hereby require you to furnish me with a certificate, as required in that behalf by the Code of Civil Procedure, of any rights, shares, debts or demands owing to the defendant, or other property of said defendant [or, of said defendants, or either or any of them], incapable of manual delivery, held by you. And in default hereof you will be liable to the examination and attachment in such case provided by law. [May add, I especially attachspecifying particular property-of said defendant. See next three Forms.]62

[Date.]
[Address.]

[Signature of], Sheriff of the county of

63

STATEMENTS OF PARTICULAR PROPERTY ATTACHED, SUITABLE TO BE INSERTED IN THE FOREGOING FORM.64

FORM No. 851.

Interest in estate of decedent.

The right, title and interest of said W. F. D. in and to a certain sum of money, to wit, the sum of $40,000, a legacy due to said W. F. D. from the estate of C. D., deceased, under his will admitted to probate the 19 by the surrogate of New York county, and under which said will you have

day of

is applicable to property not only which is such in its nature, but to that which has become so from its peculiar position, as where it is under pledge or consignment, with advances made upor the property. Clarke v. Goodridge, 41 N. Y. 210; Warner v. Fourth Nat. Bank, 115 id. 251; Simpson v. Jersey City Contr. Co., 165 id. 193.

66

Property of the principal in the proceeds of sales and collections in his agents' hands is property incapable of manual delivery." Greentree v. Rosenstock, 61 N. Y. 583. See also Brownell v. Carnley, 3 Duer, 9 (goods in custom house).

As to debts evidenced by negotiable security, and how the attachment is to be made effectual, see Anthony v. Wood, 96 N. Y. 180; Bills v. National Park Bank, 89 N. Y. 343.

The interest of a pledgor in commercial paper is intangible, and incapable of manual delivery. Warner v. Fourth Nat. Bank, 115 N. Y. 251. An unmatured policy of life insurance which has a surrender value may be levied upon, but it is not an instru

ment for the payment of money within section 649, and need not be taken into custody. Katzenstein v. Lehman, 19 App. Div. 228, 46 N. Y. Supp. 71. Nor is a fire insurance policy, after a loss occurs. Trepagnier & Bros. v. Rose, 18 App. Div. 393, 46 N. Y. Supp. 397, 4 Anno. Cas. 300, aff'd, 155 N. Y. 637. A tontine insurance policy giving certain options to the holder, including a cash surrender value, is not subject to attachment until the option was exercised, and the attachment creditor has no standing to attempt to exercise it. Col. Bank v. Equitable L. Assoc. Soc., 79 App. Div. 601, 80 N. Y. Supp. 428.

A bond and mortgage must be taken into the sheriff's possession. Fiske v. Parke, 77 App. Div. 422, 79 N. Y. Supp. 327.

62 See note 60, supra, as to necessity of specifying the property.

63 Signature by deputy sheriff is sufficient. Gibson v. National Park Bank, 98 N. Y. 87.

64 Unnecessary in New York. O'Brien v. Mech., etc., Ins. Co., 56

qualified as executor; and also all the right, title and interest of the said W. F. D. in and to all moneys which he, said W. F. D., is entitled, or may hereafter be entitled, to receive from the said estate by way of interest; and also all the right, title and interest of the said W. F. D. as residuary legatee under the said will [or, as heir or next of kin in said estate], and also in addition thereto, all property such as is mentioned in the foregoing general notice.

FORM No. 852.

Funds in hands of brokers.

And I further give you notice, that any and all stocks, bonds. and gold and margins in the possession and control of yourself or of your firm, or of any member thereof, belonging to the defendants, or to any one or more of them, or in which, or the proceeds whereof the defendants, or any one or more of them, are in any way interested, whether the said stocks, bonds and gold stand in the name of the defendants, or of any of them, or of any other person or persons, and any and all accounts of the defendants, or any one or more of them, with yourself, your firm, or any member thereof, or in which the said defendants, or any one or more of them are in any way interested, whether such accounts are kept in the name of the said defendants, or of any of them, or of any other person or persons, or in which the said defendants, or any of them, are in any way interested, and any and all balances of accounts which shall or hereafter may result in favor of the said defendants, or of any of them, on a settlement of accounts with yourself, your firm, or of any member thereof, are liable to said warrant of attachment, and are hereby attached by me.

I further give you notice, that besides other property indicated in the general notice of attachment heretofore served on you, the following named stocks, securities, and gold coin, in the possession or control of your firm, belonging to the defendants, to wit: 7,000 U. Pac. [and so on], and also all property, right, interest, and equity of the defendants in said stock, securities and gold coin, have been and are attached by me.

N. Y. 52. That decision was doubted on principle, but followed, as rendering the remedy more effectual, in Carter v. Koshland, 12 Oreg. 492, 8 Pac. Rep. 556. If any part of the prop

erty is particularized, it is desirableto particularize all, or to show expressly that general words are intended to cover additional property. See 56 N. Y. 56.

FORM No. 854.

Certificate admitting possession of funds of the debtor.65

[State facts, for instance, thus:]

[Copy of account current.]

We certify that we are carrying for and on account of W., F. & S., of the stock specified in this account, and also $51,945.05 gold coin, and that W., F. & S. are indebted to us, on account of said stocks and gold, in the sum of $266,007.24.

I, C. W. D., hereby certify that no property whatever, of any description, of the defendant Y. Z., was at the time of the service of the attachment herein on me, or at any time since has been, held by me for the benefit of said Y. Z.; and that no property in which said Y. Z. has any interest was then, or at any time since has been, in my possession or under my control.

I further certify that there is no debt, or demand, of any nature whatsoever, owing by me to said defendant.

[Date, etc., as in last Form.]

FORM No. 856.

[Signature.]

Certificate claiming lien, but denying the defendant's ownership.67 WE HEREBY CERTIFY that there were consigned to us in the name of the defendant one hundred and twenty-five bales of cotton, upon which before the service of said attachment, we

65 The certificate, although evidence against the person giving it, when sued thereon, is not conclusive upon him in such an action. Almy v. Thurber, 12 Abb. N. C. 459; Wright v. Cabot, 47 N. Y. Super. Ct. 229, 89 N. Y. 570.

The sheriff is not bound by such certificate, but may attach the prop erty described by the certificate and all property liable to attachment in the possession of the party. O'Brien r. Mechanics' and Traders' F. Ins. Co., 56 N. Y. 52.

66 See note to last Form. A certificate reading 66 we have no funds for account of " the defendants is insufficient, and an order for the examination of the third person is properly granted upon such certificate. Westervelt v. Marino, 27 App.. Div. 267, 50 N. Y. Supp. 632.

If the certificate is evasive, an examination will be ordered. Seligman v. Falk, 13 Civ. Pro. Rep. 77.

67 A bailee having a lien for an amount exceeding the value of the goods, does not forfeit his lien by cer

had advanced two thousand and fifty dollars, for which with interest thereon and expenses we have a lien on said consignment and we claim such lien.

We further certify that we are informed that said cotton was not really the property of defendant, but was owned otherwise than by him, subject to our said lien. Further, that on the instant we sold said cotton to be delivered on the but the price cannot be determined until after delivery. [Date, etc., as in last Form but one.]

FORM No. 857.

instant,

Affidavit to falsity of certificate, or refusal to make certificate on which to move for examination.68

[Title of court and action.]

[Venue.

A. B., being duly sworn, says:

I. I am the plaintiff [or, one of the plaintiffs] in this action [who constitute the firm of B. & C., of this city.]

II. [If certificate of no property or indebtedness has been given, show facts tending to show falsity, as:] On the day of 19 , in company with A. T., my attorney in this action, I called on H. F. [who has been examined herein], at his office, No.

street, in the city of

when the following conversation was had between him and me, in reference to his refusal to accept a draft for $ ant B., to the order of my said

tifying in good faith that he holds no goods of the defendant. Bank of Mut. Redemp. v. Sturgis, 9 Bosw. 660.

68 It must appear that the third person has furnished no certificate, or that the certificate given was incomplete or false. Donner v. Mercy, 81 App. Div. 181, 80 N. Y. Supp. 1030.

Sustained in an unreported case (N. Y., 1877) as sufficient grounds alike for an order to answer or to punish for contempt.

The falsity of the certificate must be satisfactorily established. Hong Kong, etc., Co. v. Campbell, 13 N. Y. Supp. 122. 35 St. Rep. 637.

An application for examination on the ground that no certificate had

drawn on him by the defendfirm, viz.: After a statement by

been given, not sustained, where a certificate had been given, which was objected to as defective. Gray v. Solis, 2 Monthly L. Bul. 12.

In Stine v. Greene, 65 App. Div. 221, 72 N. Y. Supp. 729, an affidavit was presented upon the application for the order which alleged on information and belief that the third person held property of the defendant. Held, that the court would consider this allegation, when not met by a denial. Since no certificate had been furnished by the third person, such an allegation does not seem, however, to have been essential. Donner v. Mercy, supra.

said H. F., to the effect that he had shipped goods to the defendant on joint account, for which defendant had not accounted, I asked him: "Do I understand that you claim your shipments there as liens against these here?" To which he answered: "No. The facts are, I have made two shipments to Mr. B., for which I have not yet received account sales. I have received from him these two consignments of champagne and goat-skins, which I have not yet been able to sell, owing to the condition of the market, and until they are sold I have not, therefore, any funds of Mr. B. in my hands to pay it with."

[If application is made ex parte, state condition of cause; and as to previous application, see Form 817 supra.]

[Jurat.]

[Signature.]

[Add sheriff's certificate, or affidavit of deputy, of demand for certificate, and that no certificate has been given, or showing character of certificate which was furnished.]

FORM No. 858.

69

Order to appear and be examined as to property of debtor under attachment.79 [Name of] Court [or, if a court order] At a Special Term [etc., as in Form No. 820, p. 1174].

71

It appearing to me [or, to this court] by the affidavit of M. N. [or, by the certificate of M. N., sheriff of the county of ], and the papers therein referred to as on file herein,7 that the sheriff of the county of [or, said sheriff], with a warrant of attachment against the property of Y. Z., the de

69 An allegation by the deputy that he" duly effected service of said warrant upon A. B., at -," is a sufficient allegation of service. Donner v. Mercy, supra.

A statement that the third person did not give a certificate showing that he held no property belonging to or for the benefit of the defendant, is wholly insufficient to show that no certificate was given. Id.

The moving papers do not have to show either service of the warrant of attachment or a levy thereunder. Id.

70 By N. Y. Code Civ. Pro., § 651, application for the order must be made to the court in which the action is brought, or to a judge thereof, or to" the county judge of the county to

The

which the warrant is issued." application being ex parte, can, if in the Supreme Court, be made, it seems, to the court or a judge thereof in any part of the state. Compare this section with Vol. I, pp. 99. 100. But this section allows application only to the county judge of the county to which the warrant is issued.

A second order will only be granted for cause shown, such as after-acquired property. Guinan v. Allen, 40 App. Div. 137, 57 N. Y. Supp. 614, 29 Civ. Pro. Rep. 277.

As to the remedy by action, see Scott v. Morgan, 94 N. Y. 508.

71 Such papers may be considered. Matter of Crary, 9 Civ. Pro. Rep. 168.