II. That on the day of last, he was arrested by virtue of an order by the sheriff of the county of of arrest of which a copy with a copy of the papers whereon it was made, is hereto annexed.45 III. [State facts as to bail, as thus:] That he has not yet given security as allowed by law to obtain his discharge [and, if an order to show cause is asked for, state that he is in actual custody, as thus:] but is now actually confined by said sheriff in the county jail of county, and is unable as yet to find 46 bail or to make any deposit in lieu thereof. IV. [If motion is not to be rested merely on the plaintiff's papers, insert denials of plaintiff's affidavits, or allege new matter relied on in avoidance, or both.47] V. [If order to show cause is asked for, add reason, as thus:] Deponent asks an order to show cause, instead of giving the usual notice of motion in order that he may not be held in custody until the which is the earliest day that a motion could be made on notice. [Also state condition of cause, and as to previous application; see Form 816.] day of [Jurat.] FORM No. 956. [Signatures.] Order to show cause why order of arrest should not be vacated or bail reduced, or security increased.48 [Title of court and action.] of On [the annexed affidavit of Y. Z., verified on the day 19 and the pleadings herein and] the order of arrest herein, and the papers on which the same was granted: Let the plaintiff show cause before this court, at a Special Term 45 It was held in Martin v. Gross, 16 Civ. Pro. Rep. 235, 56 N. Y. Super. Ct. 512, 4 N. Y. Supp. 337, that a motion to vacate on the plaintiff's papers will lie without showing that the defendant has been arrested. It will not be entertained, however, if it appear that defendant is remaining out of the jurisdiction to avoid arrest, in a case where the order has been issued for his contempt. See Matter of Byrne, 55 Hun, 438, 8 N. Y. Supp. €76, aff'd, 121 N. Y. 675. 46 Garrett v. Humiter, 1 Monthly L. Bul. 42. 47 On a motion to reduce the bail, defendant should show the facts constituting the defense or going in miti gation. Britton v. Richards, 13 Abb. Pr. (N. S.) 258. 48 Adapted from the Form used in People v. Tweed, 63 N. Y. 202. Compare, however, for certain restrictions under N. Y. Code Civ. Pro., §§ 719 and 772 of that act. thereof, to be held at the County Court-House, in the city of 49 on the day of 19 at o'clock in noon, or as soon thereafter as counsel can be heard [or, at the before Hon. J. K., one of the justices of this court, at on the day of o'clock in the noon], why the said order of arrest should not be vacated, or, if that be refused, why the amount of bail should not be reduced, or the security given by plaintiff be increased, or such other or further order made as may be just [with costs of this motion may add grounds, and if irregularity is relied on, must specify it as thus:] upon the following grounds [and see Forms 899-909, and notes.]: 1. That the defendant has been already arrested and held to bail in dollars, at the suit of the same plaintiff for the same cause of action. 2. That the order of arrest was made while other actions for the same cause were pending, and that a similar suit between the same parties for the same cause of action, was and is now pending, wherein the defendant was and is still under bail to the amount of dollars. 3. That the papers on which the order was granted were not sufficiently or properly verified.51 4. That no undertaking was delivered to the sheriff, and no copy thereof served on the defendant. 5. That no ground of arrest is alleged in the complaint. 6. That the defendant should not be held to bail, and his property attached, at the same time and in the same action.52 7. That the bail would be excessive, supposing a good cause of action be shown, and no constitutional provision to exist in respect to bail. 8. That the amount of bail is excessive and prohibited by the Constitution. 49 The judge who granted the warrant may entertain an application to vacate founded upon the plaintiff's papers only; a motion upon additional papers must be made in the district where the action is triable, or, except in the first district, in an adjoining county. Moser, etc., Co. v. Lawrence, 60 Hun, 137, 14 N. Y. Supp. 540. 50 Dieckerhoff v. Ahlborn, 2 Abb. N. C. 372, 374; Lalor v. Fisher, 2 Robt. 669; Vol. I of this work, p. 122, etc. Also see notes to Form No. 897. 51 See N. Y. Code Civ. Pro., §§ 524, 557. 52 This objection is not ordinarily sustainable. It should be shown that both are not reasonably necessary for plaintiff's security. § 719. 9. That the bail should not exceed an amount which the defendant is supposed able to give. Service of this order, with a copy of said affidavit, shall be sufficient if made on or before the [Date.] day of 19 53 [Signature of judge, with initials of title.] FORM No. 957. Notice of motion to vacate order of arrest,54 or to reduce bail, or increase [Title of court and action.] day of security. Please take notice, that on the [specifying the papers] in this action [and on the annexed affidavits of Y. Z. and O. P., verified the 19 the undersigned, will move the court, at a Special Term to be held at the City Hall [or, the County Court House], at , 19, at o'clock in the thereafter as counsel can be heard [or, o'clock in the on the day of noon], to vacate the next, at order of arrest heretofore granted in this action, or reduce the amount of bail required of defendant,55 or increase the security given by the plaintiff on applying for said order of arrest, with costs, and for such other or further relief as may be just [and if the order moved for is asked, in any part, on the ground of irregularity, specify it, for instance, thus:] and that such relief will be asked upon the grounds, among others, of irregularity, in that all the papers upon which the said order of the court was granted, were not specified in said order, and that a copy of the order, with the papers upon which the order was granted, was not delivered to the defendant upon his arrest, nor filed as prescribed by law [and see last Form for other grounds.] FORM No. 958. Order vacating order of arrest.56 57 [Title and recitals, as in Form No. 819 or 820 of this volume.] day of ORDERED, that the order of arrest granted herein, dated [or, entered] the 19 [against the defendant Y. Z.], be and the same is hereby vacated, with ten dollars costs to defendant. [If desired, state ground of vacatur,58 see Forms 956-7, and 899-909.] [If the vacatur is upon a stipulation not to sue, state terms, for instance, thus:59] upon the execution of and delivery to the plaintiff's attorneys of a stipulation by the defendant relinquishing all claim for damages, and also all supposed rights of 56 Under N. Y. Code Civ. Pro., § 568, if the order to be vacated was made by the court, this order vacating it must also be by the court. If it was made by a judge out of court, then, where the application to vacate is made on the original papers, it may be to the same judge in court or out of court, and may be with or without notice; or, the motion may be made to the court, upon notice. Skinner Mfg. Co. v. Fagenson, 38 Misc. 121, 77 N. Y. Supp. 101. Where it is made on proof by affidavit on the part of the defendant, it may be made to the court, or to any judge of the court, upon notice. 57 In accordance with N. Y. Gen. Rules of Practice No. 3, an order vacating an arrest on motion founded on new papers, must specify all the papers; and all must be filed unless otherwise ordered by the court. 58 An appellate court will presume that the ground of vacating was discretionary unless it be otherwise stated in the order itself. Clarke v. Lourie, 82 N. Y. 580; s. P., Edgerton v. Ford, 11 Abb. Pr. 415. 59 This Form, appropriately modified in phraseology, is from the order entered in Forrest v. Forrest. Where, upon vacating an order of arrest, upon the ground that, upon the whole case, as presented upon the motion to vacate, there is not evidence to charge the defendant with the whole wrong complained of, the court is satisfied that there was no malice So, Where defendant is entitled to have an order of arrest vacated as a matter of right, the court has no power to impose as a condition that defendant shall stipulate not to sue, and where it has vacated the order of arrest, it cannot subsequently resettle the order by imposing such condition. Crotty r. Kimball, 22 Wkly. Dig. 433; Wilder v. Guernsey, 19 Alb. L. J. 401, 8 Wkly. Dig. 107. If defendant is entitled to have the order vacated on plaintiff's own papers, because the action is not one in which an order of arrest can be issued, the court has no power to require the stipulation. Tompkins v. Smith, 1 Civ. Pro. Rep. 398. See, also, Chapin v. Foster, 101 N. Y. 1, 3 East. Rep. 208. action arising from the arrest on said order. And in case the plaintiff shall give notice of an appeal from this order on or before the day of instant, it is ordered that all proceedings under this order for the discharge of the defendant from such arrest, or for the delivery up of said bond, be stayed until the said appeal be heard and decided; and it is further ordered, that no action shall be brought or proceeding had against the defendant, or his sureties in his undertaking, upon said undertaking or otherwise, or against the said sheriff or otherwise, for or by reason of any absence of the defendant from this State between this time and the decision of the general term of this court on said appeal, provided that the defendant shall be within this State and present at the settlement of the order of the general term on said appeal. [Authentication, as in Form 819 or 820.] FORM No. 959. Order denying motion to vacate order of arrest; on terms. [Title and recitals; see Form No. 819 or 820 of this volume.] 60 ORDERED, that the said motion to vacate the said order of arrest [so far as the same relates to the defendant Y. Z.] be and hereby is denied [with ten dollars costs to the plaintiff to abide the event of this action-or, on the plaintiff amending—or, serving the summons herein] [but without prejudice to the right of the defendant Y. Z., to make such new motion to the right of the defendant Y. Z., to make such new motion for the same relief or any part thereof, and on the same or fresh papers, or both, as he may be advised - provided he notices his motion within days from the entry of this order upon payment of the costs of this motion-and meanwhile, and until ten days after the hearing and decision of the Appellate Division of this court, on any appeal to be taken from this order within days after the date, all the proceedings on the part of the plaintiff and his attorney are stayed as to the said defendant]. [Authentication as in Form 818.] 60 Leave is necessary in order to secure the right to renew. Vol. I, p. 159; Lovell v. Martin, 12 Abb. Pr. 178, 21 How. Pr. 238. But an order to show cause why the order should not be vacated, if granted by the same judge, is equivalent to leave to renew. 61 Express leave to renew does not imply an extension of time to make the motion. Wheeler v. Brady, 2 Hun, 347, 4 Sup. Ct. (T. & C.) 547; Mills v. Rodewald, 13 Hun, 439. 62 Actual renewal is a waiver of the right to appeal from the first denial. Vol. I, p. 163; Harris v. Brown, 93 N. Y. 390. |