Page images

sum in which they are required to justify is hereby allowed to be
made up as in the within justification set forth.]

[Signature of judge and initials of title.]
[If by court, prefix to signature the words,

By the court.] [File undertaking, acknowledged, with affidavits of sureties, and approval, with clerk of court.]

FORM No. 825.

Notice of filing of bond or undertaking.15 [Title of court and cause, unless indorsed.]

Please take notice, that a bond [or, undertaking] [and order fixing the amount thereof], of which the foregoing [or, within] is a copy, was duly filed herein on the day of ,19 , with the clerk of this [or, the within named court.] [Date.]

[Signature and office address of], [Address] TO

Attorney for Attorney for [Serve a copy of the security, acknowledgment, affidavit, and approval; and this notice therewith, or indorsed thereon.]

FORM No. 826. Order that plaictiff elect between arrest and attachment. [Caption and recitals, see Form No. 819 or 820, supra, of this


ORDERED, that the plaintiff elect, within days after service upon his attorney of a copy of this order, as to whether he shall hold the attachment or order of arrest herein against defendant, and in default of such election, then that both of said provisional remedies be vacated.

[Authentication, see Form 818.]

FORM No. 827. Notice of election between arrest and attachment. [Title of court and action.]

Please take notice, that pursuant to an order of this court, entered herein on the day of

, 19 , requiring plaintiff to elect within days between the attachment or order of arrest issued herein, the plaintiff herein hereby elects to hold the [attachment] issued herein.

[Date, signature and addresses, as in Form 815.)

15 See Vol. I, Article XXV of Chapter 1, on UNDERTAKINGS, paragraphs

35-37, pp. 465–467.






15. Reinstatement.

1. Nature of the remedy.
2. Power of the court.
3. The cause of action.
4. Allegations not essential to a

cause of action.
5. Waiver by joining inappropriate

cause of action. 6. The practice. 7. Time for applying. 8. Prudential rules for drawing at

tachment papers;- complaint. 9. — the affidavits. 10. -- mode of allegation. 11. - amount. 12. — counterclaims. 13. Service of summons. 14. Second application for an attach


(828) Affidavit to obtain attach-

ment. (General Form.)
(829) - by agent or attorney.
(830) Allegation that defendant is

about to depart. (831) -- threat to assign to hin

der creditors. (832) - - fraudulent transfer of

property. (833) - - fraud in contracting

debt and disposing of prop

erty. (834) Undertaking on attachment.

1. Nature of the remedy.] — An attachment under the Code is not the commencement of a proceeding. It is a provisional remedy in an action, which is commenced by the service of a summons. 16

18 An attachment is but an incident to the action, and if the action cannot be brought or maintained, the attachment must fail. Exp. Des Moines & Minneapolis R. R. Co., 103 U. S. 794.

Certain claims contracted within the State for work or materials in building, repairing, equipping or provisioning, etc., vessels, and for wharfage and port expenses, loading, insuring, towing, pilotage, etc. (N. Y. L. 1862, chap. 482, § 1), and for collisions by negligence or willful misconduct (id., $ 33), were at one time enforced by special statutory attachment without action, such an attachment being dischargeable by giving bond to pay the claim if it, and the acquiring of a lien for it, be established, in an action on the bond. Such attachment was not a provisional remedy in an action, like the attachment treated in the text, but a special proceeding. This peculiar remedy has been abolished and the procedure upon such liens has been assimilated with other actions to enforce liens. See N. Y. Lien Law, (L. 1897. chap. 418), 88 30–35. As to the application of this remedy in other jurisdictions, and the exceptions, see Thorsen 1. The J. B. Martin, 26 Wis. 488; Johnson t. Chicago & Pacific Elevator Co., 119 U. S388; Waples' Pro. in Rem., 88 465, 545; and Howe r. Teft (R. I., 1887), 4 New Eng. Rep. 108.

As to attachment for health officers' expenses and storage, see N. Y. Public Health Law (L. 1893, chap. 661, as amended by L. 1900, chap. 268), $ 119.

The court acquires a preliminary jurisdiction upon granting the attachment, but no general jurisdiction is obtained and the preliminary jurisdiction is lost at the expiration of thirty days; this time cannot be extended by the court."? Within the thirty days general jurisdiction must be obtained by service of the summons, or its publication begun. 18

2. Power of the court.] — The power of the court is wholly statutory,19 and the remedy being regarded as a severe one, the statute is construed strictly, so far as necessary for the protection of the alleged debtor against oppression.20 But many technical rulings in the earlier cases under the Code, giving a very strict construction in cases where no such necessity exists, have been overruled by later decisions, under which it is the generally accepted rule that, except when necessary to prevent oppressive practice, the statute is to receive a liberal construction in support of the remedy it provides, and that substantial compliance with its provisions is enough. 21

An application for an attachment is not a matter of right, even in a case clearly within the terms of the statute, but it is granted or refused in the sound discretion of the court.22

3. The cause of action.] — The present statute enumerating the cases in which an attachment may issue, and some earlier cases it supersedes, will be better understood if it be borne in mind that attachment was originally a remedy in commercial cases arising on contract coupled with anticipated evasion of the jurisdiction; while arrest became after the abolition of imprisonment for debt) a remedy for cases of tort, especially if malicious or wanton. The marked tendency of recent successive amendments of the statutes (especially that of 1895, permitting an attachment to

17 Jones v. Fuchs, 106 App. Div. 260, 94 N. Y. Supp. 57. 18 See paragraph 13, post p. 1186.

19 Blossom v. Estes, 84 N. Y. 614. The N. Y. statute (Code Civ. Pro., $$ 635-637) defines the cases in which it is allowable. Robinson v. Col. Spinning Co., 23 App. Div. 502, 49 N. Y. Supp. 4. See Form No. 830 (below).

20 Penoyar v. Kelsey, 150 N. Y. 77, 3 Anno. Cas. 206; McGrath v. Sayer, 19 App. Div. 321, 46 N. Y. Supp. 113; Courtney v. Eighth Ward Bank, 154 X, Y. 688.

21 See Lamkin r. Douglass, 27 Hun, 517; Farrington v. Root, 10 Misc. 347, 31 N. Y. Supp. 126; Van Camp v. Searle, 147 N. Y. 150.

Haebler v. Bernharth, 115 N. Y. 459. Hence the refusal is not reviewable in the Court of Appeals. Sartwell v. Field, 68 N. Y. 341; Rae v. Mayer. etc., 62 id. 631.

issue for a personal tort) has been to extend each remedy into the former domain of the other, so that now there are considerable classes of cases in which either remedy, and, in the discretion of the court, both remedies,23 at once are allowable.

An attachment will not issue in an action for negligently causing death.24

4. Allegations not essential to a cause of action.] - Independent of statute, a plaintiff may, besides alleging his cause of action in the complaint, add allegations not essential, such, for instance, as facts which will avoid an anticipated defense or will show his right to equitable relief incidental and preliminary to recovery. And by the present statute,25 a plaintiff to be able to ask an arrest or have execution against the person, must state in the complaint the grounds therefor (except in the case formerly known as ne exeat).

The better opinion is that in all such cases — and even where, as in the case of grounds of arrest, such allegations must be proved — they are not part of the cause of action in such sense as to preclude an attachment, if without them the case would be proper for an attachment.26

5. Waiver by joining inappropriate cause of action.] — The right to an attachment upon any cause of action is waived by joining in the same complaint a cause of action in respect of which defendant's property is not liable to attachment.27 23 See p. 877 of volume I. 24 James v. Signell, 60 App. Div. 75, 69 N. Y. Supp. 680. 25 N. Y. Code Civ. Pro., $ 549.

26 Compare Etna Ins. Co. r. Shuler, 28 Hun, 338; Wood v. Henry, 40 N. Y. 124, 128; Church of Redeemer v. Crawford, 36 Super Ct. 307, 319; Austin v. Rawdon, 44 N. Y. 63; Atocha v. Garcia, 15 Abb. Pr. 303, 24 How. Pr. 186; Whitney 1. Hirsch, 39 Hun, 325; People v. Mayor of New York, 10 Abb. Pr. 111; Finkemaur 1. Dempsey, 8 Civ. Pro. Rep. (Browne), 418; Alford v. Cobb, 28 H

In Humphrey v. Hayes, 94 N. Y. 594, 603, is a dictum that an allegation of fraud to justify arrest, such as is required by the amendment of 1879, would change the cause of action from contract to tort, or produce a misjoinder. The case, however, was determined on the point that the amendment did not apply to this pending action.

27 Union Consol. Mining Co. 1'. Raht, 9 Hun, 208; S. P., Wilson v. Harvey, 52 How. Pr. 126. There is no objection to the joining of several causes of action upon each of which an attachment may issue, and issuing one attachment for the aggregate amount. Roth v. Am. Piano Mfg. Co., 35 Misc. 509, 71 N. Y. Supp. 1083.

An action against a joint debtor, not served in a previous action in which judgment was recovered on service of his co-debtor, is regarded as an action on the original contract for the purpose of obtaining an attachment. N. Y. Code Civ. Pro., $ 1940.

6. The practice.] — Application for the warrant is made ex parte; and under the New York statute, it must be to a judge of the court in which the action is brought, or to any county judge 28

It must be made on affidavit; 29 and the presentation of the complaint is not essential, although, if it be verified, it may be used as an affidavit for the purpose of the application.30

Inasmuch as it is not the function of a complaint to state evidence, the complaint alone is rarely sufficient. 31

7. Time for applying.] — The application for the warrant may be made before summons served32 and an attachment may be granted at any time before final judgment, even though plaintiff is at the time entitled to judgment.33

According to the principles of the authorities cited in reference to ARREST,34 an attachment may be issued after verdict; and even after judgment when the judgment has been opened and allowed to stand merely as security pending a defense; nor would it be precluded by the ordinary stay of proceedings on a verdict for the purpose of making a case.

8. Prudential rules for drawing attachment papers; the complaint.] — When the complaint is relied on as a part of the proof, see that the warrant refers to it as one of the papers submitted to the judge. Examine it to see what allegations are on information and belief, and see that the verification is regular. Also see that, if the verification is not positive and unqualified, it is only qualified by saying, “except as to the matters therein stated to be alleged on information,” etc.

9. the affidavits.] — An affidavit made by the plaintiff, or the one of several co-plaintiffs who is acquainted with the facts, or of the assignor, if plaintiff sues as an assignee, is desirable. If

28 N. Y. Code Civ. Pro., 8 638. The rule as to ordinary ex parte applica. tions is different. See Vol. I, p. 99.

29 N. Y. Code Civ. Pro., 8 636. 30 See Article III of this chapter, supra, on INJUNCTIONS, paragraph 3.

31 See, for example, a complaint sufficient as a pleading, but defective in furnishing proof of its allegations, Wallace v. Baring, 21 App. Div. 477, 48 N. Y. Supp. 692; Delafield v. Armsby Co., 62 App. Div. 262, 71 N. Y. Supp. 14, 32 Civ. Pro. Rep. 132.

32 N. Y. Code Civ. Pro., 88 638, 416; Stoiber v. Thudium, 44 Hun, 70.

33 First Nat. Bank v. Bushwick Chem. Works, 6 N. Y. Supp. 318, 17 Civ. Pro, Rep. 229, aff’d, 119 N. Y. 645.

34 See next article on ARREST, paragraph 5.

« PreviousContinue »