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fendant in this action, has applied to* O. P. for the purpose of attaching any property of said defendant, held by said O. P. and any debt owing to the defendant by said O. P., and that said O. P. refuses to furnish said sheriff with a certificate designating the amount and description of the property held by said O. P. for the benefit of the defendant72 and the amount of the debt owing by said O. P. to the defendant; [or, has furnished a certificate as to the property so sought to be attached, which there is reason to believe is false or, which fails to set forth fully the facts required to be shown thereby; 73] now, on motion of A. T., attorney for plaintiff,

ORDERED, that O. P., of No.

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street, in the city of appear and attend before one of the justices of this

court at [Special Term, Part II, thereof]-or, before R. F., Esq., of who is hereby appointed referee for the purpose

day of

No.

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19 at

street] in o'clock in

at the office of on the the noon [or at such time as said referee shall name], and submit to an examination under oath concerning the property of the defendant in his possession, and any debt or demand, owing from him to said defendant, which is subject to the attachment herein.75

the

[Personal service of this order on said O. P., on or before day of next, shall be sufficient.] [Authentication as in Form 818, p. 1173 of this volume.]

FORM No. 859.

The same; in the case of an officer of a corporation or association. [As above, substituting for what is betwen the **:] O. P., President of the Bank, situate at for the purpose of attaching the rights or shares which such defendant may have in the stock of said bank, together with the interest and profits thereon; and that the said O. P., president of the said bank, refuses to furnish said sheriff with a certificate designating

72 The order should not be vacated because of the giving of a certificate merely denying defendant's title to goods, or stating that he is not indebted. Am. District Co. v. Distilling, etc., Co., 33 N. Y. Supp. 546, 24 Civ. Pro. Rep. 245.

73 Westervelt v. Marino, 27 App. Div. 267, 50 N. Y. Supp. 632.

74 It must be a place within the

county to which the warrant is issued. N. Y. Code Civ. Pro., § 651.

75 The examination should be limited to such property as is subject to attachment. Stine v. Greene, 65 Apn. Div. 221, 72 N. Y. Supp. 729, 32 Civ. Pro. Rep. 222.

Add directions as to production of books and papers, if desired. See Form No. 860.

the number of shares of the defendant in the stock of said bank, with any dividend or incumbrance thereon [or, the amount and description of any deposit or other property held by said bank for the benefit of said defendant.]

FORM No. 860.

The same Another Form; special directions as to examination, and books and papers.76

[May insert directions as follows:] to submit to an examination under oath concerning the holding or having in their possession or control at the time of the issue and levy of the attachment herein or in the possession or control of any of them, any property of the defendant Y. Z., and concerning the amount, nature and description of the same and of the interest of the defendant therein and for whose benefit the same is held, and their and each of their doings therewith, and all particulars concerning the same, and concerning the truth or falsity of the certificate dated 19 and by them delivered to the sheriff herein; and that said O. P. have and produce then and there all books, accounts, writings, memoranda, whether by said defendant or by themselves, showing any of the matters hereinbefore referred to, and particularly all the books of said defendant Y. Z., which were delivered to said O. P., at or about the day of 19 or since then in any manner referring to or showing the accounts assigned or claimed to be assigned to said O. P., at or about that date.

FORM No. 861.

Certificate of referee to refusal to answer,77

[Title of court and action.]

To the honorable the

Court:

The undersigned, the referee before whom the examination of H. F. was by order of Mr. Justice

day of

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bearing date the 19 directed to proceed, do hereby certify, at the request of the attorney for the plaintiffs, that the an

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76 A subpoena duces tecum cannot be issued to compel the production of books and papers upon the examination. Westervelt v. Marino, 27 App. Div. 267, 50 N. Y. Supp. 632. Nor, after an order has been made appointing a referee to take the examination, can the court make an order for the production of books or papers before

the referee. Guinan v. Allen, 40 App. Div. 137, 57 N. Y. Supp. 614, 29 Civ. Pro. Rep. 277.

77 If desired to punish for contempt, take the referee's affidavit.

The remedy for refusal to deliver, is an action. Hall v. Brooks, 89 N. Y. 33, or supplementary proceedings on the judgment. He cannot be

nexed paper writing, purporting to be minutes of the proceedings before me, under said order, correctly set forth the said proceedings had to this date.

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A. T., being duly sworn, says:

I. I am the attorney for the plaintiffs in this action.

II. I was present and conducted the examination of H. F. in this action, before R. F., Esq., the referee appointed for that purpose by the order of Mr. Justice

day of

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bearing date the

III. I have read the annexed minutes of the proceedings in that examination, and know the contents thereof, and therein are correctly set forth the whole of said proceedings.

day of

IV. The said H. F. did, on the as set forth in said minutes, refuse to answer the questions numbered contained in folios thereof, although then and there directed and required by the said referee to answer the

same.

V. I have read the foregoing affidavit of J. R. R., and know the contents thereof, and said affidavit is true to my own knowledge, so far as it relates to interviews had in my presence with said H. F.

day of

VI. [If an order to show cause is asked, state reason, for instance:] An order to show cause is necessary to permit the examination to be continued on the to which day the examination stands adjourned [and state condition of the cause, and as to previous application; see Form 817, supra.] [Jurat.]

ordered, in this proceeding, to deliver (id.), nor to make a certificate if he has refused to make one. Buckingham v. White, 25 Hun, 441.

The sheriff is not obliged to submit to a mere denial by the person

[Signature.]

examined that he has property of the attachment debtor, or is indebted to him. Am. Distrib. Co. v. Distilling, etc., Co., 24 N. Y. Civ. Pro. Rep. 245, 33 N. Y. Supp. 546.

FORM No. 863.

[For affidavit, order and undertaking, when necessary to sue in name of sheriff in aid of attachment,78 see Volume I, Forms 301, etc.]

FORM No. 864.

Bond to indemnify the sheriff on his levying an attachment79 on property in the possession of a third person.

[For penal clause see Volume I, pp. 32 and 33.]

WHEREAS, in a certain action pending in the

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Court

of wherein the above bounden A. B. [with C. D.] are plaintiffs, said plaintiffs did cause to be issued * under the hand of the Hon. J. K., one of the justices of said court, an attachment against the property of Y. Z., defendant, which attachment has been issued, directed and delivered to the said [name of sheriff], as such sheriff, requiring him to attach and safely keep all the property of the said defendant within his county, or so much thereof as might be necessary to satisfy the plaintiff's demand of dollars, together with interest and costs.

And, whereas, certain personal property, that appears to be long to the said defendant Y. Z., † is claimed by some other person or persons,

Now, THEREFORE, the condition of the above obligation is such, that if the above bounden obligors shall well and truly save, keep and bear harmless, and indemnify the said [name of sheriff], and all and every person and persons aiding and assisting him in the premises, of and from all harm, let trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, attachments, fines, special proceedings and executions, that shall or may at any time arise, come, accrue, or happen to be brought against him, them, or any of them, for or by reason of the 8 levying, attaching and making sale under or by virtue of such attachment, of all or any personal property which he or they shall or may judge to belong to the said debtor, or for or by reason of the levying and making sale of any such or any other personal property, under or by virtue of any execution which may be

78 The custodian of the property cannot be directed by order to deliver the property to the sheriff; the sheriff must sue. Hall v. Brooks, 89 N. Y.

33.

An action will not lie when complete relief can be obtained by levy. Backus v. Kimball, 62 Hun, 122, 16 N. Y. Supp. 619, 27 Abb. N. C. 361.

79 This is the usual form. Compare Form No. 38, p. 35 of Vol. I, and note.

The sheriff has power to require a bond of indemnity before levying on property in possession of a third person asserting title thereto. Chamberlain v. Beller, 18 N. Y. 115.

issued in the said action above mentioned, or for or by reason of entering any ship or vessel, shop, store, building or other premises, for the taking of any such personal property, or for or by reason of the defense of any action or proceeding which may be so brought against him, them, or any of them, then this obligation [etc.; see Vol. I., p. 33].

[Acknowledgment as in Form 822; Affidavits of sufficiency, if required, as in Form 823; Approval, if required, as in Form 824.]

FORM No. 865.

Bord necessary to seize goods in hands of carrier who has issued bills of

lading.80

[Penal clause; see Vol. I, pp. 32, 33.]

Whereas, in an action in the court of

, by A. B. against Y. Z., an attachment has been issued [continue as in next Form, from the * to the ]:

Now, therefore, the condition of this obligation is such that if the said A. B. or the above-bounden obligors shall well and truly save, keep and bear harmless, and indemnify said [owner and master] against the consequences of any bill or bills of lading that said [owner] or [master] may have signed for said goods, or any part thereof, then this obligation [etc.; see Vol. I, p. 33.]

FORM No. 866.

Undertaking necessary to seize goods in the hands of a carrier by water acting in good faith.81

[Title of court and action.]

*

WHEREAS, an attachment has been issued in the above entitled action, and delivered to the sheriff of the [city and] county of against the property of the defendant Y. Z., and the plaintiff has caused, or desires to cause, the same to be levied upon goods of the defendant Y. Z., which have been shipped at within this State, for transportation, without reshipment or transhipment in this State, to a port or place without the State, to wit, upon a vessel, to wit, whereof M. N. is owner [or, master]: t

the

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Now, THEREFORE, A. B., the plaintiff [or, the agent or attorney of the plaintiff] in the said action82 [stating occupation and

80 See Campbell v. Connor, 70 N. Y. 424.

81 See Campbell v. Conner, 70 N. Y. 424, aff'g 41 N. Y. Super. Ct. 459;

N. Y. Code Civ. Pro., §§ 652, 653. Both securities may be required, or one undertaking to the effect of both. 82 N. Y. Code Civ. Pro., § 652.

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