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residence of signer, as in other cases], and C. D., of No. street, in the town of
, and county of in the State of New York (merchant), do hereby jointly and severally undertake to and with said [owner or master], pursuant to the statute, in the sum of dollars, to pay to the said [owner or master] all the expenses, damages and charges which may be incurred by him, or to which he may be subjected, for unlading the goods from the vessel, and for all necessary detention of the vessel for that purpose. [Date.]
[Signatures.] [Acknowledgment as in Form 822; Affidavits of sufficiency, as in
Form 823; Approval83 as to form, amount and sufficiency of sureties, as in Form 824.]
IV. INTERVENTION OF THIRD PERSON CLAIMING THE PROPERTY.
A. PROPERTY OTHER THAN VESSELS, ETC.
FORM No. 867. Affidavit of third person's claim to property levied on.84 (Title of court and cause, if known.] [Venue.]
M. N., being duly sworn, says that he resides at the county of .
That deponent makes claim to the following property attached by the sheriff of the county of , under an attachment issued against the property of one Y. Z., to wit [describe briefly].85 That deponent makes claim thereto as his property.
That said property is of the value of dollars, and that deponent will suffer damages in the sum of at least dollars, over and above said value, in case the said levy is not re leased.
83 Approval must be by a judge of the court or the county judge of the county wherein the vessel is situated, or in New York city, by a justice of the Supreme Court. N. Y. Code Civ. Pro., $ 652.
84 N. Y. Code Civ. Pro., $ 657, as amended in 1904. The affidavit is to be delivered to the sheriff, while the property (or its proceeds) remains
in the sheriff's possession. For the affidavit in case of a vessel, see Form No. 877. For the effect of a statute requiring an affidavit, etc., see Tyler v. Hanscom, 28 Minn. 1; Tuttle v. Wheaton, 57 Iowa, 304, 10 N. W. Rep. 748.
85 The claim may relate to intangible property. Minor v. Gurley, 81 App. Div. 586, 81 N. Y. Supp. 367.
FORM No. 868. Notice by sheriff to plaintiff of claim to attached property (other than a
vessel), and of calling jury to try such claim.86 [Title of court and action.]
Take notice, that M. N. makes claim to the property levied 87 on by me under the attachment issued out of the
Court against the property of Y. Z. in the above entitled action, and that I shall proceed to try the claim of the said M. N. before a jury to be summoned by me for that purpose at , on the day of , 19 .
Sheriff of county. [Address to claimant, and attorneys for plaintiff and defend
the county of" and attend to being laid asia.
FORM No. 869. Subpæna to witnesses before sheriff's jury.88 The People of the State of [New York],89 to [naming witnesses),
greeting: We command you, that all business and excuses being laid aside, you [and each of you] appear and attend before the undersigned, sheriff of the county of , at his office * in the County Court House [or, City Hall), in , in the said county, on the day of
,19 , at o'clock in the noon, to testify and give evidence on the part of M. Y., on the trial of the validity of a claim interposed by M. N., of title to [or, of the right of possession of] certain goods or effects seized by said sheriff as the property of Y. Z. by virtue of a warrant of attachment, in an action in the
Court, be tween A. B., and Y. 2. [or, if the subpoena is addressed to a party, say, between you and — name of adverse party). † And for a failure to obey, you will be deemed guilty of a contempt of court, and liable to pay all loss and damages sustained thereby to the person aggrieved, and forfeit fifty dollars in addition thereto."
on, to test day of City Halll ., at hiefore the easide,
86 This, and Forms Nos. 870_873, are from Crocker on Sheriffs, 562, etc.
87 The sheriff has no right to impanel a jury to try the validity of a claim, except where the goods or effects have been levied upon. N. Y. Code Civ. Pro., $ 657; Halben v. Reilly, 9 Daly, 271. This section ap.
plies to a debt which has been levied upon. Minor v. Gurley, 81 App. Div. 586, 81 N. Y. Supp. 367.
88 To be issued by the sheriff on application of either party to the trial. N. Y. Code Civ. Pro., § 108.
89 1d., $ 22.
WITNESS, Hon. [here name any justiceøl of the Supreme Court if the action is in that court, adding], justice of our said court (or if in the City Court of N. Y., or a County Court, name any judge thereof, adding, judge of our said court], at , the day of , 19.92
[Signature of], Sheriff of the county of
33 cenu. [Signature and office address of],
Attorney for (party subpoenaing the witness].
FORM No. 870.
Subpæna duces tecum. [As in last Form, inserting at the 1:] And you are hereby required to bring with you, and then and there produce [here describe the book or paper.]
FORM No. 871.
Subpena ticket. By virtue of a writ of subpæna, to you directed, and herewith shown to you, you are commanded, that all business and excuses laid aside, you appear and attend before
, the sheriff of the county of , at his office [continue as in Form 869 from the * (with the addition contained in Form 870, if inserted), and stopping with the word “ thereto," before the teste].
By the Sheriff. [Date.]
[Name and office address of],
Attorney for (party subpoenaing]. [Address to witness.]
FORM No. 872. Oath of jurors on claim to property levied on. You and each of you do swear that you will well and truly try the claim of M. N. to the property levied on by the sheriff of county, under the attachment in favor of A. B. against Y. Z., and true inquisition make according to the evidence, so help vou God.
91 Id., $ 22.
93 Id., § 108, subd. 2; id., $ 854. Omission of seal is not fatal (id., $$ 23, 24) in a court of the State.
FORM No. 873. Oath of witness on claim to property levied on. You do swear that the evidence you shall give to the jury, touching the claim of M. N., to the property levied on by the sheriff of
county, under the attachment in favor of A. B. against Y. Z., shall be the truth, the whole truth, and nothing - but the truth, so help you God.
FORM No. 874. Inquisition of jury upon claim to property levied on. [Title of court and action.]
The undersigned, being a jury summoned and sworn by the sheriff of the county of , to try the claim of M. N., to the property levied on by the said sheriff under the attachment herein in favor of A. B. against Y. Z., to wit [specifying the property], do upon our oaths say that the title to the said property was [or, was not] in the said M. N. at the time of said levy.
[If the finding is for the claimant continue: That the value of such property is dollars, and the damages which said M. N. will suffer if the levy is not released, in addition to such value, is
IN TESTIMONY WHEREOF we have hereunto set our hands and seals this day of , 19 .
[Signatures and seals of],
Jurors. FORM No. 875. Undertaking by plaintiff to indemnify sheriff for levying on property other
than a vessel or cargo.95 [Title of court and action.]
WHEREAS, an attachment has been issued in the above entitled action in favor of the above-named plaintiff A. B. against the
94 N. Y. Code Civ. Pro., 8 658, as amended 1904.
95 The liability of the sureties is not limited to the amount specified in the undertaking (Cassani v. Dunn, 44 App. Div. 248, 60 N. Y. Supp. 756); but the claimant's oath to value and damage, as now required, will prac tically limit the liability to such amount.
See, as to vessel, Forms Nos. 881, 883, as to cargo, Form No. 866. It is not essential that plaintiff sign this undertaking, but there must be two sureties. N. Y. Code Civ. Pro., & 658.
The giving of this undertaking within two days after the finding by the jury in favor of claimant, held sufficiently timely. Haas r. Swick, 30 N. Y. Supp. 145, 23 Civ. Pro, Rep. 397.
street in the city
property of the above-named defendant Y. Z., under which M. V., sheriff of the county of has attached and taken into his custody certain goods and chattels [specifying them];
And whereas 0. P., of , claims the same, and a jury has, by its inquisition, found the said property in said claimant, and has found the valuue of said attached property to be dollars, and the damage which said claimant will suffer if the lery is not released at the sum of dollars. Now, THEREFORE, we, C. D., of No. street in the city of , and county of
State of , and E. F., of No.
street, in the town of county of , and State aforesaid, do hereby jointly and severally undertake, pursuant to the statute, * to indemnify the said sheriff for the detention thereof to an amount not exceeding
dollars, 90 against all damages, costs and expenses in any action to be brought against him by any person [by the said claimant, his assignee or other representative]" by reason of the levy upon, detention or sale of any of the afosesaid goods or effects by virtue of the said attachment. 98 [Date.]
[Signature.] [Acknowledgment, as in Form 822; Affidavits of sufficiency, as
in Form 823; Approval, Form 824; Justification, as required in the Code Provision ($ 658).]
State aforesaireet, in the town. State of
FORM No. 876. Undertaking on behalf of claimant to secure possession of attached property.99
[Recitals, etc., as in previous Form to *, continuing:] that in an action to be brought upon this undertaking, the said [claimant] will establish that he was the owner of said attached property at the time of the levy thereon, and that in case of his failure to do so he will pay to the said sheriff the full value of the
sheriff has power to require a bond before levying on property which is not in possession of the debtor, but in that of a third person. Chamberlain v. Beller, 18 N. Y. 115. See Form
96 The amount must be not less than twice the value of the attached property, as found by the jury, and $250 in addition thereto.
97 This clause in brackets follows the provision “ brought against him by any person,” in the section as now existing (1906); the limitation to the claimant, or successor in interest, is all that in reason the indemnity should cover.
98 If such undertaking is given the sheriff must detain the property; the
99 Under $ 658a, as added in 1904. Upon the giving of such an undertaking, and justification of sureties, the court must make an order discharging the attachment (see Form No. 917), and the sheriff must deliver property to claimant.