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845. Affidavit to obtain order under attachment to open safe deposit box.

846. Affidavit of attorney for same purpose.

847. Order to show cause thereon. 848. Order to open safe deposit box. 849. Notice of attachment to bind real property.

III. PROPERTY, ETC., IN HANDS OF
THIRD PERSON.

850. Certificate by sheriff to copy of attachment; and notice to third person of levy on property in his hands. General Form.

851-3. Statements of particular property attached, suitable to be inserted in the foregoing Form. Interest in estate of decedent. Funds in hands of brokers. The same; another Form. 854. Certificate admitting possession of funds of the debtor.

855. Certificate of no property, etc. 856. Certificate claiming lien, but denying the defendant's ownership.

857. Affidavit to falsity of certificate, or refusal to make certificate. 858. Order to appear to be examined as to property of debtor under attachment.

859. The same; in the case of an officer of a corporation or association.

860. The same; - another Form; special directions as to examination, and books and papers.

861. Certificate of referee to refusal

to answer.

862. Affidavit in corroboration. 863. Affidavit, order and undertak

ing, when necessary to sue in name of sheriff in aid of attachment.

864. Bond to indemnify the sheriff on his levying an attachment on property in the possession of a third person. 865. Undertaking necessary to hold goods in the hands of a carrier by water, acting in good faith. 866. Undertaking necessary to seize goods in the hands of a carrier by water, acting in good faith.

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877. Affidavit of claimant (or his agent) of a vessel attached. 878. Order appointing appraisers of domestic or foreign vessel. 879. Appraisal of vessel or interest therein.

880. Oath of appraisers of vessel. 881. Undertaking by third person claiming release of domestic vessel.

882. Order releasing domestic vessel. 883. Undertaking by plaintiff to prevent release of foreign vessel. 884. Order releasing foreign vessel. 885. Affidavit of defendant to obtain release of foreign vessel when attachment has been vacated, after undertaking given. 886. Undertaking by defendant to obtain release of foreign vessel after attachment has been vacated, but plaintiff's undertaking has not been discharged. 887. Order for sale of foreign vessel, where plaintiff's undertaking has not been discharged, nor he indemnified.

888. Affidavit by joint owner, or his agent, to obtain sale of foreign or domestic vessel not duly claimed by third person.

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THE PEOPLE of the State of New York to the sheriff of the county of [or, except in the N. Y. City Court,21 to the sheriff of any county of said State]:

WHEREAS, an application has been made to the undersigned by the plaintiff A. B., for a warrant of attachment against the property of Y. Z., defendant, and it satisfactorily appearing to me by the affidavit of M. N., verified the day of

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and by the summons and verified complaint in this action,22 that the action is brought to recover a sum of money only,23 as damages, for breach of contract, express or implied, other than a contract to marry [or, for wrongful conversion of personal property — or, for an injury to person or, property, in consequence of negligence or, fraud or other wrongful act];24 and that a cause

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20 Under N. Y. Code Civ. Pro., § 638, application for a warrant of attachment may be made ex parte to a judge of the court, or to any county judge, i. e., this application, although ex parte, must be made to a judge of the court in which the action is commenced, and not to a juage of any other court except a county court. Hence this rule controls the application of the rules as to ex parte orders laid down in volume I, pp. 99-100, and the restriction of applications to a county judge for ordinary ex parte orders to a judge of the county where the action is triable or the attorney resides, seems inapplicable.

21 N. Y. Code Civ. Pro., § 338. 22 Recite the complaint if it is to be relied upon as establishing any fact. People v. St. Nicholas Bank, 44 App. Div. 313, 60 N. Y. Supp. 719, 30 Civ. Pro. 30.

23 The ground must be recited briefly (N. Y. Code Civ. Pro. 641;

N. Y. Gen. Rules No. 13); and it is well not to state it more narrowly than it actually is, as a motion to vacate can be opposed by new papers only on the ground recited in the warrant. Except for the express requirement of the statute and rule, the recital would not be necessary. Mayor, etc. v. Genet, 63 N. Y. 646; s. P., Tessier r. Crowley, 16 Nebr. 369, 17 id. 207; King . Board, 7 W. Va. 701. An incomplete recital is not a fatal defect, where the affidavit is sufficient. Van Camp r. Searle, 79 Hun, 134, 29 N. Y. Supp. 757; aff'd, 147 N. Y. 150.

It is at least doubtful whether more than one ground for the attachment can be recited in the warrant. See dissenting opinion in Fox v. Mays, 46 App. Div. 1, 61 N. Y. Supp. 295.

24 A mistake in stating the character of action will not vitiate the warrant. Fox v. Mays, 46 App. Div. 1, 61 N. Y. Supp. 295.

of action therefor exists against said defendant, and in favor of the plaintiff, for the sum stated in said affidavit,

[and interest from the

day of

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19 ]; [and if on contract, and that the plaintiff is entitled to recover said sum over and above all counter-claims known to him];

And that the defendant is a foreign corporation;25

[Or, and that defendant is not a resident of the State;]

[Or, and that defendant is a natural person and a resident of the State, and has departed therefrom, with intent to defraud his creditors, and to avoid the service of a summons," 26 or keeps himself concealed therein with the like intent ;]27

[or, and that defendant has removedor, that defendant is about to remove his property from the State, with intent to defraud his creditors; ]28

[Or, and that defendant has assigned, disposed of, or secreted -or, that said defendant is about to assign, dispose of, or secretehis property, with intent to defraud his creditors; ]29

And the plaintiff having also given the undertaking required by law;

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YOU ARE HEREBY COMMANDED to attach and safely keep so much of the property within your county31 which the said defendant Y. Z. has [or, if there are several, say, which the said defendants W. X. and Y. Z., or either or any of them have], or which he [or, they, or either or any of them] may have at any

25 It is not necessary to also recite that plaintiff is a resident or that the cause of action arose in the State, though the affidavit must show it. Maury . Am. Motor Co., 25 Misc. 657, 56 N. Y. Supp. 316.

26 The intent may be stated in the conjunctive. Hall v. Anderson, 17 Misc. 270, 40 N. Y. Supp. 354.

27 These grounds may be stated in the disjunctive. Garson r. Brumberg, 75 Hun, 336, 26 N. Y. Supp. 1003; Williams v. Rightmyer, 88 Hun, 372, 34 N. Y. Supp. 826; Stewart r. Lyman, 62 App. Div. 182, 70 N. Y. Supp. 936. Or in the conjunctive. Delaney r. Bouse, 91 App. Div. 437, 86 N. Y. Supp. 880.

28 A warrant is defective that recites that defendant " has removed or is about to remove," etc. Under such a recital no ground is stated. Cronin v. Crooks, 143 N. Y. 352. It may be amended (see next Form). It is also defective if it alleges the two grounds

in the conjunctive, as they are necessarily inconsistent. Johnson v. Buckel, 65 Hun, 601, 20 N. Y. Supp. 566. It seems the warrant may recite an actual disposition of some and an intent to dispose of the balance. Johnson v. Buckel, supra.

29 A recital is sufficient which states that defendant "has assigned, disposed of or secreted his property with intent," etc. Smith, etc., Co. v. Wilson, 76 Hun, 565, 28 N. Y. Supp. 212; Sturz t. Fisher, 15 Misc. 410, 36 N. Y. Supp. 893.

30 As a means of ascertaining the amount of the fund, the sheriff may doubtless levy on the whole, although the statute, as now expressed, limits the warrant to a direction to attach and keep so much only as may be

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time before final judgment in this action, as will satisfy the said plaintiff's demand of [with interest from the said

day of

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19 1, with costs and expenses; and that you proceed herein in the manner and make your return within the time prescribed by law.33

WITNESS: Hon. [here name any justice of the Supreme Court, if the cause in which the warrant is issued is in that court, adding:] justice of our said court [or, if the cause is in the N. Y. City Court, name any judge thereof, adding, judge of our said court], at the County Court House [or, the City Hall] in this [date of issue] day of

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[Signature of judge,34 and initials of title.]

[Signature and office address of],

Attorney for plaintiff.

[Deliver original warrant to sheriff.]35

FORM No. 836.

Notice of motion or order to show cause upon application to amend warrant.36 [After the usual recitals:] for an order [or, why an order should not be granted] amending said warrant of attachment [state in what particular, as:] by substituting the word " and " fer "or" in the clause in the said warrant in which the grounus therefor were recited, so that as amended it would read [state].

32 Lynch v. Crary, 52 N. Y. 181, 14 Abb. Pr. (N. S.) 85.

33 Return day need not be mentioned. Genin v. Tompkins, 12 Barb. 265; Westphal r. Sherwood, 69 Iowa, 364, 28 N. W. Rep. 640.

As to the time of return, see N. Y. Code Civ. Pro., §§ 23, 712, 3343.

34 By N. Y. Code Civ. Pro., § 641, the warrant must be subscribed by the judge and by the plaintiff's attorney. The omission of the signature of the attorney makes the warrant irregular and void. Lassen v. Burt, 46 Misc. 582, 92 N. Y. Supp. 796. But the omission may be supplied by amendment. Kissam v. Marshall, 10 Abb. Pr. 424.

[Within ten days after granting of carrant, file affidavits. N. Y. Code Civ. Pro., § 639. And within thirty days after granting of warrant serve summons personally or commence publication, if summons had not been previously served. Id., § 538.1

35 Retention of original by justice, and delivery of a copy to sheriff, held

ineffective to obtain a priority over an original warrant delivered thereafter. Niagara Grape Market Co. v. Wygant, 1 App. Div. 588, 37 N. Y. Supp. 486.

36 The court has power to permit an amendment of the warrart, to correct an inadvertent error (Stone v. Pratt, 90 Hun, 39, 35 N. Y. Supp. 519, 25 Civ. Pro. Rep. 176), or to reduce the amount (Sulbacher v. Cawthra & Co., 14 Misc. 545, 36 N. Y. Supp. 8, aff'd on opinion below, 148 N. Y. 755), or to cure the defect of omitting to recite the ground of the attachment (King . King, 59 App. Div. 128, 68 N. Y. Supp. 1089; again, 68 App. Div. 189, 74 N. Y. Supp. 119).

The attachment is not void because the grounds are improperly stated in the alternative, but it is an irregularity which does not affect the validity of the attachment until it is for that cause vacated. Rogers v. Ingersoll, 103 App. Div. 490, 93 N. Y. Supp. 140.

Or, by inserting therein a statement of the ground of the attachment in these words: [state].

FORM No. 837.

Order amending warrant of attachment by reducing the amount therefor.37

ORDERED, that the plaintiff's said motion to amend said warrant of attachment by reducing the same to the sum of

dollars be and the same is hereby granted, and that said warrant of attachment granted in this action on the

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19 be and it is hereby amended so as to reduce the amount thereof to the sum of

dollars.

FORM No. 838.

Warrant of attachment on the ground of wrongful conversion of public moneys.38

[Address as in last Form.]

WHEREAS, an application has been made to the judge signing this warrant, by the people of the State of New York, plaintiffs, for an attachment against the property of W. M. T., defendant, in an action for wrongfully obtaining money belonging to the county of New York, and upon such application, it duly appearing by [the verified complaint in this action, and by] affidavit, that a cause of action exists in said action in favor of the said plaintiffs against said defendant, for the recovery of with interest thereon from the 19 ; and the said affidavit specifying the amount of the said claim, and the grounds thereof; and that the said defendant has wrongfully obtained and received money and property belonging to the county of New York, and has, while holding a public office, wrongfully converted money belonging to the county of New York; [and the said plaintiffs having also given the undertaking required by law:39]

day of

Now YOU ARE HEREBY COMMANDED that you attach and safely keep all the property of the said defendant W. M. T. within your county, or so much thereof as may be sufficient to satisfy the plaintiff's said demand of with interest as aforesaid [or, as expressed in Code of Civ. Pro., § 641, attach and safely keep so

37 From Sulzbacher v. Cawthra, 148 N. Y. 755.

38 Substantially the Form used in People v. Tweed, 63 N. Y. 194.

39 As to the necessity, however, of such undertaking in actions by the people, or by other public bodies, see N. Y. Code Civ. Pro., §§ 640, 1990.

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