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FORM No. 516. Notice of payment into court in lieu of undertaking. [Title of court and cause.]
Please take notice, that (pursuant to the order made herein on the day of
, 19 ) the plaintiff has paid into court the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded against him in this action.
[Date, signature, and address as in Form No. 518.]
FORM No. 517.
Undertaking for costs. [Title of cause. ]
WHEREAS, an order has been made in this action, on the day of , 19 , requiring the plaintiff to file, with the clerk of this court, an undertaking to the defendant for the costs of this action,
Now, THEREFORE, we, C. D., of , and E. F., of jointly and severally undertake, and become bound to the defendant, that we will pay upon demand, to the defendant, all costs which may be awarded to him in this action, not exceeding the sum of (two hundred and fifty] dollars. 8 [Date.]
[Signature.] [Acknowledgment and affidavit of sufficiency and allowance as in Forms Nos. 1, 252, 255.]
[Notice of exception to, and justification of sureties as in Forms Nos. 257, 258.9]
6 Under N. Y. Code Pro., it was held that the statute required only one bond for costs, which should run to and was for the benefit of all the defendants, and that each of two or more defendants, though appearing separately, could not require a bond to him as security for his costs. Leftwick r. Clinton, 26 How. Pr. 26. Followed, under N. Y. Code Civ. Pro. in Rothschild r. Wilson, 24 Abb. N.
securities, see Bonds, page 25 of this volume; and UNDERTAKINGS, page 415.
1 Covers appeal costs as well. Forty-second St., etc., Ry. Co. t. Guntzer, 36 N. Y. Super. Ct. 567.
8 At least $250. See ante, page $70, note 1.
9 If the sureties are excepted to. they must justify, although they may have made an affidavit of sufliciency, a copy of which has been served with the undertaking. Bronson v. Freeman, 8 How. Pr. 492, Harris, J.
For the general principles applicable in this and other respects to such
FORM No. 518.
Notice of filing undertaking.10 [Title of court and carlse.]
Please take notice, that an undertaking for costs of this action pursuant to the order made herein on the day of 19, has been duly executed and filed on the day of 19, with the clerk of this court. [Date.]
[Signature and address of],
Plaintiff's attorney. [Address] To
FORM No. 519.
Bond by receiver for costs. [Penal clause, etc., as in Form No. 35, p. 32.]
WHEREAS, the said plaintiff, as receiver of the property and effects of Y. Z. [for instance, duly appointed in proceedings supplementary to execution instituted upon a judgment recovered by A, B, against said Y. Z."], purposes to commence an action in the
Court against the said defendant, upon leave of court being obtained, now the condition of the above obligation is such, that if the above-named plaintiff [or if he be a nonresident name, instead, the sureties] shall pay, on demand, all costs that may be awarded to the defendant in the said action, then the above obligation to be void; otherwise to remain in full force and virtue. Sealed and delivered in the presence of
[Signature and seals.] [Witness's signature.). [Proof or acknowledgment, affidavit of sufficiency and allowance,
as in Forms Nos. 1, 6, 252, 255.]
10 It is the common practice to serve a copy of the undertaking, with notice of filing indorsed thereon; but the statute does not require more than service of notice of filing.
11 In case of a receiver in supple mentary proceedings N. Y. Gen. Rules No. 78 requires such a bona unless the written request of the
creditor in whose behalf he was ap. pointed to bring the action has been filed. In all other cases the court may require a bond for costs from a receiver asking leave to sue, unless he shows he has sufficient property in actual possession to secure the defendant for costs.
FORM No. 520. Affidavit to obtain order dismissing action for failure to file security for costs. [Title of court and cause.] [Venue.]
Z. T., being duly sworn, says:
II. That on the day of , 19 , an order was duly made herein, on application of the defendant by Mr. Justice J. K., requiring the plaintiff to file security for the defendant's costs, as a non-resident plaintiff, within ten days from service upon plaintiff's attorney of a copy of said order; that said order was duly served on plaintiff's attorney on said day of
, 19 .
IV. That before the expiration of said period of ten days, deponent at request of the plaintiff's attorney, consented that said time to file said security bond be further extended five days; that the said time as so extended by consent, expired on the day of
last; that plaintiff has failed to pay into court the sum of two hundred and fifty dollars, or to file an undertaking to secure defendant's said costs. [Jurat.]
[Signature.] [Serre rith notice of motion to dismiss complaint with costs.12]
FORM No. 521.
At a Special Term [etc. See p. 255). [Title of cause.] On reading the order of Mr. Justice J. K., herein, dated the day of , 19 , and filed here the day of
, 19 , and on reading and filing the defendant's notice of motion for the dismissal of the plaintiff's complaint with costs, with the affidavit of Z. T., verified the day of
19, showing that the plaintiff has failed to comply with the requirements of said order thereto annexed; and after hearing Z. T., of counsel for Y. Z. and A. T., of counsel for (or, and on reading and filing proof of service of due notice of this motion, and no one appearing for] A. B., in opposition, and on motion of Z. T. attorney for the defendant:
12 N. Y. Code Civ. Pro., $ 3277.
13 The defendant is entitled to no affirmative relief upon any counter.
claim interposed. Henman r. Pierce, 50 Hun, 209, 2 N. Y. Supp. 861.
ORDERED, that the complaint of the judgment herein, be and the same is hereby dismissed, and that judgment be entered in favor of the defendant accordingly, and for the costs of the action, and for ten dollars costs of this motion. Enter: [signature of judge by initials of name and tille.]
[Enter judgment upon this order as in ordinary case of dismissal for want of prosecution, etc.]
SPECIFIC LIEN AND PROVISIONAL REMEDIES, INCLUDING THE
VARIOUS METHODS BY WHICH POSSESSION OR SECURITY
ARTICLE I. WHAT ACTIONS ALLOW OF THESE REMEDIES.
II. LIS PENDENS.
V. DEPOSIT OR DELIVERY OF PERSONAL PROPERTY.
WHAT ACTIONS ALLOW OF THESE REMEDIES. 1. Two classes of cases.
2. Neither remedy necessarily exclu
sive. 1. Tuo classes of cases.] – If the object of the action is to reach specific property, the principal modes of laying hold of it before judgment are: (1) Filing a lis pendens, which fixes a specific lien upon real property; (2) Proceedings to replers, which obtain possession of personalty, or security for its forthcoming; (3) An order for delivery, or the deposit in court, of personalty, or for seizure under a lien; (4) A receivership, which fixes a lien on property of either class, and may secure its possession; (5) An injunction, which may prevent a change of title or possession of property of either class, whether within or without the jurisdiction.
Beside these aids to actions for specific relief, the remedies available in other actions also, for the purpose merely of holding the property or person of the adversary, to await the issue of a money execution, are: (6) Attachment, which in certain classes of cases may bind all or any of his property not exempt, unless he will give security for payment of an anticipated judgment : and (7) Arrest, which may hold his person, unless he will give the like security.14
14 The New York Code of Civil Procedure (chap. 7) classes only Arrest, Attachment, Injunction, Receivership, and Delivery or deposit ordered upon an admission, as Provisional Remedies. Proceedings to replevy a chattel, which