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previous application, and also the condition of the cause, as in

Form 816.] [Jurat.]

FORM No. 886.

[Signature.]

Undertaking by defendant to obtain release of foreign vessel after attachment has been vacated, but plaintiff's undertaking has not been discharged.11 [As in Form 881, to the asterisk, continuing:] and whereas said attachment has been vacated [or, has been discharged as to said share or interest in said vessel - and if vessel has been sold, recite the fact and amount of proceeds in hands of sheriff or in court:] Now, THEREFORE, I [or, we name, residence, and vocation of claimant, or agent, or surety or sureties], do hereby [jointly and severally] undertake to and with the plaintiff and pursuant to the statute that I [or, we] will indemnify A. B., the plaintiff, against all charges and expenses in consequence of the undertaking given by him herein on or about the prevent the release of said vessel. [Date.]

day of

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to

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[Signatures.]

[Acknowledgment on proof, as in Form 822; Affidavits of sufficiency as in Form 823; Approval as in Form 824; Justification, if required, as in Vol. I, Chap. I, Art. XXV on UNDERTAKINGS.]

FORM No. 887.

Order for sale of foreign vessel attached where plaintiff's undertaking has not been discharged nor he indemnified.12

[Caption and recitals, according to the case; see Form 819 or 820, supra.]

ORDERED, that said [one-half interest or share in said] vessel be sold by the sheriff [ere may give special directions as to time and notice], and that the proceeds of the sale, after deducting lawful fees and expenses, be paid by said sheriff to [names of persons who executed the undertaking on part of plaintiff], for their indemnity. [Authentication as in Form 818.]

FORM No. 888.

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

[May be easily framed by reference to Form 884, and N. Y. Code Civ. Pro., § 673.]

11 See N. Y. Code Civ. Pro., § 670. 12 This order is made by the court or judge. N. Y. Code Civ. Pro., § 671. This affidavit may readily be adapted

from previous Forms. See Form 885. The application may be either to the court or the judge.

V. SALE, AND PROCEEDS OF SALES AND COLLECTIONS.

FORM No. 889.

Affidavit to obtain sale of foreign or domestic vessel attached and not duly claimed by any third person.13

of

[As in next Form, to the *, continuing:] the [name of vessel], [or, the one-half share or interest of the defendant

Y. Z., in the

name of vessel — of

].

II. That no claim to said vessel has been made upon the plaintiff, nor any upon the sheriff, as deponent is informed by at the office of the sheriff, upon inquiry there this day made by deponent, nor any upon the keeper in charge of said vessel, as appears by the affidavit of said keeper, hereto annexed.

[Or, if a domestic vessel, may admit claim, and show that a proper undertaking has not been given by the claimant.]

III. That a sale of said vessel without further delay is necessary, by reason of the following facts [stating particulars].

IV. State whether defendant has appeared, etc.]

[If application is ex parte, state as to previous application; see Form 817. If an order to show cause is asked, state as to previous application, and also the condition of the cause, as in Form 816.] [Jurat.] [Signature.]

FORM No. 890.

Affidavit to obtain order to sell property which is perishable or expensive to

[Title of court and action.]

keep.14

[Venue.]

A. B., being duly sworn, says:

I. That he is the plaintiff herein [or otherwise state his relation to the cause].

II. That on

19 a warrant of attachmert was

granted against the property of the defendant above named, issued to the sheriff of the county of who thereupon, and on the day of 19 attached [a stock of groceries, including a wagon, one horse and harness].

13 N. Y. Code Civ. Pro., §§ 672, 673. 14 Code Civ. Pro., § 656.

This and two following Forms are sustained by Byrnes r. Robinson, 19

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Wkly. Dig. 454, where it was held that this order may be made without first making an inventory; and that notice to the sheriff is not necessary.

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III. That the following articles among those attached are perishable and will rapidly decay15 and spoil, and must be sold, if at all, within [a few days - stating particulars].

IV. That it is expensive to keep said [horse];16 its value is dollars, and the cost of keeping it is about

about

dollars per week.

[If application is ex parte, state as to previous application. See Form 817. If an order to show cause is asked, state as to previous application, and also the condition of the cause, as in Form 816.] [Jurat.] [Signature.]

FORM No. 891.

Notice of motion or order to show cause why property that is perishable or expensive to keep should not be sold.17

[As in Form 815, or 818, of this volume, substituting for the italic clause between the* and the †:] for an order that the sheriff sell [or, why the sheriff should not sell] at public auction the levied on by him under the warrant of attachment issued herein on the day of

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19 .

FORM No. 892.

Order for sale of property that is perishable or expensive to keep.18 [Name of] Court [or, if court order]

[Title of action.]

day of

19

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

It appearing to me [or, to this court] by the affidavit of A. B., verified the [and the inventory returned to the warrant of attachment heretofore issued herein], that part of the property seized by the sheriff of the county of under said warrant, to wit [ten barrels of apples], is

15 It must appear that the property is inherently liable to deterioration and decay, and it is not sufficient to show that it will depreciate in value because of changes in the styles and fashions. Fisk v. Spring, 25 Hun, 367, 62 How. Pr. 510, 1 Civ. Pro. Rep. 378, with note in latter; Contra, Schuman v. Davis, 13 N. Y. Supp. 575, 26 Abb. N. C. 125, 19 Civ. Pro. Rep. 348. See also Davis v. Ainsworth, 14 How. Pr. 346 (where potatoes were ordered to be sold).

16 A horse may be directed to be sold as perishable property. Zimmer

man v. Fischer, 13 N. Y. Civ. Pro. Rep. 224.

17 This order may be made either upon or without notice, as the urgency of the case requires, in the opinion of the court or judge, except in case the property to be sold consists of live animals, when "such notice shall be given to the parties to the action of the application for the order as the court or judge prescribes." N. Y. Code Civ. Pro., § 656.

18 This order may be made by the court or judge. N. Y. Code Civ Pro., § 656.

perishable; and that [the horses] are expensive to keep; and that due notice has been given of this motion to the [adverse party] pursuant to the direction of the court; and after hearing of counsel for the [moving party], and pearing] for

[or, no one ap

in opposition; and on motion of

attorney for [moving party]:

ORDERED, that said

auction, at

be sold by said sheriff, at public

[mentioning place], after

days [such time as may be reasonable under the circumstances] previous notice of the time and place of such sale being given by him in writing, posted in three or more public places in

tising the same

and by adverdays successively19 immediately previous to newspaper printed at

and on the day of sale, in the

[and by service of notice of sale on the attorneys for the plaintiff days before the sale].

and the defendant

Leave is hereby given the plaintiff to become the purchaser at such sale, if he so desires.]

[Authentication as in Form 818 of this volume.]

FORM No. 893.

Order that sheriff pay into court proceeds made on attachment.20 [Caption and recitals, see Form No. 820, supra.]

ORDERED, that the sum of

dollars, proceeds of the demands collected [or, of the property sold or both] under the attachment herein, be by the sheriff forthwith [or, within days after service of a copy of this order] paid into court [or, deposited in the Trust Company-or, Bank of

to be drawn out only upon the order of the court].

Enter: [signature of judge by initials of name and title.]

FORM No. 894.

Order that sheriff pay over to defendant or his assignee surplus proceeds.21 [Caption and recitals, according to the case; see Forms No. 819 and 820 of this volume.]

ORDERED, that M. N., the sheriff of the county of

pay to the defendant Y. Z. [or, to O. P., the assignee of the defendant

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Y. Z.] the sum of dollars, being a surplus remaining in his hands arising from the proceeds of the sale of the property attached herein [or, arising from moneys or demands collected by him or both] over and above such sum as will be required to pay the plaintiff's demand with the costs and expenses of this action [and of all other warrants of attachment or executions now in his hands chargeable upon said fund.]

And it is further ordered, that the property of the defendant not sold [describing it] be and the same is hereby released from the said attachment [or, attachments], and the said sheriff is hereby ordered to deliver the same to said

[Authentication as in Form 818, of this volume.]

SECTION III.

VACATING OR DISCHARGING ATTACHMENT.

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(895) Notice to sheriff that prop

erty levied on is exempt.

(896) Affidavit to obtain order to
show cause why attachment
should not be vacated on
the original papers.
(897) Order to show cause on origi-
nal papers, or fresh papers,
or both, why attachment
should not be vacated or
modified, or security in-
creased.

(898) Notice of motion on the origi-
nal papers, or fresh papers,
or both, to vacate or modify
the warrant, or to increase
the security, or both.

(899-909) Statements of grounds of motion to vacate attachment suitable to be inserted in preceding Forms of order to show cause or notice.

(910) Affidavit for subsequent at-
taching creditor's motion to
vacate attachment.
(911) Affidavit for an assignee's mo-
tion to vacate attachment.

(912) Affidavit on motion to vacate
attachment by one claiming
under a transfer from de-
fendant subsequent to at-
tachment.

(913) Affidavit to vacate attachment
on the ground of unexpired
credit.

(914) Order vacating attachment.
(915) Notice of motion to discharge
attachment, as to all or
part of the property, on
giving security.

(916) Undertaking to obtain dis-
charge of property attached.
Order discharging attached
property on security being
given.

(917)

(918) Affidavit to move to discharge attachment as to interest of

a copartner in leviable
property.

(919) Undertaking on application
to discharge interest in
partnership goods and chat-
tels from attachment.
(920) Affidavit to move to discharge
attachment as to non-levi-
able property belonging to
defendant and his copartner.
(921) Affidavit in corroboration by
the fund holder.

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