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FORM No. 896.

Affidavit to obtain order to show cause why attachment should not be

[Title of court and action.]

[Venue.]

vacated.61

T. Z., being duly sworn, says:

I. That he is the attorney for the defendant herein;

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II. That a warrant of attachment against the property of said defendant was issued herein on and about the 19, under which the sheriff of the county of possession of property of the said defendant; that said sheriff is now in possession thereunder. [Show inconvenience resulting to defendant, if any, from seizure of property.]

III. That the defendant desires to make a motion to vacate said warrant on the papers on which the same is granted, and that too much delay and expense will be occasioned if a notice of motion be given. Therefore, deponent applies for an order to show cause, returnable the

of

19

.

IV. [State condition of cause, whether at issue, and if not yet tried the time appointed for holding the next term where the action is triable.]62

V. No previous application for such order to show cause has been made to any court or judge [except, etc. See Form 817]. [Jurat.]

FORM No. 897:

[Signature.]

Order to show cause on original papers, or fresh papers, or both, why attachment should not be vacated or modified,63 or security increased.64

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writing, stating the facts on which the claim is founded.

A motion to vacate will not lie on the ground that the property levied on is not subject to attachment. Herman v. Bailey, 25 Misc. 94, 45 N. Y. Supp. 88.

61 See paragraph 1, p. 1242, supra. 62 Required by Gen. Rule 37. An omission to comply with the rule will require the denial of the motion if objection is properly raised. Cole v.

Smith, 84 App. Div. 500, 82 N. Y.
Supp. 982; Sanger v. Connor, 95 App.
Div. 521, 88 N. Y. Supp. 1054.

63 The application may be for all or any of these forms of relief. Code Civ. Pro., § 682.

As to motion to reduce the amount of the attachment, see Trubee v. Alden, 6 Hun, 75; Sulzbocher v. Cawthra & Co., 14 Misc. 545, 36 N. Y. Supp. 8, aff'd, 148 N. Y. 755.

64 See pp. 1242, 1243, as to policy of

a

[if motion is on fresh papers, add the affidavit of copy of which is hereto annexed-and, may add, the answer65 already served herein], and on motion of T. Z., attorney for defendant [if appearing specially say - appearing for the purposes of this motion onlyor, attorney for M. N., naming third person who moves];

ORDERED, that plaintiff show cause before me at

before this court at a Special Term thereof, to be held at

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day of

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19 at

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on the in the noon, or as soon thereafter as counsel can be heard, why an order should not be granted vacating the said warrant of attachment [or, modifying said warrant of attachment stating in what particulars -or, requiring an increase of the security given by the plaintiff or for one or more of these forms of relief, together, or in the alternative], and awarding such other or further relief as may be just67 [and if motion is, in any part, on the ground of irregularity, add], such relief being also asked upon the following grounds, among others, in that [here designate particulars complained of see following Forms, 899 to 909], with costs of this motion.

.69

68

[If stay is granted, add,] And in the meantime and until the

applying ex parte, or on motion, and whether to the court or the judge.

65 The statute of limitations is not available, unless interposed by answer. Plimpton v. Bigelow, 12 Abb. N. C. 202, 29 Hun, 362; rev'd on other grounds, in 93 N. Y. 592.

66 The amount of security is discretionary. Riggs v. Cleveland, etc., R. R. Co., 21 Wkly. Dig. 45.

67 If the order stops here, a vacatur may be granted for substantial grounds on the papers, but not for irregularity. If irregularities are specified, but this previous clause omitted, the motion may, perhaps, be confined to the specified grounds. Therefore, it is well, in case of irregularity, to ask the vacatur generally and to add that such relief will also be asked upon specified grounds.

68 If the motion is made on the ground that there was no basis for granting the warrant, this is not an irregularity within Gen. Rule 37, and need not be specified. Andrews v. Schofield, 27 App. Div. 90, 50 N. Y. Supp. 132, 5 Anno. Cas. 311. Substantial insufficiency of the affidavits is not an irregularity. Martin v.

Aluminum, etc., Co., 44 App. Div. 412, 60 N. Y. Supp. 1010; Norden v. Duke, 106 App. Div. 514, 94 N. Y. Supp. 878.

Failure to deliver certified copy of warrant, when required, is a substantial defect, and need not be specified as an irregularity. Weil v. Gallum, 75 App. Div. 439, 78 N. Y. Supp. 300. Error in recital of the cause of action, in the warrant, a mere irregularity. Rallings v. McDonald, 76 App. Div. 112, 78 N. Y. Supp. 1040. Or, of the ground of the attachment. Ennis t. Untermeyer, 93 App. Div. 375, 87 N. Y. Supp. 695.

69 Van Wickle v. Weaver Coal, etc., Co., 88 App. Div. 603, 85 N. Y. Supp. 82; Kloh . N. Y. Fertilizer Co., 86 Hun, 266, 33 N. Y. Supp. 343; Weehawken Wharf Co. v. Knickerbocker Coal Co., 24 Misc. 683, 53 N. Y. Supp. 982; First Nat. Bank, v. Bushwick Chem. Works, 17 Civ. Pro. 229, aff'd, 119 N. Y. 645.

Volume I, p. 122; Stevens v. Middleton, 14 Wkly. Dig. 126. The report of s. c., in 26 Hun, 470, omits reference to this point.

entry of the order upon the determination of this motion, let all proceedings on the part of the plaintiff, his attorney and the sheriff, his deputies and agents, be stayed; except to protect the levy heretofore made.

Service of a copy of this order on ficient.

19 shall be suf

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[Authentication as in Form 818 of this volume.]

[For special appearance where defendant moves and does not ap pear generally, see Volume I, p. 739, Form 442.]

FORM No. 898.

Notice of motion on the original papers, or fresh papers, or both, to vacate or modify the warrant, or to increase the security, or both,70

[Title of court and action.]

Please take notice, that upon the warrant of attachment granted herein on the 19 and the papers upon

day of

which it was granted [and the affidavit of " a copy of which is hereto annexed- and the answer already served herein], the undersigned will move the court, at a Special Term to be held [or if warrant was granted by judge out of court, may say, will move the Hon. J. K.] at the County Court House [or, city hall] in the city of

at

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on the

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19 noon, or as soon thereafter as counsel can be heard, for an order vacating the said warrant of attachment [or, modifying said warrant of attachment — stating in what particulars—or, requiring an increase of the security given by the plaintiff-or for one or more of these forms of relief, together, or in the alternative], and awarding such other or further relief as may be just [and if motion is, in any part, on the ground of irregularity, add], such relief being also asked upon the following grounds, among others, in that [here designate particulars complained of; see following Forms, 899 to 909, with costs of this motion.

[Date.]

[Address] To

[Signature and office address of]

Plaintiff's attorney.

Attorney for

[For special appearance, see Volume I, p. 739, Form 442. In cases where that is used, the above signature should be qualified, thus: Attorney for Y. Z., for purposes of this motion only.]

70 See notes to last Form.

STATEMENT OF GROUNDS OF MOTION TO VACATE ATTACHMENT SUITABLE TO BE INSERTED IN PRECEDING FORMS OF ORDER TO SHOW CAUSE OR NOTICE.71

FORM No. 899.

Defect of affidavit.

That the paper purporting to be an affidavit of A. B. is defective in form in that [it has no venue]."

72

FORM No. 900.

Defect of warrant.

That said warrant does not [contain a proper recital of the ground of such attachment, nor of any ground justifying an attachment].

FORM No. 901.
Defect of security.73

That said warrant is not supported by any undertaking [or, that the undertaking given herein, is insufficient in amount or, not acknowledged by the signers thereof or the like].

FORM No. 902.

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Variance as to cause of action.

That said warrant was issued upon an alleged cause of action different from that on which said action was brought, as appears by the complaint.

FORM No. 903.
Counter-claims.

That said affidavits do not show that the plaintiff is entitled to recover the sum claimed over and above all counter-claims known to the plaintiff.

FORM No. 904.

Disregard of rule No. 25.74

That, although previous application had been made for such attachment, the fact was not disclosed in said affidavit.

FORM No. 905.

Allegations on information.75

That said affidavits on which said warrant was granted are fatally defective, in that the material averments thereof are either

71 See notes to Form 897.

72 See volume I, p. 13, note 46. 73 See as to general requisites of undertakings, Vol. I, Chapter I, Article XXV, p. 448, on that subject.

74 See volume I, p. 116.

75 See paragraph 9, p. 1183, of this volume. This may not be a mere irregularity, but a substantial defect. See notes to Form 897.

upon information claimed to have been received by the affiants without averring sufficient reason why the persons giving such information did not themselves make affidavits in respect thereof, or because it is not stated in said affidavits that the affiants believed such information to be true, or because certain of the averments are upon information and belief without stating the source of such information, or are mere conclusions, or are secondary evidence.

FORM No. 906.

Defect of service of summons.76

That there has been a failure to serve the defendant either personally, within or without this State, or by commencing publication within [thirty] days after the issuing of said warrant."

FORM No. 907.

The same.

That the alleged order for service by publication was not founded upon a complaint duly verified, showing a sufficient cause of action against the defendant.

FORM No. 908.

The same.

That there was no proof by affidavit presented to the judge who granted said alleged order for service by publication of the additional facts required to justify the granting thereof.

FORM No. 909.

Omission to serve.

That no copy of the affidavit on which the attachment was issued was delivered to the person from whose possession the attached property was taken.

FORM No. 910.

Affidavit for subsequent attaching creditor's motion to vacate attachment.78 [Title of court and action.]

[Venue.]

H. P. M., being duly sworn, says, that he is a deputy sheriff79 in the office of the sheriff of the county of

76 See, generally, Chapter V, Article IV, of Vol. I.

77 The substituted service may be made by service without the state. Code Civ. Pro., § 638; United Verde Copper Co. v. Tritle, 20 Abb. N. C. 57.

78 See p. 1245 of this volume, paragraph 6. Move on the papers upon which both attachments were granted, as well as this affidavit.

79 The affidavit, if by the attorney, may be supported by the return of the

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