And the plaintiff having given the undertaking required by law [if amendment of complaint was asked for, add] and plaintiff having been directed by an order of even date herewith, made before the granting of this order, to serve an amended complaint herein; YOU ARE REQUIRED forthwith to arrest said defendant [naming him or them] in this action, and hold him [or, hold each of them] to bail in the sum of dollars18 [pursuant to the requirements of subd. 2 of section 575 of the Code of Civil Procedure1], and return this order, with your proceedings thereunder, as prescribed by law. [Date.] [Signatures of judge, with initials of title.] [Signature and office address of], Plaintiff's attorney. [Directions as in Form 945.] III. AMENDING COMPLAINT. FORM No. 953. Affidavit upon application for leave to amend complaint. [Adapt from Form 927, par IV.] FORM No. 954. Order allowing amendment of complaint by adding allegation of ground of arrest.20 [Title of court and action.]21 Upon the annexed affidavit of the plaintiff, A. B., verified the day of 19 and the verified complaint heretofore filed [or, served or both] herein, and the proposed amended complaint, duly verified, a copy of which is annexed to said affidavit; and on motion of A. T., attorney for plaintiff, now applying for an order of arrest against the defendant Y. Z., ORDERED, that plaintiff file and serve said amended verified complaint, such service to be made with or before the service. of the order of arrest now asked for. [Date.] [Signature of judge, with initials of title.] 18 See notes to Form No. 945. 19 This clause is convenient, but not necessary. As to whether it is proper or necessary to mention a sum which shall limit the liability of the bail, compare (in the affirmative) Tracy v. Veeder, 7 Abb. Pr. (N. S.) 23. note, 50 Barb. 70, 35 How. Pr. 209; (in the negative) Sherlock v. Sherlock, 7 Abb. Pr. (N. S.) 22; Elston r. Potter, 9 Bosw. 636; Josuez r. Murphy, 6 Daly, 324. 20 N. Y. Code Civ. Pro., § 558, last clause. See note to Form No. 927, paragraph 4. 21 In quo warranto it may be a court order. SECTION II. VACATING ORDER; DISCHARGING FROM ARREST; AND MODIFYING SECURITY. (964) Order to show cause thereon. (965) Order discharging from arrest privileged person, infant, idiot, or person of unsound mind. III. DISCHARGE ON BAIL, OR DEPOSIT. (969) Notice of bail justifying. (973) The same; with the direction Defendant's course.] The defendant may move to vacate on the ground that the complaint does not state a sufficient cause of action under Code Civ. Pro. § 549; such motion may be made even after judgment if the complaint has been first filed on entering judgment and has not been served.22 Motions to vacate on other grounds must be made before judgment, or within twenty days after arrest.23 If defendant questions the jurisdiction of the court, he may, in a clear case, 24 move to dismiss the action for want of jurisdiction 22 New Haven Web Co. v. Ferris, 125 N. Y. 364. 23 Code Civ. Pro., § 567. 24 Volume I, p. 82. of the subject-matter, or move to set aside the proceedings therein for want of having acquired jurisdiction of his person; and in such case, if he appears specially, the court have power to extend his time to appear generally and plead, until the jurisdictional question is settled.25 Where jurisdiction is not questioned, he may (without, however, waiving any objection that the court has not jurisdiction of the subject-matter) move to vacate the order of arrest, or to reduce the amount of bail, or to increase the security given by plaintiff and may combine these objects in one motion, asking them if he choose in the alternative.26 Even if the validity of the order is not questioned, defendant can move to be discharged from the arrest made under it, on the ground that it was effected by artifice, or irregularly made, or that he was privileged from arrest. Even if the regularity of the arrest is not questioned, defendant may give bail, which will set him at liberty, his bail being only liable that he will at all times render himself amenable to final process,27 or, in the case of arrest for apprehended evasion of the jurisdiction, that he will obey such order or judgment for specific relief as the court may make;28 except, however, in replevin, in which case bail are responsible for delivery of the chattel, if adjudged, and payment of any money recovery in the action.29 He may, if he prefer, in lieu of bail, deposit money to be held on the same conditions. If he is held for want of bail or deposit, he has a right to be admitted to the liberties of the jail - which, in the most populous counties, extend to the whole of the county or city-on giving security, simply, that he will not go beyond the liberties until discharged by due course of law;30 and this enlargement, he may have in all cases of arrest whatever, including replevin and ne exeat, whether on execution or on order, but not, however, when committed after conviction for contempt. The statute limiting the term of imprisonment in civil actions for the recovery of money, does not apply to prisoners held under 25 Volume I, pp. 732, 738. 26 N. Y. Code Civ. Pro., § 567 (the time for so moving is, however, in some cases, limited by the statute). 27 Id., 565, subd. 3. 28 Id., subd. 1. 29 Id., subd. 2. 30 N. Y. Code Civ. Pro., § 750. 31 Id., § 111, as amended in 1886. an order of arrest granted as a provisional remedy;32 but plaintiff cannot temporize by delaying to enter final judgment, or issue execution against the person, and thus postpone the limit. If plaintiff unreasonably delays trial,33 or neglects for ten days to enter judgment either after the granting of the order of arrest or its execution,34 or to issue a body execution, either within ten days after return of a property execution, or, in any event, within three months after entry of judgment; or delays his remedy by collusion, or for the purpose of effecting extended imprisonment under different processes, defendant may move for a discharge, and the court in its discretion may grant it.35 2. Rules for decision of motion to vacate.] - Where defendant moves upon the plaintiff's papers only, the rule for decision accords with that in attachment, i. e., that the truth of all facts alleged is conceded, and that plaintiff is entitled to all just inferences fairly deducible from the facts alleged.36 Where defendant moves to vacate upon new papers, the court should examine the affidavits, and dispose of the matter according to the just preponderance of proof as contained in them, no matter whether the grounds of arrest are identical with the facts which establish the cause of action, or are extrinsic to the cause of action.37 Upon such motion, plaintiff may read additional papers supporting any ground recited in the order of arrest.38 3. Terms imposed.] -The court has power, where the decision of the motion appeals to the discretion of the court, to impose terms as a condition of vacating, such as, that defendant will not 32 Levy v. Salomon, 105 N. Y. 529, 19 Abb. N. C. 52, rev'g 18 id. 220; Matter of Shepard, 43 Hun, 287, 12 Civ. Pro. Rep. 126. 33 Omission to place on calendar may not constitute such unreasonable neglect. Goff v. Charlier, 44 Misc. 28, 89 N. Y. Supp. 722. 34 Wasserman v. Benjamin, 88 App. Div. 1, 84 N. Y. Supp. 489 (delay of a year after verdict in entering judgment will not prevent the granting of an order of arrest, but plaintiff must then enter judgment within ten days after granting of order or its execution). 35 N. Y. Code Civ. Pro., § 572. Even if out on bail. Havemeyer Sugar Refin. Co. v. Taussig, 19 Abb. N. C. 57, 44 Hun, 475. Or not yet arrested. Knight r. Vanderbilt, 18 N. Y. Supp. 810. But the section has no application to a defendant arrested in an action of replevin, and discharged upon giving an undertaking. Hedges v. Payne, 85 Hun, 377, 32 N. Y. Supp. 966. And see EXECUTION. 36 Martin v. Lynch, 14 Misc. 47, 35 N. Y. Supp. 135; Boyer v. Fenn, 19 Misc. 128, 43 N. Y. Supp. 533; Phillips v. Wortendyke, 31 Hun, 192. 37 Levy v. Bernhard, 2 App. Div. 336, 37 N. Y. Supp. 840, 3 Anno. Cas. 40; Argrave v. Blackman, 25 Misc. 654, 56 N. Y. Supp. 412, 28 Civ. Pro. Rep. 362. 38 Ensign v. Nelson, 21 Abb. N. C. 321; Code Civ. Pro., § 568. sue for damages;39 but no such condition may be imposed where defendant is entitled as of right to the vacatur." 4. Before whom made.] The motion to vacate, when made. upon plaintiff's papers, may be made to the judge who granted the order, with or without notice as he may deem proper; or it may be made to the court, on notice.41 If founded upon the new papers, it may be made to the court, or, if the order was granted by a judge, to any judge of the court, but only upon notice in each instance. Plaintiff may meet this latter motion with new proof, supporting any ground of arrest recited in the order, or avoiding the defense of bankruptcy.* 42 5. Motion to reduce bail.] The motion may be made at any time before final judgment, and notwithstanding defendant has given the bail required in the order.43 The fact that the bail is now required merely to secure defendant's presence upon issuance of execution against his person (except in ne exeat and replevin) and that his term of imprisonment thereunder cannot exceed six months, should be considered in fixing the amount." I. VACATING ARREST, REDUCING BAIL, OR INCREASING SECURITY. FORM No. 955. Affidavit to move to vacate arrest. [Title of court and action.] [Venue.] Y. Z., being duly sworn, says: I. That he is the defendant above only for the purposes of this motion. 739.] named [appearing herein 39 Kimball v. Flagg, 15 Daly, 496, 8 N. Y. Supp. 469; see, also, cases cited in notes to Form 958. 40 Matter of Bradner, 87 N. Y. 171; Tompkins v. Smith, 48 N. Y. Supp. 113, 1 Civ. Pro. Rep. 398, aff'd, 89 N. Y. 602. 41 Code Civ. Pro., § 568; Skinner Mfg. Co. v. Fagenson, 38 Misc. 121, 77 N. Y. Supp. 101; Van Kleek v. Nichols, 63 How. Pr. 403; Jordan v. Harrison, 13 Civ. Pro. 445. 42 Code Civ. Pro., § 568. 43 Sibley v. Smith, 67 App. Div. 514, 73 N. Y. Supp. 977. 44 Sibley v. Smith, supra (suggesting that bail in the sum of $5,000, without special circumstances appearing. is excessive, without regard to the amount sought to be recovered). See also notes to Form 945. |