FORM No. 914.

Order vacating attachment.85

[Caption and recitals, according to the case, as in Form 819 or 820 of this volume. For a variety of recitals, often important on these motions, see Volume I, Form 101, p. 259, etc.] ORDERED, that the attachment granted herein on the

day of

19 against the property of the defendant be and the same is hereby vacated with ten dollars costs to the defendant on the ground that [specifying grounds].

[Where plaintiff is allowed to retain attachment on giving further security, may add:] unless within [three] days after the entry and service of this order the plaintiff files and serves a further undertaking in addition to that heretofore given herein, to answer to the defendant in the sum of dollars for all

damages which have resulted or may result from said warrant of attachment and the levy thereof upon defendant's property, the sureties upon said undertaking to justify upon notice if excepted to, and pays $10 costs of this motion.

[Where collections, etc., have been made, may add:] ORDERED, also, that any and all proceeds of sales and moneys by said sheriff collected, and all the property attached remaining in his hands, be delivered and paid by him to the defendant or his agent, and released from the attachment.

[Where stay is ordered on condition, state it, for instance thus:] ORDERED, FURTHER, that pending the hearing and decision of an appeal from this order, all proceedings of the defendants, their servants and agents, with reference to the property

85 The entry of an order vacating the attachment does not annul the warrant (Code Civ. Pro., § 3343, subd. 12), and a stay pending appeal may properly be granted. Norden v. Duke, 47 Misc. 473.

86 See last thirteen Forms; and volume I, p. 229.

An order vacating the warrant, if it does not state the ground, may be sustained on any legal ground appearing in the case. Pomeroy v. Moss, 15 Wkly. Dig. 25.

If the order vacating does not state the ground, it will be presumed in the appellate court that the motion was granted, in the exercise of the discretion which the court has on such ap

plications (unless perhaps it may be that the notice of motion or order to show cause, by specifying only a different ground, might preclude this), and that exercise of discretion includes as a general rule the sufficiency of the proofs. Thorington v. Merrick, 101 N. Y. 5; Bate v. McDowell, 97 N. Y. 646; Tracy v. First Nat. Bank, 37 N. Y. 523.

Nor will the appellate court look into the opinion of the court below to supply such omission in the order. Brooks v. Mexican, etc., Construction Co., 93 N. Y. 647.

87 For other conditions, see volume I, Forms 115, 119.

on which said attachment has been levied, be and the same hereby are stayed, on condition:

First, that the plaintiff forthwith file and serve his notice of said appeal, and place the same upon the calendar of the term of the Appellate Division of this court.

dol

Second, that within [eight] days from the entry hereof the plaintiff file and serve an undertaking in the sum of lars, with two sufficient sureties, to the effect that if this order, or any part thereof, is affirmed on appeal, or if said appeal is dismissed, the appellant will pay on demand the sum recovered or directed to be paid by the order, or the part thereof as to which it is affirmed, and also any and all damages that may result to defendants from said stay of proceedings, not exceeding said sum of dollars, the sureties on said undertaking to justify according to law, if excepted to; and it is further

ORDERED, that upon the failure or omission of the plaintiff to perform any of the above mentioned conditions, the stay herein shall fall and this order shall become absolute; and it is further

ORDERED, that the plaintiff pay defendant ten dollars, costs of this motion.88

[Authentication as in Form 818 of this volume.]

FORM No. 915.

Notice of motion to discharge attachment, as to all or part of the property, on giving security.89

[Title of court and action.]

Please take notice,90 that on [describing papers, if any], I shall move this court at a Special Term to be held at the City Hall [or, the County Court House], in

88 See volume I, p. 259, Form 101. 89 Notice of this motion is not essential, unless directed by the court or judge (N. Y. Code Civ. Pro., § 696), except that, if the application is made only in behalf of some of the defendants where there are two or more, then, under § 689, at least two days' notice of the application, with a copy of the affidavit relied on, must be served upon the plaintiff's attorney.

Such a motion concedes the validity of the levy. Jones v. Gould, 114 App. Div. 120.

on the

day of

The motion may be made any time before final judgment. N. Y. Code Civ. Pro., § 687; Spencer v. Rogers Loco. Works, 13 Abb. Pr. 180; Zerega v. Benoist, 7 Robt. 199, 33 How. Pr. 129; Wright v. Rowland, 36 How. Pr. 248, and see reversal of s. c. in 4 Abb. Ct. App. Dec. 649, 652.

90 If the defendant moves and has not already appeared, add notice of appearance as in Forms 437, 439, volume I, pp. 736-738.

19 at

o'clock in the

noon, or as soon thereafter as counsel can be heard [or, shall move before Hon. J. K.-naming judge who granted the warrant at his chambers, in the city of

in the

on the

noon], for an order that the this action, and dated the

day of

19

day of
attachment granted in
be discharged

as to all the property attached [or, if the relief is sought only as to a part, specify the part],91 on giving due security.

Whereas, on the

day of

of

19 a warrant of attachment was issued in the above action to the sheriff of the county [against the property of the defendant]; and the abovenamed having appeared in the action, and now applying [or, being about to apply] to the judge who granted the warrant [or, to the above-mentioned court], for an order to discharge the same [as to a part of the property attached92]:

2

street, in

Now, THEREFORE, we, M. N. of No. the city of , and county of and O. P., of No. street, in said city, do hereby jointly and severally undertake, pursuant to the statute: that said will, on demand, pay to the above-named plaintiff the amount of any judgment which may be recovered against the defendant in this action [or, if the undertaking is given by one of several defendants, say: which may be recovered against any of the defendants in this action — or, if proof of separate property has been made, say: which may be recovered in this action against the said — name of applicant- either alone or jointly with any other defendants], not exceeding the sum of [at least equal to the plain

91 The defendant has a right under Code Civ. Pro., to obtain the discharge of the attachment as to a portion of the property on giving security. See Trow Printing, etc., Co. r. Hart, 9 Daly, 413, aff'd, 85 N. Y. 500, 1 Civ. Pro. Rep. 240.

92 One undertaking will not suffice to discharge attachments in two different actions. Walton v. Daly, 17 Hun, 601; 2 N. Y. Code Civ. Pro., § 688; Waeber v. Talbot, 81 Hun, 595, 31 N. Y. Supp. 37.

tiff's demand, or at the defendant's option, the appraised value of the property attached3] dollars, with interest.94

[Date.]

[Signatures.] [Acknowledgment or proof, as in Form 822; Affidavits of sufficiency, as in Form 823; and Approval, as in Form 824.]

[File undertaking with clerk of the court, and serve copy with notice of filing. See Form 825. Justification in case of excep tion, as by bail upon arrest. N. Y. Code Civ. Pro., § 690.]

FORM No. 917.

Order discharging attached property on security being given.95 [Name of] Court [or, if court order] At a Special Term [etc., as in Form 820 of this volume].

[Title of action.]

The defendant [name, if only one of several], having appeared in this action, and having given sufficient security for the plaintiff's demand [or otherwise indicate nature or object of the security, and, if application is by one of several defendants, making proof of separate property, say, and said having made proof by affidavit to the satisfaction of the court- or, the undersigned that the property with respect to which the application is made, belongs to him separately]:

ORDERED, that the attachment granted by [me] against the property of the above-named Y. Z. on the

day of 19 be and the same is hereby discharged as to the whole of said property [or if as to part only, specify which part], and that the sheriff deliver the property so attached and remaining in his hands, as required by law.97

[Date and signature of judge with initials of title.]

[Or, if court order] Enter: [signature by initials of name and title.]

93 The sureties' liability is measured by the value of the attached property, not the amount of plaintiff's judgment. Bruck v. Feiner, 26 Misc. 724, 56 N. Y. Supp. 1025. Plaintiff is not concluded by the appraised value. Eisenbud v. Gellert, 26 Misc. 367, 55 N. Y. Supp. 952.

Of course the sureties cannot question the validity of the levy. Eisenbud v. Gellert, supra.

Interest runs from day of recovery of judgment, not from date of un

dertaking. Sooysmith v. Am. Surety Co., 28 App. Div. 346, 51 N. Y. Supp. 313.

95 From Ellsworth v. Scott, 3 Abb. N. C. 9.

96 The order should state whether the discharge applies to the whole or a part only; and if the latter, what part. Ellsworth v. Scott, 3 Abb. N. C. 9, which see, for the practice in obtaining a discharge.

97 As a general rule, it is even less necessary now than it was before the

FORM No. 918.

Affidavit to move to discharge attachment upon interest of a copartner in leviable property.98

[Title of court and action.]

[Venue.]

M. N., being duly sworn, says:

I. That the above-named defendant Y. Z. and this deponent, are and have been, at all times hereinafter mentioned, partners composing the firm of Y. Z. & Co., in the business of

street, in the city of

,

2

county of

at No. in this State, where they have [briefly describing property], belonging to them in equal shares [or otherwise here state distinctly the relative interests of the partners so as to show the value of the defendant's interest].

--

II. That this action is brought against deponent's said partner, on a cause of action against him alone, and this deponent has not been made a defendant therein; and is not, nor is he alleged to be, liable in any way thereon.

day of

19 a warrant of

III. That on the attachment, granted herein, against the property of said Y. Z., was levied by the sheriff of the county of

, upon the interest of the said defendant Y. Z. in the aforesaid goods and chattels, and the said sheriff has [here state facts as to levy and possession.]

IV. That [here state the condition of cause, showing that] final judgment has not yet been entered in the action.

V. [Here may allege any ground besides copartnership interest, which may be relied on as impeaching the attachment.]

VI. [May also allege facts tending to fix value; or determining the sufficiency of sureties offered.]

[If application is ex parte, state as to previous application;

new code, to insert directions as to the manner of the re-delivery; and unless such directions are called for by special circumstances, it is best to omit them. Id.

The sheriff's fees and poundage must be paid before defendant is entitled to the return. Lawlor v. Magnolia Metal Co., 2 App. Div. 552, 38 N. Y. Supp. 36, 3 Anno. Cas. 100; Jones v. Gould, 114 App. Div. 120.

98 For notice, see Form No. 915. Application is to be made to the judge who granted the warrant or to the court. N. Y. Code Civ. Pro., § 693.

The object of this remedy is to relieve against the rule in Smith v. Orser, 42 N. Y. 132, aff'g 43 Barb. 187; Goll v. Hinton, 8 Abb. Pr. 120. See also Staats v. Bristow, 73 N. Y. 264.