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FORM No. 644. Another form; action affecting specific property. And the said W. X. and Y. Z. as assignees for the benefit of creditors of said M. N., and each of them and their successors and each of their attorneys, agents, and servants be, and they are hereby restrained and enjoined from bringing or prosecuting any action or proceeding against this plaintiff relative to the property mentioned in the complaint,84 except in this action, or from any manner interfering with said property.
FORM No. 645. Against prosecuting divorce in another State. From further prosecuting by yourself, or by any counselor, attorney, or agent, the suit or action for a divorce commenced or attempted to be commenced by you against C. N. F., the above named plaintiff, by libel, in the Court of Common Pleas for the city and county of Philadelphia, in the State of Pennsylvania, or any other suit of action for a like divorce in any other State than the State of New York; and from coming into any house or place where she, the said C. N. F., may reside or be, and from removing or taking any measures in person, or by your counselors, attorneys, or agents, to remove the said C. N. F. from or out of the State of New York; and you, the said E. F., your counselors, attorneys, and agents, are also hereby ordered and enjoined, until the further order of this court, absolutely to desist and refrain from selling, conveying, or in any manner disposing of, or parting with, or incumbering the lands, tenements, and real estate of you, the said E. F., situate in the State of New York, or any part thereof.85
FORM No. 646.
Against sale on execution.86 That W. B. S., as survivor of M. L. S. and C. E. O., individually and as executor of and trustee under the last will and testament of said M. L. S., deceased, the defendants in this action, their attorneys, agents, and servants, during the pendency of this action, be and they are hereby enjoined and restrained, and this court doth hereby order and require them and each of them absolutely to refrain from making and permitting to be made
84 It is better to describe it sufficiently to identify it.
85 This form was used in Forrest v. Forrest.
86 From an unreported case in
which this injunction was sustained on the ground that the claim had been satisfied before judgment, and the judgment obtained by fraud.
any sale of the right, title, and interest of J. C., Jr. (the plaintiff herein) which he had on the day of , 19 , or at any time afterwards, of, in and to the premises and property, situate in the [city and] county of , and known by the street number
street, under and by virtue of a certain execution dated , 19 , issued to the sheriff of the city and] county of , under the judgment mentioned in said execution and in the complaint herein, as rendered on the day of , 19, in an action in the Supreme Court of the State of New York, between M. L. S. and W. B. S., plaintiffs, and J. T. D. and J. C., Jr., defendants, and from making or permitting to be made any sale whatever of such right, title, and interest, and from all further and other proceedings under said execution, and from issuing any further or other execution or executions upon said judgment, and from all further and other proceedings to collect or enforce said judgment,
FORM No. 647. Against sheriff executing writ of assistance. That the above named defendants and all coroners and each of them do and immediately and absolutely and until the further order of this court desist and refrain from executing or attempting to execute any paper purporting to be a writ of assistance, or a copy thereof, in an action in which A. C. is plaintiff and the Albany and Susquehanna Railroad Company and J. H. R. and others are defendants, and that the above defendants do also each of them refrain from executing or attempting to execute any paper in the nature of such a writ (against or affecting the plaintiff in this action or his property until, etc.).
FORM No. 648.
Against proceedings for dispossession.87 From taking any proceedings to dispossess the plaintiff from the house and lot No.
street, in the city of and particularly from issuing any warrant of removal, or taking possession under proceedings commenced before Judge M. N., of the court of , on the ground that (the demised premises were deserted by the tenant — or, that rent is unpaid) and from beginning any other suit or proceeding for the recovery of the possession of the premises aforesaid, or from entering upon said premises, or from interfering, in any way, with the plaintiff's possession of the same.
87 See par. 11, p. 909, and notes.
FORM No. 649.
Another form. From further prosecution of any and all proceedings to summarily or otherwise evict or dispossess the plaintiff from the ground or first floor of the premises No.
street, in the city of , and from otherwise disturbing the plaintiff in the full and peaceable possession and enjoyment thereof. 88
FORM No. 650.
Another form.80 [As in last Form to the t, continuing] from instituting or carrying on any summary proceedings to eject the plaintiff from the premises described in the complaint, on the ground that his term has expired by reason of its limitation.
FORM No. 651.
Another form. From in any wise interfering with the peaceable enjoyment by the plaintiff herein, of the premises known as No. street in [the city of New York], by virtue of any pretended judgment rendered in summary proceedings by the defendant Y. Z., or by the Municipal Court of the City of New York, for the Borough of Manhattan in the Third Judicial District.90
IV. AFFIDAVIT AND ORDER TO STAY WASTE.
FORM No. 652.
Affidavit to obtain order to restrain waste.
A. B. being duly sworn, says:
88 Sustained in McRobert v. Harri. son, 20 Wkly. Dig. 228, where it was held that if summary proceedings to evict a tenant who is equitably enti tled to a new lease are brought in a court having no equitable jurisdic. tion, for the purpose of putting into possession a new tenant who has taken a lease with knowledge of the equitable rights of the other, their prosecution may be enjoined in an action brought to obtain a degree de
claring the second lessee to be a trustee for the first. S. P., Crawford v. Kastner, 26 Hun, 440, 63 How. Pr. 90. See, also, Form No. 544, and note.
89 Sustained in Crawford v. Kast. ner, 26 Hun, 440, 63 How. Pr. 90, where the objection to the proceedings was plaintiff's right to a renewal lease, a question not within the juris. diction of the District Court.
90 See Form No. 544 and note.
recover possession of the lands mentioned in the complaint hereto annexed – or, to have the lease held by the defendant of the lands mentioned in the complaint annexed adjujiged to be forfeited, and to recover possession of said lands, with damages for the waste); and that all the allegations of said complaint are true, to the knowledge of this deponent.
III. That on or about the day of , 19 , said defendant has caused to be cut and taken off and chopped up into cord-wood, the wood and timber then growing and being on said premises, and has now, cut and piled up on said premises. ready to be taken therefrom, as deponent is informed and bar lieves, several hundred cords of said cord-wood, of the value of at least dollars. And the deponent further says, that the said wood and timber so cut and corded is not required for the necessary repair of any fences, buildings, or other structures which were upon said premises at the time of the said sale, nor for the necessary firewood for the use of the family of the said defendant.
IV. That the said defendant has made preparations to continue to cut the remaining wood and timber growing upon said premises, and is continuing daily to cut the same; and that, as deponent is informed, he, the said defendant, together with one l. N., and others whose names are unknown to deponent. and to whom he, the said defendant, has contracted, or proposed to dispose of said wood, or a portion thereof, threaten to, and are actually proceeding, with their boatmen, cartmen, servants and persons in their employ, to take and remove off and dispose of the said cord-wood, wood, and timber. Deponent is so informed by said J. V., who, however, refuses to make an affidavit thereof for this motion.
V'. That the land so purchased by deponent is principally val. uable for the sake of said wood and timber, and that the de struction thereof, as aforesaid, is a permanent injury to the freehold.
VI. That the defendant is wholly insolvent and irresponsible, and unable to answer to the plaintiff in damages in the premises; and plaintiff, as he verily believes, will be left without remedy as to the timber already cut unless the defendant is enjoined from removing or interfering with it.
[If ex parte add statement as to no previous application.] [Jurat.]
FORM No. 653.
Order to stay waste.91 [Name of] Court [or if a court order]
At a Special Term [etc., as in Form
No. 94, p. 255 of this volume.] [Title of action.]
On the annexed affidavit of A. B., verified 19, and on motion • of M. N., his attorney,
ORDERED, that the defendant above named be and he is hereby restrained and prohibited from committing any further waste upon or damage to the premises therein described. [Date.]
[Signature of judge and initials of title.] [Or if a court order] Enter [signature by initials of name
and title.] SECTION II.
THE SECURITY. 1. Power of the court.
(655) Undertaking on injunction, ir 2. Statutory requirements.
ordinary cases (under 3. The practice.
Code). 4. Form.
(656) ---- to stay trial of 5. Consent to reference, etc.
money action after issue. 6. Security on staying proceedings (657) --- to stay proceedings
in money action after ver7. – in what cases.
dict, report or decision, and 8. — fraud.
before final judgmeni. 9. - corporation cases.
(658) -- - to stay proceedings 10.- persons not in privity.
on a money judgment 11. Relief from the obligation.
(where amount is paid into
(659) The same; where undertaking
is given in lieu of payment (654) Bond required by the court
into court. on granting injunction (660) Undertaking on injunction to (common form where there
stay proceedings in ejectis no statute).
ment, or for dower. 1. Power of the court.] — The power to grant an injunction being discretionary, the court has inherent power to require as a condition of granting it, that security be given ;92 and the settled practice, in the absence of statute, is to require a bond or undertaking as a condition of granting an injunction pendente lite,93
91 This order may be granted, by the court or a judge thereof, ex parte and without security, N. Y. Code Civ. Pro., -8 1681.
For order to stay waste after sale on execution, see chapter on EXE CUTION.
92 Russell v. Farley, 105 U. S. 433, 438. 93 Smith v. Day, L. R. 21 Ch. Div. 421; Seton on Decrees, 65. The reason is, that according to the better opinion, the party enjoined by