of

I. That on or about the 19 , in the above entitled action, a warrant of attachment was duly issued to the said sheriff whereupon the said sheriff, acting by deponent, his said deputy, duly deputized and authorized in that behalf, duly levied the same on or about the date aforesaid, upon certain personal property of said defendant [describing it].

Court of

day of

19 in an acbrought to recover

II. That on or about the tion in the dollars, or thereabouts, in which G. F. H. was plaintiff and the above-named Y. Z. was defendant, a warrant of attachment, a copy of which is hereto annexed, marked Exhibit D., was duly issued to the said sheriff, whereupon the said sheriff, acting by deponent, his said deputy, duly authorized in that behalf, on or about the last-named date, and subsequently to the aforesaid previous levy, levied the same upon the same property of said defendant.80

III. That at the time of the first levy as aforesaid the said property was taken into the custody of said sheriff, since which time it has continued to be in his custody and possession.

IV. [If deponent has the necessary knowledge, add allegation of the service of the summons within the thirty days in the action in which the junior attachment issued; otherwise annex attorney's affidavit showing the fact.81]

V. [If application is ex parte, state as to previous application; see Form 817. If an order to show cause is asked, state as to

sheriff and certificate that the property is the same. Where the affidavit made by the attorney, averred that the sheriff levied upon property under the attachment without disclosing the attorney's means of knowledge, or the time when or the property upon which the pretended levy was made - held insufficient proof of such a lien as would give the moving party a right to vacate. Hodgman v. Barker, 128 N. Y. 601; Tim v. Smith, 93 N. Y. 87, aff'g 65 How. Pr. 199, 13 Abb. N. C. 31; Davis v. Brooks, 14 Wkly. Dig. 454 (statement of acquisition of lien, on information and belief).

So also of an affidavit made by the managing clerk of the junior creditors' attorney, on information and belief, and stating that the deputy sheriff who made the subsequent levy

admitted the making of such levy, but was unwilling to make an affidavit, and no positive refusal was alleged and no fact stated by the deputy sheriff in making the alleged admission was put before the court. Knudson v. Matuska Furn. Co., 1 How. Pr. (N. S.) 152, 7 Civ. Pro. Rep. (Browne) 86. Irregularity cannot be relied on as the ground of the motion. Van Camp v. Searle, 147 N. Y. 150, 2 Anno. Cas. 351.

80 A valid levy upon the same property must be shown. Sill Stove Works v. Scott, 62 App. Div. 566, 71 N. Y. Supp. 181; Burtis v. Dickinson, 81 Hun, 343, 30 N. Y. Supp. 886.

81 Cremens v. Eastlake Woolen Co., 7 App. Div. 609, 41 N. Y. Supp. 202; Ladenburg v. Com. Bank, 2 App. Div. 477, 37 N. Y. Supp. 1085.

previous application, and also the condition of the cause and the necessity for an order to show cause, as in Form 816].

[Jurat.]

FORM No. 911.

[Signature.]

Affidavit for an assignee's motion to vacate attachment.82

[Title of court and action.]

[Venue.]

day of

G. C. H., being duly sworn, says: On the 19 the defendant F. W. duly executed and delivered to me an assignment in writing, whereby he assigned to me all his individual property in trust to take possession of the property and convert it into money, and after paying the expenses of the trust, to pay first the individual indebtedness of said W. to his individual creditors, if sufficient should be realized for that purpose and if not, to apply the property ratably to such payment, and if any surplus remained after paying such individual indebtedness, to apply the same to the payment of the partnership indebtedness of said W. as a member of the firm of G. & W., without any preferences to any of the creditors, either individual or partnership. I thereupon duly accepted and assented to such assignment, and such assent duly appeared in writing in such assignment; the said assignment was on said duly subscribed and acknowledged by said W. and by myself, and recorded in the offices of the county clerk and of the register of county, where said W. resided, and also of county, where said W. carried on his business at the date thereof. I have since acted and am now acting as assignee for the benefit of the creditors of said F. W. under such assignment, and as such have an interest in his property which has been attached in this action, which interest was acquired after said property was so attached, and on , as aforesaid.

[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 and the necessity of an order to show cause, as in Form 816.]

[Jurat.]

82 From Marine Nat. Bank v. Ward, 35 Hun, 395, where an order denying the motion was reversed.

[Signature.]

See p. 1245, paragraph 6 of this volume.

FORM No. 912.

Affidavit on motion to vacate attachment by one claiming under a transfer from defendant subsequent to attachment.83

[Title of court and action.]

[Venue.]

M. N., being duly sworn, says:

day of

19 the above

I. That on or about the named defendant Y. Z. executed and delivered to deponent, for a valuable consideration, a deed of conveyance of the following described premises [description]. And that said deed was duly recorded in the office of the clerk [register] of the county of on the day of 19 in book

of Conveyances.

II. That on the day of

› P.

19 a warrant of attachment was granted in this action by Hon. J. K., one of the justices of this court [or, county judge of

county], and notice of attachment was filed in this court against the real property of the above-named defendant Y. Z., and among other property levied upon under said attachment, were the premises above described.

day of

19

dollars, but

[III. That a judgment was entered in said action, as deponent is informed and believes, on the against the said defendant for the sum of that no part of the said attached property has been applied to the payment of the judgment recovered in said action, and said judgment remains unpaid [state source of information], and said attachment remains in force, and is claimed by plaintiff to be a lien on said premises.]

IV. That at the time of the execution and delivery cf said deed of conveyance to deponent, said attachment had been levied upon said pieces and parcels of land, but deponent had no knowledge of the fact.

V. That said conveyance was before any judgment had been entered in the above action.

83 Adapted from the case of Trow's Printing, etc., Co. v. Hart, 85 N. Y. 500, where the affidavit was sustained.

See p. 1245, paragraph 6 of this volume.

VI. That deponent is the sole owner of said premises, and has been since the said day of

[If there has been delay in moving, add excuse, as thus:]

VII. That the reason why the motion was not made sooner is that the defendant Y. Z. told deponent from time to time since he learned said property had been levied upon, that the plaintiff had agreed to lease it from said attachment and would do so, and deponent believed that it would be done, without obliging him to resort to a motion to have it done.

VIII. That a notice of the said attachment, for the sum of dollars, with a description of said premises, was on the last, filed in the office of the clerk of the

day of

county of

[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 and the necessity for an order to show cause, as in Form 816.]

[Jurat.]

FORM No. 913.

[Signature.]

Affidavit to vacate attachment on the ground of unexpired credit.84

[Title of court and action.]

[Venue.]

Y. Z., being duly sworn, says:

I. I am the person named as defendant herein, and reside at

city, where on

last

II. I formerly carried on business as a manufacturer of shoes at No. I had a large quantity of property.

street,

III. On that day I made a general assignment for the benefit of my creditors, without preferences, and delivered that property to my assignee, and left it in his possession.

IV. I am informed and believe that on of the county of

the sheriff

seized that property under the warrant

84 From an unreported case. Plaintiff may meet this by showing fraud. See p. 1243.

Such an affidavit as this is of doubt

ful efficacy in New York. The court will not consider the merits of the action upon a motion to vacate. See p. 124ỏ, supra, par. 7.

of attachment issued herein, and has held possession of it ever since.

V. I am informed and believe that this action is brought to recover the sum of dollars upon my alleged breach of contract to pay the purchase price of merchandise sold and delivered by plaintiffs as partners under the firm name of F. B. & Co., to me on and between in the present

year.

and

VI. The last mentioned sum is the aggregate very nearly of invoices of merchandise bought by me of F. B. & Co., on and between the date last mentioned, each on a credit of months from the date of invoice; and at the date the warrant of attachment issued in this action, the credit upon only four of such invoices, and to the sum of dollars, had expired, and the credit on of such invoices, aggregating dollars, had not expired.

VII. The following schedule is a correct statement of the invoices bought by me upon credit as aforesaid, and shows truly the date when each was bought, the amount of each and the date when each was and is payable. It is compiled from my books and from the bills rendered me by the plaintiffs. [Add schedule.]

VIII. The last eight of such invoices, amounting in the aggregate to dollars, are not yet due. I annex to this affidavit the original invoices and statement received from the plaintiffs by me, marked respectively A, B, C and D, showing the terms of credit to have been months on each of the last aforesaid invoices.

IX. I am advised and believe that as to

dollars of the

claim herein there had been no breach of contract when this action was commenced, and that as to

been no breach yet.

dollars thereof there has

X. The summons in this action has not been personally served upon me within the State of New York, and I have not appeared in this action. I appear now for the sole and special purpose only of moving to vacate [reduce] the attachment herein, and not otherwise.

[If order to show cause is asked, state as to previous application, and the necessity of the order, as in Form 816].

[Jurat.]

[Signature.]