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FORM No. 2224.
Execution against the person to county.
Arrest the defendant and collect $ [continuing as in Form No. 2200, from $].
FORM No. 2225. Order vacating body execution on condition of stipulation not to sue, or, in
default thereof, execution to stand amended nunc pro tunc.72 [Title (court order) and recitals according to the case; see
Form No. 820, p. 1174.] ORDERED, that said motion be and hereby is granted provided and upon condition that the defendant stipulates not to sue for the arrest or for any imprisonment on or by virtue of said execution; and, in default of said stipulation being made and delivered to the plaintiff's attorney within five days after service of a copy of this order, it is ordered, that said execution be and the same hereby is amended nunc pro tunc as of the date when the same was issued, by inserting at the end of the line thereof the words “ the county of ," so that when so amended the said execution will recite that an “execution against the property of the judgment-debtor has been duly issued to the sheriff of the county of
the county where the said judgment-debtor resides, and returned unsatisfied ;” and as so amended that the said execution stand.
Enter: [signature of judge by initials of name and title.]
iff has no authority to go into an other county and make the arrest. Fisher v. Young, 41 Misc. 552, 85 N. Y. Supp. 115, aff'd, 95 App. Div. 619. Of course, executions may issue to various sheriffs simultaneously, or from time to time, until the defendant is taken.
The execution cannot issue against a woman, unless an order of arrest was granted in the action, and served. Code Civ. Pro., § 1488; Allen 1. Becker, 84 N. Y. Supp. 1009.
11 After death of judgment creditor, the execution against the person may be issued by his personal representa tive, or the present assignee of the judgment. The name and residence
of the person issuing the execution must be indorsed upon it. Code Civ. Pro., § 1376; Miller 1. Woodhead. 52 Hun, 127, 5 N. Y. Supp. 88, 17 Cir. Pro. Rep. 102.
72 Sustained in Walker c. Isaacs, 36 Hun, 233, 235, which held that upon vacating a body execution for irregularities therein that may be cured by amendment, the court has power to require the defendant to stipulate not to sue for false imprisonment, as a condition of setting aside the execution, and to grant, in the alternative, leare to amend the execution nunc pro tunc. But where the execution is void, the court has no such power. See Scofield r. Kreiser, 73 N. Y. Code Civ. Pro., $ 2185. body execution; in which case the Habeas corpus will lie to obtain a motion should be based on the judg. discharge from imprisonment under a ment-roll, or copies of the pleadings void execution, or under one which annexed. has been issued in a case where it is
FORM No. 2226. Affidavit to obtain discharge from execution against the person.73 [Title of court and cause.] [Venue.]
Y. Z., being duly sworn, says:
I. That he resides [and at the time of the application here inafter mentioned resided] at , in the county of in this State.
II. That on or about the day of , 19 , [the abovenamed plaintiff] A. B., of , in the county of recovered judgment for dollars against deponent, as appears by the execution hereinafter referred to, for [here state the cause of action briefly].74
III. [In case of a discharge of judgment by bankruptcy that thereafter, and on the petition of
proceedings in bankruptcy were duly commenced, and an adjudication that deponent was a bankrupt, was thereon duly had in the United States District Court for the district of , and thereupon such proceedings were had that on the day of , 19 , a discharge in bankruptcy was duly made and granted to deponent by Hon. , judge of said court; and that a certificate of said discharge is hereto annexed.
[Or in case of a discharge from imprisonment under State law, thus: That after said date this deponent duly commenced proceedings under the statute commonly known under art. 1 of tit. 1 of chap. xvii of the Code of Civil Procedure, and that all his debts and property, and other matters required by law, were 61 Hun, 368, 16 N. Y. Supp. 126, 21 not authorized. See People es rel. Civ. Pro. Rep. 294; Mayer t. Roths. Harris v. Gill, 85 App. Div. 192, 83 child, 59 How. Pr. 510; Chapin v. N. Y. Supp. 135, aff’d, 176 N. Y. 606. Foster, 101 N. Y. 1. In Catlin v. This in substance (supplying the Adirondack, 22 Hun, 493, it was held allegation of a copy annexed, and of that such stipulation should not be the filing of the papers), is the affirequired where a suit has already davit on which the order was granted been brought and is on the calendar in Pinckney r. Hegeman, 53 N. Y. 31. awaiting trial. See Guilleaume v. Give notice of the motion, although Rowe, 94 N. Y. 268, aff'g 63 How. the Supreme Court has power to Pr. 175, for an instance of a stipula vacate the execution ex parte. Pincktion held void because obtained under ney 1. Hegeman, supra. duress by the statement that defend 74 Unless the discharge is sought ant “would have to stay in jail a because the action was brought or long time" if he did not sign it. tried on a theory not authorizing a
duly set forth in his schedule; and after due course of law therein, and on the day of , 19, - or, the county court of the county of duly made and granted to deponent a full discharge from — all deponent's debts and from — imprisonment, pursuant to the provisions of said statute — of which discharge a copy is hereto annexed — and that the discharge and petition, schedules and other papers on which the said discharge was granted, were, on or before the day of , 19 , duly filed and recorded in the office of the clerk of the county of as by law required.]
[Or, in case defendant claims that no body execution could properly issue: That annexed hereto are copies of the pleadings in this action, from which it appears that the action is not one in which an execution against the person may issue.*5
[Or, in case defendant claims case was tried on a particular theory: That this action was tried as one for a — breach of warranty alone — and no evidence of fraud or deceit was introduced by the plaintiff, nor was any question of any fraud or deceit on defendant's part submitted to the jury.]76
[Or, if not issued to proper county: That defendant has been ever since said judgment was rendered a resident of county in this State - a county to which the property execution was not issued — and that he is not confined under any mandate.]”
[Or, if defendant is entitled to a supersedeas, under Code Cir. Pro., $ 572: That defendant was on the day of ,19, arrested under an order of arrest granted in this action by Mr. Justice J. K., and is still in custody — or, and thereafter gave an undertaking for bail which is still in full force; that the execution herein has not been issued within three months after entry of final judgment in this action.78
IV. That thereafter, and on or about the day of 19 , an execution against the person of the deponent was issued in the above-mentioned action to the sheriff of said county, and on or about the day of , 19 , said sheriff seized the body of this deponent thereunder. 19
75 Such an objection may be raised 78 See Hav. Sugar Ref. Co. r. Tausby habeas corpus. People r. Gill, 85 sig, 44 Hun, 475, 19 Abb. N. C. 57. App. Div. 192, 83 N. Y. Supp. 135. 12 Civ. Pro. Rep. 247; Sweet r. Nor.
76 The defendant upon this motion ris, 45 Hun, 595, 19 Abb. N. C. 150. has a right to show the theory upon 12 Civ. Pro. Rep. 175; aff'd, 110 X. Y. which the action was tried and de- 668: and cases cited in note 66 to cided. Booth r. Englert. 105 App. Form 2223. Div. 85, 94 N. Y. Supp. 700.
79 The sheriff has no power to ar. 77 Code Civ. Pro., & 1489.
rest the defendant outside of his own
(V. That thereupon this deponent exhibited to the said sheriff a certified copy of his said discharge, but said sheriff refused to recognize it, and took this deponent into custody under said execution, and he is now confined within the limits — or is now out on bail.] &o [Jurat.]
FORM No. 2227. Order discharging from execution a debtor who has been discharged from his
debts.81 [Title (court order82) and recitals according to the case; see
Form No. 820, p. 1174.]
, 19 , a judgment was obtained against him in the above cause; that since that time he has obtained a discharge [briefly describing it), duly granted or made by the Hon. on or about the day of ,19 , as appears by a certified copy of the said discharge annexed; and it further appearing that, on or about the day of , 19 , an execution against him was issued to the sheriff of the county of upon said judgment, and that on the day of , 19 , the said Y. Z. was taken into custody under said execution by said sheriff, and is still so held [or, confined within the limits], although said discharge was presented to him; Now, on motion of Q. R., of counsel for defendant Y. Z.:
ORDERED [that the execution against the person of said Y. Z. be and the same is set aside, and all proceedings thereunder be and are hereby enjoined ;83 and] that the said Y. Z. be discharged from the custody of the sheriff and from the limits; and that all proceedings taken by the sheriff be vacated, and the bond given by said Y. Z. and his sureties be canceled. This order to be without prejudice to the plaintiff in said action, taking all proper proceedings upon the said judgment; and the affidavit used on this motion to be filed and this order entered in the county where the venue of said action is.
Enter: [signature of judge by initials of name and official title.] county. Fisher v. Young, 41 Misc. court where the judgment was ren552, 85 N. Y. Supp. 115, aff'd, 95 App. dered under which he was arrested Div, 619.
and imprisoned, or of the County 80 Defendant is entitled to a dis. Court of the county. See Hayes ?'. charge even though he has given bail. Bowe, 65 How. Pr. 347. Hav. Sugar Ref. Co, v. Taussig, supra. 83 This clause is not appropriate
81 Sustained in Pinckney v. Hege- unless the execution, or its issue, is man, 53 N. Y. 31.
impeached. 82 This must be an order of the
ENFORCING JUDGMENT FOR SPECIFIC RELIEF BY JUDICIAL SALE
2256. Bond required as condition of 2228. Notice of sale of real property
ordering resale. under a judgment.
2257. Affidavit on the part of par2229. Admission of service of same.
chaser to move to be dis2230. Affidavit on motion to stay sale.
charged. 2231. Notice of motion thereon.
2258. Order discharging purchaser. 2232. Order thereon.
2259. – denying purchaser's motion. 2233. Notice of adjournment, or coun.
2260. Order directing resale, on purtermand, etc., for service.
chaser's default, and provid2234. Affidavit of publication.
ing for payment by him of 2235. Terms of sale.
deficiency, expenses, ete. 2236-2238. Statements suitable to in
2261. Order fixing amount of de sert in foregoing Form.
ficiency on resale, for which 2239. Memorandum of sale.
original purchaser is liable. 2240. Referee's report of sale.
2262. Affidavit to move to compel 2241-2246, Statements suitable to in
purchaser to complete his sert in foregoing Form.
purchase. 2247. Receipt from plaintiff's attorney
2263. Order compelling purchaser to to referee for costs, and
complete. amount paid on mortgage.
2264. Order awarding possession. 2248. Exceptions to report of referee of sale.
II. SPECIFIC ENFORCEMENT BY DELIY2249. Notice of hearing of exceptions.
ERY, ETC. 2250. Order confirming sale, and di 2265. Order that clerk deliver a conrecting deficiency judgment.
veyance, etc., deposited in 2.251. Affidavit to move to open sale.
court. 2252. Notice of motion thereon. 2266. — -- sheriff convey property, 2253. Order thereon.
etc. 2254, 2255. Statements suitable to in- 2267. Motion for receiver after judg. sert or substitute in forego
ment. ing Form.
1. JUDICIAL SALE.84
FORM No. 2228. Notice of sale of real property under a judgment.88 [Title of court and action.]
By virtue of a judgment [of foreclosure and sale — or, of partition and sale] duly made and entered in the office of the clerk of the county of , in the above-entitled action, bearing date
84 For proceedings as to surplus, Potter, 35 Minn. 449. What is a see ante, p. 1999, etc.
“ newspaper," see Volume I, pp. 35586 As to publication, see Volume I, 357. As to amending, Valentine 6. p. 341, N. Y. Code Civ. Pro., & 1678; McCue, 26 Hun, 456. If the property and Bechstein 1. Schultz, 19 Abb. is not in a city in which a paper is N. C. 168, 45 Hun, 191; Sanborn v. published at least, weekly, post and