see Form 817. If an order to show cause is asked, state as to previous application, and also the condition of the cause and necessity of order to show cause, as in Form 816.]

[Jurat.]

FORM No. 919.

[Signature.j

Undertaking on application to discharge interest in partnership goods and chattels from attachment.

[Title of court and action.]

M. N., of

now applying, or being about to apply for an order that the attachment heretofore issued in this action to the sheriff of the county of against the property of the defendant Y. Z., be discharged as to the interest of said Y. Z. in the goods and chattels of the firm of M. N. and Y. Z.:

Now, THEREFORE, we [naming at least two sureties, with their residences; see Volume I, p. 455], do hereby jointly and severally undertake pursuant to the statute, that we will pay to the sheriff of the county of , on demand, the amount of any judgment which may be recovered against said defendant Y. Z., herein, or which may be recovered against him in any other action wherein said [naming the applicant copartner] is not a defendant [or, are not defendants], and wherein a warrant of attachment or an execution may come to the hands of the said sheriff of the county of at any time before the afore

said warrant of attachment is vacated or annulled, not exceeding the sum of dollars [which must not be less than the value of the defendant's interest in the partnership goods or chattels seized.

[Date.]

[Signature.] [Acknowledgment or proof as in Form 822; Affidavits of sufficiency as in Form 823. Order fixing amount and approving undertaking, as in Form 824.]

[The order of discharge may be easily adapted from Form 917.]

FORM No. 920.

Affidavit to move to discharge attachment as to non-leviable property belonging to defendant and his copartner.99

[As in Form 918 to the *.]

II. That said firm, since the said day, has, from time to time, for the account of its numerous customers and dealers in

99 This, with the affidavit in corroboration, were sustained by Barry v. Fisher, 8 Abb. Pr. (N. S.) 369; to same effect, Weston v. Conant, 1 City

Ct. 224. Compare Smith v. Orser, 42 N. Y. 132, aff'g 43 Barb. 187, and N. Y. Code Civ. Pro., § 693.

caused stocks, bonds and gold to be bought and sold in New York, through H. & Co., brokers in New York, and correspondents of said firm of W., F. & S., and that margins and moneys derived from and furnished by the customers and dealers of said firm in from time to time, since said day, have been forwarded to and remitted to said firm of H. & Co., to serve as moneys and margins in their hands on account of the transactions entered into by them, for the account of the said firm, acting as brokers for dealers.

III. That all the moneys, funds, credits and property of said firm of W., F. & S. standing to their credit with, or held by said firm of H. & Co., were remitted by said firm of W., F. & S., since this deponent became a member of said firm, and are applicable and should be applied in settlement of the affairs and liabilities of said firm as at present constituted, and that the rights and interests of its creditors and this deponent may be and are seriously injured by the attempt to attach the funds and property standing to the credit of the present firm on account of [designating the alleged cause of action against the old firm], and which took place, if ever, several months before deponent became a member of said firm, and that the undertaking given on the issuing of this attachment herein is utterly inadequate.

[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.]

FORM No. 921.

[Signature.]

Affidavit in corroboration by the fund holder.

[Title of court and action.]

I. That he is a member of the firm of H. & Co., upon whom an attachment in this action has been served, and that upon the

day of

19 his said firm of H. & Co. duly made

and delivered to the sheriff of the [city and] county of

a certificate, of which a copy is hereunto annexed, marked "B," which certificate was accompanied by an account or statement of the stock and gold which the deponent's said firm was carrying for the firm of W., F. & S., of

II. That all moneys and other property in the hands of deponent's firm, and belonging to the said firm of W., F. & S., have been so received from the new firm since the

day of

19, and are held by deponent's firm as margins on account of transactions, for said last-mentioned firm, which is composed of the defendants in this action and W. W. R., which was formed on the said day, and of which deponent's firm then had notice.

III. That deponent's firm has no moneys or property belonging to the firm of W., F. & S., as the said last-mentioned firm was constituted prior to said day.

IV. Deponent further says, that the attachment operates very injuriously upon the interests of deponent's said firm, and of the said W. W. R., and of the present firm of which he is a member, and of his and their correspondents and agents.

[Jurat.]

FORM No. 922.

[Signature.]

Order discharging attachment as to partnership fund.1 [Caption as in Form 819 or 820 of this volume.]

day of

On reading [if not already filed, add: and filing] the affidavit on which the attachment in this action was granted, verified by A. B., on the 19 and the attachment and notices thereof, served by the sheriff on Messrs. H. & Co., the affidavits of W. W. R. [etc.], verified [etc.], the certificates made and delivered to the sheriff by H. & Co., and the order to show cause heretofore granted on the 19 " and proof of due service thereof [and an undertaking given on the part of W., F. & S., dated the and after hearing F. M., in support of said order to show cause [appearing specially on behalf of the above-named

day of

day of

19 ],

,

for the purpose of the motion only], and A. T., in opposition; and due deliberation being had:

ORDERED, that the execution of the attachment, and the service of the notices by the sheriff of the city and county of

of the attachment issued herein on H. & Co., be and the same are hereby declared inffectual for the purpose of attaching the funds, balances and property in their hands standing to the credit,

1 From Barry v. Fisher (above).
2 This paragraph is appropriate

only where the original levy was legal.

or held for the account, of the present firm of W., F. & S., composed of the defendants and W. W. R.

AND IT IS FURTHER ORDERED, that the funds, balances, and property with said H. & Co., so standing to the credit of, or held for the account of, the said present firm of W., F. & S., at the time of the issuing of the said attachment, and at all times subsequent thereto, be, and the same are hereby released and discharged from the effect and operation of said attachment.3 [Authentication as in Form 818.]

FORM No 923.

Affidavit to move to vacate notice of attachment on real property.4 [Title of court and action.]

[Venue.]

Y. Z., being duly sworn, says:

I. That he is defendant in the above-entitled action [or otherwise state his relation to the cause.]

day of

19 an at

II. That on or about the tachment against said defendant's property was issued herein, and delivered to the sheriff of the county of

and that

the same was levied or claimed to have been levied upon the premises of this defendant at

III. That on the day of

19 a notice of said attachment with a description of the real property so claimed to have been levied upon was filed with the clerk of said county, a copy of which is hereto annexed.

IV. That thereafter, by an order of the judge who granted said warrant, dated [or, of this court, entered] on or about the day of 19 said attachment was vacated [or, was

3 See Ellsworth v. Scott, 3 Abb. N. C. 9.

4 Under N. Y. Code Civ. Pro., § 711, application must be made to the court upon such notice as it deems just." Hence it is best to take an order to show cause or a direction on the notice of motion that service in a specified manner or time shall be sufficient.

To entitle the applicant to the order as matter of right, it is held in

Jaffray v. Brown, 17 Hun, 575, that the affidavit must show a valid attachment; but the court have undoubtedly power to cancel a notice which is void. See Vol. I, p. 247.

Where plaintiff has recovered a nominal verdict, from which he has appealed, giving security, the notice will not be cancelled. McKean v. Nat. Life Assoc., 24 Misc. 511, 53 N. Y. Supp. 980.

discharged as to the said real property -- or, as to the portion of said real property known and described as follows-description -and if the order thus referred to has not been served on all of the parties to whom notice of this motion is to be given, add: a copy of which order is hereto annexed].

V. [May add any allegation showing prejudice to defendant by the outstandng notice.]

[If application is ex parte, state as to previous application, see Form 817, supra; 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.]

FORM No. 924.

[Signature.]

Order cancelling notice of pendency of action and attachment of real property. [As in Form 525, p. 896 of Volume I.]

FORM No. 925.

Notice of motion to tax sheriff's fees on attachment.5

[Title of court and action.]

Please take notice, that the annexed bill will be presented for taxation before the Hon. [name of judge who granted the warrant], at court chambers, on the day of noon, at which place you are notified to be present, and that affidavits, of which copies are hereto annexed, will be read on behalf of the sheriff.

19, at

o'clock in the

[Date.]

[Address] To

[Signature of]

Sheriff.

Attorney for [the party liable for the payment].

FORM No. 926.

Order taxing sheriff's fees on attachment.6

[Title of court and action.]

An attachment having been issued in the above entitled action on the day of

5 Under N. Y. Code Civ. Pro., § 3307, subd. 2; this motion may, by virtue of § 26, in the city of New York, be made before any judge of the court. Hall v. U. S. Reflector Co., 31 Hun, 609; aff'd, without opinion, in 99 N. Y. 634.

19

directed to M. N., then

See Woodruff v. Imperial Fire Ins. Co., 90 N. Y. 522, 524, aff'g 27 Hun, 229, where this and the following Form was sustained.

6 See note to last Form.