[Acknowledgment as in Form 254, p. 479, supra. Affidavit of sufficiency and approval as in Forms 252 and 255, pp. 479, 480 of this volume. File with clerk; notice of filing as in Form 256, p. 480.] [Exceptions by defendant, and justification as in Form 257, etc.] FORM No. 655. Undertaking on injunction in ordinary cases25 (under Code). [Title of court, and of action in which the injunction is asked.] WHEREAS, the plaintiff above-named is about to apply or has applied for an injunction restraining the above-named [name of defendant], his agents, attorneys and servants in respect to [indicate concisely the scope of the injunction:] Now, THEREFORE, the undersigned [name or names with residences of sureties, if any], do hereby [if more than one sign say, jointly and severally] undertake that said plaintiff will pay to the said defendant26 [or, defendants or either of them] so enjoined such damages not exceeding the sum of dollars, as defendant may sustain by reason of the said injunction, if the court27 shall finally decide that the plaintiff was not entitled thereto. [Such damages to be ascertained and determined by the court, or by a referee appointed by the court, or by a writ of inquiry, or otherwise, as the court shall direct.] [Date.] [Execution and directions as under last Form.] FORM No. 656. [Signatures.] Undertaking on injunction to stay trial of money action after issue.28 [Title of court and action in which injunction is asked.] WHEREAS, the above-named plaintiff, A. B., has applied or is about to apply for an injunction in this action, restraining the 25 Whether plaintiff must sign, and, if surety is required, whether there must be more than one, is for the court or judge to say. Page 455, paragraph 14; N. Y. Code Civ. Pro., § 811. It is the usual practice, in offering an undertaking upon an ex parte application, for the plaintiff not to execute, and to provide two sureties (or a surety company). 26" Defendant" here means all that are enjoined and obey whether they have appeared or not. Cumberland Coal & Iron Co. v. Hoffman Steam 27" The court" here means a court having jurisdiction to decide, and includes an appellate court. Town of Guilford v. Cornell, 4 Abb. Pr. 223. 28 See first note to preceding Form. If the defendant's motion papers do not show that issue has been joined in the action sought to be stayed, the statute does not apply. Richards v. Goldberg, 7 Misc. 388, 27 N. Y. Supp. 919. above-named Y. Z. from proceeding to the trial of an action. pending in the court of , wherein said Y. Z. is plaintiff, and the said A. B. is defendant, and the complaint demands judgment for a sum of money only, and issue has been joined, Now, THEREFORE, we C. D., of No. city of street, in the York, and E. and county and State aforesaid, do hereby [if more than one sign say, jointly and severally] undertake to and with the said defendant Y. Z., pursuant to the statute, that the plaintiff A. B. will pay to the said defendant Y. Z. [the party enjoined], or his representative, all damages and costs which may be recovered by him in the said action stayed by said injunction, not exceeding dollars; and, also, all damages and costs that may be awarded to him in this action in which the injunction order is granted. [And the damages in this action may be ascertained by reference or otherwise, as the court may direct]. [Date.] [Signatures.] [Directions for execution, etc., as under Form 654.] FORM No. 657. Undertaking on injunction to stay proceedings in money action after verdict, report, or decision, and before final judgment.29 Court of [As in last Form to the *, continuing:] in a certain action pending in the wherein the said Y. Z. is plaintiff and the said A. B. is defendant, and the complaint demands judgment for a sum of money only, and a verdict [or, a report of a referee or, a decision of the court] has been rendered, but final judgment has not been entered therein; and the said plaintiff A. B. elects to give this undertaking, pursuant to the statute, in lieu of payment into court: Now, THEREFORE, we [names and residences], do hereby [if more than one sign, say, jointly and severally] undertake to and with said Y. Z., pursuant to the statute, that the plaintiff, A. B., will pay the sum of dollars [sum awarded by verdict, etc.], and all costs of said action, amounting together to the sum of dollars, with interest thereon from the 29 In this case there must be two or more sureties (N. Y. Code Civ. Pro., 618), unless a company gives the undertaking. (Page 455, para day of graph 13). Whether plaintiff must also sign is for the court or judge to say. N. Y. Code Civ. Pro., § 811; p. 455, supra, paragraph 14. 19 [here add as may be directed by the court, for instance] to the said Y. Z., or his representative, in case this court shall finally decide that said A. B. was not entitled to the injunction. [And the damages may be ascertained by a reference or otherwise, as this court may direct.] [Date.] [Signatures.] [Directions for execution, etc., as under Form 654.] FORM No. 658. Undertaking on injunction to stay proceedings on a money judgment (where amount is paid into court).30 Court of [As in Form 656 to the *, continuing:] upon a judgment for a sum of money recovered by said Y. Z. against said A. B. in the in an action wherein the said Y. Z. was [plaintiff] and the said A. B. was [defendant]: on the day of 19 Now, THEREFORE, we [name or names, with residences and occupations] do hereby [if more than one sign, say, jointly and severally] undertake to and with said Y. Z., pursuant to the statute, that the plaintiff A. B. will pay to said defendant Y. Z. all damages and costs which may be awarded to him by the court in this action in which such injunction order is granted, not exceeding the sum of dollars. [And the damages may be ascertained by a reference or otherwise, as the court may direct.] [Date.] [Signatures.] [Directions for execution, etc., as under Form 654.] FORM No. 659. The same; where undertaking is given in lieu of payment into court.31 [As in Form 656 to the *, continuing:] upon a judgment for dollars, damages and costs, recovered a sum of money, viz., by said Y. Z. against said A. B. in an action in the Court of 19, wherein the said Y. Z. was [plaintiff] and the said A. B. was [defendant]; and said plaintiff elects to give an undertaking pursuant to the statute in lieu of payment into court, as well as to secure damages and costs: 30 Whether plaintiff must sign, and whether, if surety is required, there must be more than one, is for the court or judge to say. N. Y. Code Civ. Pro., § 811; p. 455, supra, paragraph 14. 31 In this class of cases there must be two or more sureties (N. Y. Code Civ. Pro., § 618), unless a fidelity or guaranty company gives the undertaking. Page 455, supra. Whether plaintiff also must sign is for the court or judge to say. Page 455, supra; N. Y. Code Civ. Pro., § 811. Now, THEREFORE, we [names and residences] do hereby [if more than one sign, say, jointly and severally] undertake to and with the said Y. Z., pursuant to the statute, that the plaintif A. B. will pay the said sum of dollars [specify the full amount of the judgment, including interest and costs], with interest from the day of 19, [here add the direc tions of the court; see, for instance, clause in Form No. 657, and further, that the plaintiff A. B. will pay to the said defendant Y. Z. all damages and costs which may be awarded to him by the court in this action in which such injunction order is granted, not exceeding the sum of dollars, in addition to the amount and interest herein above specified. [And the damages may be ascertained by a reference or otherwise, as this court may direct.] [Date.] [Signatures.] [Directions for execution, etc., as under Form 654.] FORM No. 660. Court of Undertaking on injunction to stay proceedings in ejectment or for dower.32 [As in Form 656 to the *, continuing:] in an action of ejectment [or, for dower] pending in the wherein said Y. Z. is plaintiff and the said and a verdict [or, the report of a referee the court] has been had: A. B. is defendant. or, the decision of Now, THEREFORE [name or names, and residences of sureties], does [or, do] hereby [if more than one sign, say, jointly and severally] undertake to and with said Y. Z., pursuant to the statute, that the plaintiff A. B. will pay to the said defendant Y. Z., or his representative all damages and costs not exceeding the sum of dollars, which may be awarded to him in this action wherein such injunction is granted. [Date.] [Signatures.] [Directions for execution, etc., as under Form 654.] 1. Personal service.]—Wherever practicable serve the order personally on each person whom it is desired to be able to punish for contempt in case of disobedience; as the courts often justly refuse to punish a party for contempt after service only on the attorney; although the power to do so sometimes exists. If the injunction is by judge's order, deliver an uncertified. copy, and exhibit to the person served the original order, showing the judge's signature. If a court order the N. Y. statute requires delivery of a certified copy. 33 But service of an ordinary copy, accompanied by exhibiting a certified copy and showing the certificate and seal, in the absence of statutory requirement, is enough. The summons should be served at or before the time of service of the order.34 Copies of the papers upon which the order was granted must be delivered with the copy of the order.3 35 2. Actual notice.] -In case personal service is delayed by distance, or other hindrance, it is usually good policy to give actual notice, which may be by telegraph or otherwise, taking care that it is both distinct and provable. An injunction not only restrains the parties to the action in which it was granted, but also, when so drawn, those who act under or in connection with a party, as attorneys, agents, or employes. And no person with knowledge of the terms of an injunetion order, even if not a party, can aid or co-operate with a party in doing the prohibited act without incurring the penalty prescribed by statute.36 3. Proof of service.] — It is best to specify the hour of service in the affidavits of service and to have affidavits verified immediately upon effecting service, without awaiting the time when it may be desired to use them. 33 N. Y. Code Civ. Pro., § 610. 34 Daly v. Amberg, 126 N. Y. 490 (while irregular if served before summons it is not void); People ex rel. Cauffman v. Van Buren, 136 N. Y. 252 (the court may grant the order before service of summons, to become operative upon its service with order). 35 Code Civ. Pro., § 610. Failure to serve copies of the papers is not a ground for vacating order. Knudson v. Friedery, 27 Misc. 98, 57 N. Y. Supp. 581 (copy of undertaking not served); Augrich v. McOwen, 4 N. Y. Monthly L. Bul. 66 (copy of undertaking served without copy of judge's approval indorsed). 36 People ex rel. Stearns v. Marr, 181 N. Y. 463, and cases cited. |