further, that he excepts to the form and sufficiency of the under taking.79] [Date.] To [Address], Sheriff of [Title of court and action.] Please take notice, that the bail in this action [or, that — giviny names, residences and occupations - who are hereby proposed as bail in the place of the bail already put in], will justify * before Hon. J. K., a justice of this court [or, the county judge of county], at [naming some place within the county where one of the bail resides, or where the defendant was arrestedo1], on the day of [Date.] To [address], next, at Attorney for plaintiff. o'clock in the [Signature and address of], noon. Sheriff [or, defendant's attorney]. FORM No. 970. Examination of bail. [Title of court and action.] On this day of 19 , before the undersigned. J. K., a justice of this court [or, county judge of the county of ], personally appeared M. N. and O. P., the bail of the defendant Y. Z. in this action, to justify pursuant to notice; and the said M. N., being duly sworn, says [here state testimony, inserting, if desired, the questions and answers in that form]. And said O. P., being duly sworn, says [etc., as above]. 82 N. Y. Code Civ. Pro., § 581. If plaintiff's attorney does not appear, the examination is waived. Webb v. Hecox, 27 Misc. 169, 58 N. Y. Supp. 382 (even though the sureties also fail to appear). FORM No. 971. Allowance of bail. [To be indorsed on the undertaking.] This day appeared before me the within-named M. N. and O. P., bail for the defendant, Y. Z. in this action, and justified as such, and I find said bail to be sufficient, and allow the same. [Date.] [Signature of judge, with initials of title.] FORM No. 972. The same; as to one bail, and for time for the other to justify. [As above, omitting, however, one name; and adding at the end,] and upon reading and filing the annexed affidavit of C. C., it is further ordered, that the defendant have days further time [or, until ] to justify O. P., his other bail in this cause; and defendant hereby consenting that the plaintiff shall be in the same situation by the course of this court, as if they had both justified this day. FORM No. 973. The same; with the direction that the money be refunded.$3 [Add:] And further ORDERED, that the sum of deposited in the hands of the sheriff of the county of dollars, by the defendant on his arrest in this cause, instead of bail, and since brought into court by the sheriff pursuant to the statute, be paid out of court by , to the defendant or his attorney. FORM No. 974. Allowance of added bail. [To be indorsed on the undertaking.84] Upon reading and filing the affidavit of T. Z. [or, where the bail in question is added by a new undertaking and notice of justification, say, the within undertaking of O. P. as bail, and the annexed notice of bail and justification and proof of service thereof], and the said O. P. having appeared before me and justified as such, I find said bail to be sufficient, and allow the same, together with M. N., who justified himself on the [Date.] last. day of [Signature of judge, with initials of title.] 83 Provision is made for the substitution of bail for deposit by N. Y. Code Civ. Pro., § 584. 84 N. Y. Code Civ. Pro., § 581. FORM No. 975. Certificate of deposit in lieu of bail.85 [Title of court and action.] [Venue.] I, M. N., sheriff of the county of I have received from the defendant the sum of hereby certify that dollars as a deposit instead of bail, being the amount mentioned in the order of arrest in this action. [Signature.] county. FORM No 976. Notice to protect deposit in lieu of bail.86 [Title of court and action.] of I, Y. Z., defendant above named, on whose behalf the sum of dollars has been this day [or, was, on the day ] deposited with you, in lieu of the bail required of me in this action, hereby direct you to pay over said deposit to in the event that I become entitled to a return M. N., of of said deposit. [Date.] [Address to], Sheriff of the county of [Signature.] [Acknowledgment, or proof by witness, as in Form No. 1 or 6, pp. 3 and 5, Vol. I.] FORM No. 977. Certificate that bail has been given instead of deposit.87 [Title of court and action.] [Venue.] I, M. N., sheriff of the county of , hereby certify that the defendant Y. Z. has deposited with me an undertaking, of which the within is a copy, in lieu and instead of the money heretofore deposited with me. 85 See N. Y. Code Civ. Pro., § 582. 86 This direction may be given any time before the payment of the deposit into court. Ñ. Y. Code Civ. Pro., 586. See on this subject, 18 Abb. Sheriff of [Signature] county. N. C. 323; Finelite v. Sonberg, 75 87 N. Y. Code Civ. Pro., § 584. FORM No. 978. Affidavit to move for supersedeas,88 [Title of court and action.] [Venue.] Y. Z., the defendant above named, being duly sworn, says: I. That on the day of the sheriff of the county of 19 he was arrested by by virtue of an order of arrest in this action, dated [or, entered] the day of 19 and held to bail in the sum of dollars [and if bailed and surrendered, add], and that he gave bail, and afterward and on the 19 his bail on said arrest surren day of dered deponent to the said sheriff, in their own discharge [and were exonerated, as appears by the- naming papers - copies of which are hereto annexed]. II. That ever since said arrest [or, surrender] this deponent has been and now is held in actual custody by said sheriff, by virtue of said order of arrest. day of [If defendant has not yet been imprisoned under the order, substitute for paragraphs I and II, That on or about the an order of arest in this action was granted by the Hon. J. K., a judge of this court-or, county judge of county and that deponent, having been arrested thereon by the sheriff of , gave bail on the day of 19 .] III. That [here state the condition of the cause, showing that plaintiff has unreasonably delayed the trial of the action; that he had power for at least ten days after the arrest, or after the granting of the order, to enter judgment, and has not done so; or, that judgment has been entered and execution against property 88 See, generally, on this subject, paragraph 1, p. 1305, supra. 89 Formerly this provision as to discharge of the defendant applied only to defendants in actual custody; but a defendant may apply after dis charge on giving bail, or before arrest, since the 1886 amendment to N. Y. Code Civ. Pro., § 572. A defendant in replevin who has given bail, if not for the jail limits, cannot be discharged under this section. Hedges v. Payne, 85 Hun, 377, 32 N. Y. Supp. 966. 91 The section has no application when defendant is held under execution against his person. Redner v. Jewett, 72 Hun, 598; 25 N. Y. Supp. 273. 90 Defendant must establish that the delay has been unreasonable. Hav. Sugar Ref. Co. v. Taussig, 44 Hun, 475, 19 Abb. N. C. 57. 91 Knight v. Vanderbilt, 18 N. Y. Supp. 810; Wasserman v. Benjamin, 88 App. Div. 1, 84 N. Y. Supp. 459. 93 thereon returned at least ten days previous to the application; or, that judgment has been entered and plaintiff has neglected for three months thereafter to issue a body execution; or, that plaintiff delays the enforcement of his remedies by collusion or for the purpose of allowing the debtor to remain in prison under a mandate in any other action, before the issuing of the mandate in favor of the plaintiff, so as to produce a continued and extended imprisonment by virtue of the separate mandates in the different actions, for instance, as follows:] on the day of 19 a final judgment was entered by the plaintiff in his favor against the defendant, and duly docketed, and the judgment-roll filed, for the sum of dollars [or, directing the payment of the sum of dollars by this defendant to the plaintiff - or, awarding to the plaintiff the recovery against the defendant of the chattel therein mentioned]. 94 IV. That plaintiff has neglected to issue execution against the person of the deponent, although three months have elapsed since the entry of judgment and filing of the judgment-roll as aforesaid. V. [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. 979. [Signature.] Certificate of sheriff that defendant is in custody, and that no execution has been issued. [Title of court and action.] [Venue.] I do certify that Y. Z., the defendant above named, is a prisoner in my custody, under an order of arrest dated [or, entered] herein the 19 and [on surrender to me of him, made the 19 by his bail in day of 92 The time for charging in execution is to be computed from the date of actual entry of judgment, not from the date when it might have been entered. If plaintiff neglects to enter it, he may be compelled to do so by order. The mere acceptance of an offer to allow judgment is not obtaining judgment within the meaning of the statute. Lippman v. Petersberger, 9 Abb. Pr. 209, 18 How. Pr. 270. And any evidence of such entry of judgment is sufficient. Standacher v. Pregenzer, 52 How. Pr. 76 (where it was held unnecessary to produce a certified copy of the docket). 93 Gellar v. Baer, 12 Civ. Pro. Rep. 433. Annex certificate of sheriff, as in next form, showing that no execution has been issued to him. 94 See N. Y. Code Civ. Pro., §§ 1239, 1240. |