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much of the property within your county as the said defendant W. M. T. has, or which he may have, at any time before final judgment in this action, as will satisfy the plaintiff's said de mand], together with costs and expenses, and that you proceed hereon in the manner and make your return within the time prescribed by law.

[Teste and signatures as in Form 835.]

II. LEVY AND CUSTODY.

FORM No. 839.

Inventory of property attached.

[Title of court and action.]

county, and O. P.

The undersigned M. N., sheriff of and Q. R., two disinterested freeholders of said county, hereby certify that the following is a true inventory of all the property levied upon by the said sheriff, under a warrant of attachment, issued in the above entitled action by G. H., a justice of the Court [or, county judge of the county of

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], dated the day of 19 together with a statement of the books, vouchers and other papers taken into the custody of said sheriff under said warrant, and the estimated value of each parcel of real property and of each article of personal property attached, and also a true statement of such articles of the personal property as are perishable, as the same has been appraised by us [list of items of personal property, setting estimated value opposite each, and in case of real property, a description of it, stating the estimated value of each parcel, or of the interest of the defendant therein].

And we further certify that the said

property.]

[Date.]

is perishable

[Signatures.]

[File within five days after levy, in the office of the county clerk of the county where the property is attached."]

40 As to definiteness of description, and supplying defects by parol, or by amendment, see Dunn v. Arkenburgh, 48 App. Div. 518, 62 N. Y. Supp. 861, aff'd, 165 N. Y. 669; Laughlin v. Hawley, 9 Colo. 170, 11 Pac. Rep. 46; Sanford r. Pond, 37 Conn. 588; Silver Bow Mining, etc., Co. v. Lowery, 5 Mont. 618, 6 Pac. Rep. 62; Vander

heyden v. Gary, 38 How. Pr. 367; Pumphrey v. Rafferty, 5 Ky. L. Rep. & J. 765; Moore v. Kidder, 55 N. Ĥ. 488.

41 N. Y. Code Civ. Pro., § 654. The attachment, however, is to be filed in the office of the clerk of the court (§ 639).

FORM No. 840.

Oath of appraisers.

[Entitle in the cause, unless indorsed on the return.]

O. P. and Q. R., being each severally duly sworn, each for himself says, that he will well and truly make a full and just inventory, and well and truly appraise the property of the defendant Y. Z. in the above entitled action, levied upon by the sheriff of the [city and] county of by virtue of the warrant of attachment issued in the above entitled action, according to the best of his ability.

[Jurat.]

[Venue.]

FORM No. 841.

Return to attachment.42

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[Signatures.]

I, M. N., sheriff of the county of hereby certify and return, that by virtue of the within attachment, I have seized and taken into my possession the property of the defendant within named, specified in the inventory hereto annexed, and appraised the property therein specified at the sums mentioned in the annexed inventory. [Date.]

FORM No. 842.

Order requiring sheriff to make inventory.43 [Name of] Court [or, if court order]

[Signature.]

At a Special Term, [etc., as in Form 820, p. 1174 of this volume].

Upon reading and filing the annexed affidavit of A. T., verified

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sheriff of the county of

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to return an inventory of the property attached by him under the warrant of attachment issued herein on or about the of A. T., attorney for plaintiff [or, defendant]:

day of

42 When the warrant of attachment has been vacated or annulled, the sheriff must immediately file it in the clerk's office, with a return of his proceedings thereon. Code Civ. Pro., § 712. Otherwise the sheriff is not authorized to return the warrant, and his return of it to the clerk, as merged in the judgment entered in the action and execution issued thereupon, will not defeat a levy made

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19 now on motion

under the warrant, as against junior attaching creditors. Tuck v. Manning, 63 Hun, 345, 17 N. Y. Supp. 915, 22 Civ. Pro. Rep. 94, aff'd, 137 N. Y. 630. Compare Pietsch v. Sommers, 31 App. Div. 255, 53 N. Y. Supp. 438.

43 Under N. Y. Code Civ. Pro., § 681, application for this order may be made by either party ex parte to the court or a judge thereof.

ORDERED, that said sheriff return an inventory thereof [within ten days after service of a copy of this order].

[Date, and signature of judge, with initials of title.]

[Or, if court order] Enter: [signature of judge by initials of name and title.]

FORM No. 843.

Appointment of keeper.45

I hereby constitute and appoint you keeper of all [designating the articles], by virtue of a warrant of attachment wherein

is plaintiff, and said.

defendant. You are, therefore, authorized and required to safely keep the same in custody of the law until otherwise ordered by me.

[Date.]

[Address.]

FORM No. 844.

[Signature of]

Sheriff.

Order permitting plaintiff to examine defendant's books of account in the hands of the sheriff.46

[After appropriate recitals.]

forthwith

ORDERED, That the sheriff of the county of permit the plaintiff herein, or his representative, to examine any books which he now has or may hereafter get into his possession under the attachment issued in this action, so far as may be necessary to discover property upon which said attachment may be levied.47

FORM No. 845.

Affidavit to obtain order under attachment to open debtor's safe deposit box.48 [Title of court and action.]

[Venue.]

M. N., of

being sworn, says:

That he is deputy sheriff of the [city and] county of

and as such had placed in his hands by the sheriff of said county

44 See Vol. I, Form No. 223.

45 From Connor v. Parker, 114 Mass. 331; sheriff's duty to keep is stated in N. Y. Code Civ. Pro., § 614.

46 A plaintiff has such right, under leave of court. Brooke v. Foster, 20

Abb. N. C. 200.

47 From the order in Krooks v. Wise Co., 31 Abb. N. C. 46, where the court struck out a provision directing the sheriff to take possession of the de

fendants' books on the ground that it might be construed as a direction to break open a safe or destroy property.

48 This and the three following Forms are from United States t. Graff, 67 Barb. 304; less fully, 4 Hun, 634.

Compare Hall v. Brooks, 89 N. Y. 33, holding that the court cannot by order require a third person to deliver to the sheriff the attached fund.

for execution, on the

day of

19 a warrant of attachment against the property of the defendant L. G., issued of the court, bearing date said day of 19 on the application of the plaintiff,

by

that in obedience to said warrant and the direction of said sheriff, deponent attempted to attach property of said defendant believed

to be in safe No.

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Co., of

That for that purpose he proceeded on the morning of said day of to the premises of said company, where, as he was informed by plaintiff's attorney, and verily believes, the defendants have rented safe or box No. and have valuable

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property deposited therein. That deponent then and there served a copy of said warrant of attachment on M., the treasurer of said company, at the same time showing him said original warrant, and demanded entrance behind the iron grating in said premises which shut off the safes or lock boxes, of which said safe or box No. is one, which was denied by said treasurer. That deponent then demanded access to, and the contents of, said safe or box No. of said treasurer, which was denied. That said grating was securely fastened and bolted and said safe or box locked, and deponent was unable to enter behind the grating or open said safe without the consent of said treasurer or using physical force to break open said grating and safe. That deponent then demanded of said treasurer a certificate of the property of said defendant held by, deposited with or in the possession of said trust company, which was refused by said treasurer, and no information in regard thereto given by him to deponent.

Deponent says that for the above reason he has not, as yet, had physical possession of said safe or lock box No.

contents.

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or its

[Jurat.]

FORM No. 846.

[Signature.]

Affidavit of attorney for same purpose.

[Title of court and action.]

A. T. being duly sworn, says:

That he is the attorney for the plaintiff in the above action. That summons was issued herein and delivered to the sheriff

for the service of the. day of

19 "

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That thereupon attachment against the property of defendant was duly issued out of this court to the sheriff of said county for execution, bearing date the

day of

19

day of

Deponent further says, that on the

19

an indictment was found against the defendant by the grand jury

of the United States for the southern district of New York, in the second circuit, for smuggling goods into the port of New York, and about that time defendant left this city and took up his residence in Montreal, in Canada. That plaintiff's attorney endeavored to find said G., and in his endeavor to that end had communication with the United States consul at Montreal in regard to G., and upon the day of 19 received

19

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from said consul a telegram, dated Montreal the day of stating that L. G. had executed a power of attorney to his wife, I. G., to withdraw certain deposits from company, of

safe or deposit,

safe or lock box No.

street in

number of That deponent verily believes that the referred to in the affidavit of deputy sheriff M., in this action, is the identical safe referred to in said telegram and is rented by the defendant herein.

Deponent further says, that, owing to the inability of the sheriff to have access to said safe, the same is liable to be opened by the defendant or those acting under him at any moment, and the contents thereof abstracted, to the great injury of the plaintiffs and loss of their security herein.

That to enable the sheriff to have access to said safe and contents, the order of the court is requisite, and the same should be granted as soon as possible and within the time which would be required to apply for the same on regular notice of motion, and that a stay or injunction against any one but said sheriff having access to said safe, in the meantime, is required to protect plaintiff's interests.

Deponent further says, that the defendant herein has not yet been served with the summons herein, nor has his appearance been entered [and that no previous application, etc.; see Form 817.

[Jurat.]

FORM No. 847.

Order to show cause thereon.

[Title of court and action.]

[Signature.]

On the annexed affidavit of M. N. and A. T., and the papers filed and the proceedings had in this action, and on such further affidavits as the court may hereafter permit the plaintiffs to use on this motion,

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