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this action, in their exoneration], and is confined in the county jail of said county [or, but has been admitted to the jail liberties, by an undertaking given the 19 95], and that no execution against the person of said defendant has, up to the date hereof, been issued to me by the plaintiff in this action.

[Date.]

[Signature of], Sheriff
of the county of

FORM No. 980.

Order to show cause for supersedeas of arrest.90

[Caption as in Form 819 or 820 of this volume.]

the

day of

Upon the annexed affidavit of [the defendant] Y. Z., verified 19 [and the certificate of the sheriff also annexed], and on [name other

of the county of

papers relied on, if any], let plaintiff or his attorney show cause before this court, at a Special Term thereof to be held at the County Court House in

97

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on the

o'clock in the

day of 19 at noon, or as soon thereafter as counsel can be heard, why a supersedeas should not be allowed, discharging the said defendant from the custody of the sheriff of the county of [or, if defendant has been discharged upon bail, why the undertaking of the bail given upon the defendant's discharge from the custody of the sheriff should not be cancelled; or, if the defendant has not yet been imprisoned, why a supersedeas should not be allowed, relieving the defendant from imprisonment under the order of arrest granted in this action on the day of 19], and why such other and further relief should not be granted to defendant as may be proper. [If irregularity is relied on, specify it.] Service of this order and said papers shall be sufficient if made on or before the

of

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95 See note 89 to Form 978.

96 By N. Y. Code Civ. Pro., § 572, as amended in 1886, this application must be made to the court in which the action was commenced, and on notice to the plaintiff.

The section only applies where the defendant is in custody, or has given an undertaking. People ex rel. Harris v. Gill, 85 App. Div. 112, 83 N. Y. Supp. 135, aff'd, 176 N. Y. 606;

day

Hedges v. Payne, 85 Hun, 377, 32
N. Y. Supp. 966.

97 The clause allowing this application to be made in the county where defendant is in custody, irrespective of the general rule (Sumner v. Osborn, 22 Hun, 13, and see volume I of this work, p. 88), was superseded by the amendment of 1886 to Code Civ. Pro., $572.

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[Indorse on or annex to a certified copy of the undertaking:]

To the sheriff of the county of [name of county where defendant was arrested]. The undersigned, a surety [or, sureties] on the annexed undertaking given on the arrest of [or, on admitting to the liberties] the defendant, Y. Z., therein named, herewith surrender him to you, and require you to take him into your custody pursuant to law.

[Date.]

[Acknowledgment, as in Form 822.]

FORM No. 982.

[Signature.]

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I, M. N., sheriff of the county of

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hereby certify that

Y. Z., the defendant mentioned in the [within] undertaking [or, if not indorsed, refer to the undertaking so as to identify it], was

98 N. Y. Code Civ. Pro., § 592, provides for this surrender by bail, § 154, for this surrender by sureties on an undertaking for the limits.

The surrender must be made as the

section provides. A mere offer to give up the defendant is ineffective. Garofalo t. Prividi, 43 Misc. 359, 87 N. Y. Supp. 467.

The bail on an undertaking in an action of replevin cannot surrender the defendant. Hedges v. Payne, 85 Hun, 377, 32 N. Y. Supp. 969.

99 One of several sureties may surrender. Code Civ. Pro., § 593.

1 May conveniently have indorsed on a certified copy of the undertaking.

surrendered to me by [name of surety or sureties surrendering], 19 and remains in custody by

this

day of

virtue thereof.

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[Signature and title.]

FORM No. 983.

Authority from bail to arrest principal.

KNOW ALL MEN by these presents, that the undersigned C. D. [and E. F.], the within named bail, depute, authorize, and empower O. P., of [and if an officer, add official addition],

to arrest and to surrender to the sheriff of the county of Y. Z., the within named defendant, in exoneration and discharge of my [or, our] undertaking as bail for the said Y. Z., in said cause; [and to employ such assistance as may be necessary for the purpose].2

[Date.]

[Acknowledgment, as in Form 822.]

[Indorse on certified copy of the undertaking.]

[Signature.]

FORM No. 984.

Notice of motion to exonerate bail.8

[Title of court and action.]

Please take notice, that on the annexed affidavit of C. D., veri

fied on the

day of

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cate of the sheriff of the county of

19 and the annexed certifi

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, and the undertaking of which a copy is herewith served, the undersigned will move, before the Hon. [one of the justices of this court — or,

county judge of the county of

next, at

*

o'clock in the

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to exonerate C. D. and E. F., the bail of the defendant in this action, from all further liability upon the undertaking of bail heretofore entered into by them; * and for such other and further relief as may be just.

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FORM No. 985.

Order excnerating bail who have surrendered.5

[Title of court and action."]

On reading and filing the affidavit of C. D., verified the day of

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19 from which it appears that said C. D., as bail of the defendant above named, has duly surrendered him to the custody of the sheriff of the county of

day of

, pursuant to law; and on reading and filing a certified copy of the undertaking of said bail, and the certificate of said sheriff annexed thereto, dated the 19 , acknowledging said surrender [and on reading and filing proof of due notice of this motion] and on hearing T. Z., in support of the motion, and A. T. [or, no one appearing] for in opposition thereto; now,

on motion of A. T., attorney for

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ORDERED, that said bail [naming them], of said defendant Y. Z., be and they are hereby exonerated and discharged from all liability.

[Date.]

[Signature of judge with initials of title.]

FORM No. 986.

Affidavit of debtor to move for exoneration of bail, who have been sued, and have surrendered after their time to answer has expired.8

[Title of court and action against the bail.]

Venue.]

Y. Z., being duly sworn, says:

I. That he is one of the above-named defendants herein.

II. That this action is brought upon an undertaking duly given upon defendant's arrest upon an order of arrest granted in an action in [this] court, wherein said plaintiff was plaintiff, and this deponent was defendant, and which was brought for [indicating that it was not replevin].

III. That deponent is informed, since this action was commenced, that an execution in said action against deponent's person was issued and returned "not found.”

5 Under N. Y. Code Civ. Pro., § 592, application for this order is to be made (upon notice to plaintiff's attorney) to a judge of the court or the county judge of the county where the action is triable.

6 Entitle in the action in which the

bail was given; unless they have been sued. See notes to tollowing Forms. 7 N. Y. Code Civ. Pro., § 592.

8 The motion should be made and the papers entitled in the action on the undertaking. Phelps v. Hall, 5 Johns. 367; Pell v. Jadwin, 3 Johns. 448; Barker v. Russell, 11 Barb. 303.

IV. That deponent had no knowledge or information of the same, before the commencement of the action, and never tried to evade the same; and deponent was invariably at his home or place of business in this city.

V. That this action was commenced about

19 [here set forth excuse for not surrendering before the expiration of the time to answer].

day of

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VI. That upon the 19, the defendants, E. and D., who were deponent's sureties on said undertaking, duly surrendered and delivered deponent into the custody of the sheriff of the county of to whom said order of arrest and execution was issued, and to whom said undertaking was given; and this deponent is now in said sheriff's custody as afore said.

[Jurat.]

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[Signature.]

[Annex corroborating affidavits, also showing date of answering, and the nature of defense; and add certificate of sheriff that defendant is in custody; and move, at Special Term, on notice; see N. Y. Code Civ. Pro., § 601.]

FORM No. 987.

Order giving bail leave to surrender after answer.

At a Special Term [etc., as in
Form 820 of this volume].

[Title of action against bail.]

Y. Z., verified the

certificate, dated the

day of
day of

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Upon reading and filing the affidavits of C. D., the defendant

due service of notice of motion

19 and the sheriff's

[and proof of or, of the order to show cause

granted herein], and after hearing T. Z., of counsel for the defendants, for the motion, and A. T. for the plaintiff [or, no one appearing], in opposition, and due deliberation being had; now, on motion of T. Z., attorney for

9 If the application for leave to surrender is made after answer, state in the affidavit that bail has not been indemnified. Mills v. Hildreth, 7 Hun, 298; again, 17 Hun, 297 (appeal from 7 Hun, dismissed in 81 N. Y. 91); Bank of Geneva v. Reynolds, 12 Abb. Pr. 81, 20 How. Pr. 18.

:

Unless some excuse for the failure to surrender the principal is shown, the motion will be denied. Denny t. Blumenthal, 8 Misc. 544, 28 N. Y. Supp. 744; Douglass v. Haberstro, 21 Hun, 320, 8 Abb. N. C. 230, appeal dismissed, 82 N. Y. 572.

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