubtless power to grant this application without requiring notice, except notice to third persons, if any, interested in the proceeds.

86 Possession may be important beside mere leave to sue, if the suit is to be without the State. When a bond or undertaking runs directly to a party, no leave to sue is requisite. Krause r. Rutherford, 45 App. Div. 132, 60 N. Y. Supp. 1047.

87 These actions are regulated in

88 Under Code Civ. Pro., § 1880.

II. That upon entering upon his office [or other time, according to the fact] said sheriff duly executed, with W. and X., his sureties, a joint and several bond to the people of this State, a certified copy of which bond is hereto annexed.89

[Allege actionable default, etc., for instance thus:]

[In case of wrongful levy9] III. That on or about the

day of 19 , a warrant of attachment was duly issued and granted by one of the justices of this court, in an action therein pending by one M. against one O., and said warrant was on said day duly delivered to said sheriff, to be executed against the property of said O., as therein directed.

IV. That said sheriff under and by virtue of said warrant of attachment, claimed to seize, and did actually seize, the property of your petitioner, as follows [describe briefly].

V. That your petitioner claimed said property from said sheriff, who thereupon summoned a jury to try the claim; and said jury, by inquisition, duly found that the same belonged to your petitioner.

VI. That thereupon the attaching creditor, M., indemnified said sheriff for the detention thereof, whereby he was required as such sheriff to detain the same, and he did so detain it, to the damage of your petitioner dollars, and that no satisfaction

for said injury has been received by your petitioner.

[Or, in case of neglect to pay over] III. That on or about the day of 19 an execution was duly issued on

New York by Code Civ. Pro., §§18801892. Section 1881, in relation to the prosecution of the official bond of a sheriff, is permissive, although in form mandatory, and the court will not grant leave to sue unless it is necessary to promote the obvious ends of justice. People ex rel. Wehle v. Conner, 8 Hun, 533. Long delay may be fatal. Matter of Van Eps, 56 N. Y. 599 (bond of master in chancery).

An official bond to a county, instead of to the people, is within the provisions of Code Civ. Pro., § 1888, and leave to sue upon it may be granted to the person aggrieved. Town of Ulysses v. Ingersoll, 182 N. Y. 370.

The bond of a personal representative of a decedent is not within these provisions. Dunn v. Am. Surety Co., 43 App. Div. 91, 59 N. Y. Supp. 429. But receivers, assignees, and trustees are public officers within the Code provisions (§ 1890).

89 A certified copy of the bond must be attached.

90 This Form is adapted from People v. Schuyler, 4 N. Y. 173; compare People ex rel. Comstock v. Lucas, 93 N. Y. 585, where the condition of a constable's bond was examined and held not to cover a case of levy on stranger's property.

behalf of your petitioner against the property [or, the person] of one M., upon a judgment for dollars, theretofore duly recovered by your petitioner against said M., in the Court of

[if recovered in another county, add, and a transcript of which was duly docketed in said county of

which execution

was directed and delivered to said sheriff, to be executed.

IV. That as your petitioner is informed and believes, said sheriff collected and received thereupon to the use of your petitioner, dollars besides his fees and poundage, as appears

by the annexed affidavit of C. D.

91

V. That more than sixty days have elapsed since said delivery of said execution.

VI. That although your petitioner did, on or about the day of

19

at

demand of said sheriff that

he pay over the same, he has, in violation of his duty, wholly failed to do so.92

[In either case, if recovery has been had against the sheriff, allege it, for instance, thus] VII. That your petitioner sued said sheriff for [so seizing and detaining his goods], and recovered judgment against him for dollars, on which execution has been issued and returned wholly unsatisfied, and that as the applicant is informed and believes, said Y. Z. is insolvent and unable to respond in damages.93

VIII. [If a short order to show for regular notice, state reasons.94 pense with notice, state] That no

91 A verified petition is an affidavit within the requirement of N. Y. Code Civ. Pro., § 1880; Id. § 3343, subd. 11; but if any material allegations as to the cause of action are on information and belief, it is necessary to add corroborating affidavits.

92 On an application for leave to suc the bond on this ground, demand must be alleged. Rhinelander v. Mather, 5 Wend. 102. Or inability to make it with due diligence. Lewison v. Hoffman, 8 Misc. 583, 60 N. Y. St. Rep. 582, 20 Supp. 1119; N. Y. Code Civ. Pro., § 1891. Or recovery of a judgment against him.

cause is asked as a substitute If the court is asked to disprevious application for leave

93 In the exercise of the discretion conferred by the statute, the court has required the applicant to show by affidavit or otherwise, that the sheriff was individually unable to respond in damages. Anderson v. Hitchcock, 2 Wend. 299. But a recovery against him is not essential. Exp. Chester, 5 Hill, 555.

Under Greater New York charter, § 1428, only a person who has first obtained a judgment against a New York city marshal may move for leave to prosecute his official bond. 94 See p. 171 of this volume.

to sue on said bond95 has been made to the knowledge of plaintiff [except, etc.96].

WHEREFORE, your petitioner asks leave to prosecute said bond of said sheriff in this court, to recover his damages in the premises, and for such other or further order as may be just.

[Date.]

[Verification as in Form No. 193, p. 326.]

[Signature.]

[Notice of presentation as in Form No. 339 (below).97] [Or, order to show cause as in Form No. 195, p. 327 (above).]

FORM No. 307.

Order granting leave to sue on official bond.

At a special term [etc., as in
Form No. 94, p. 255.]

On reading and filing the annexed petition of A. B., verified the day of 19 and a certified copy of the official bond of Y. Z. [and proof of due service of notice of this motion on said Y. Z., and on W. and X., the sureties on his said bond], and after hearing O. P., of counsel for A. B., and S. T., Esq. [or, no one appearing] for in opposition, now, on

motion of Q. R., attorney for the petitioner:

[Where the suit is to be in the claimant's names] ORDERED, that A. B. be and he is hereby permitted to maintain an action on said bond, against Y. Z., and against W. and X. as sureties therein, in this court,99 in the name of said A. B. as plaintiff, ast if he were the obligee named in said bond.

Enter [initials of judge and official title].

95 N. Y. Code Civ. Pro., § 1882. 96 See p. 171 of this volume. 97 The court have power, under N. Y. Code Civ. Pro., § 1892, to grant the leave to sue without notice; but a counter-motion on notice may be made to vacate, either by the officer or his sureties. Id. Matter of Chamberlain,

18 Abb. Pr. 103, 42 Barb. 281, 28 How. Pr. 1.

98 This is now the proper practice in New York. N. Y. Code Civ. Pro., §§ 1881, 1889.

99 Must be brought in court granting the leave. Id., §§ 1881, 1890.