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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 another 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 r. Becker, 84 N. Y. Supp. 1009.

71 After death of judgment creditor, the execution against the person may be issued by his personal representative, 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 v. Woodhead, 52 Hun, 127, 5 N. Y. Supp. 88, 17 Civ. Pro. Rep. 102.

72 Sustained in Walker r. 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 impris onment, as a condition of setting aside the execution, and to grant, in the alternative, leave to amend the execution nunc pro tune. But where the execution is void, the court has no such power. See Scofield v. Kreiser,

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 hereinafter mentioned resided] at

in this State.

II. That on or about the named plaintiff] A. B., of recovered judgment for

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in the county of

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in the county of

dollars against deponent, as appears

by the execution hereinafter referred to, for [here state the cause of action briefly]."

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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

proceedings were had that on the

, and thereupon such

day of

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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.

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[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 Civ. Pro. Rep. 294; Mayer v. Rothschild, 59 How. Pr. 510; Chapin v. Foster, 101 N. Y. 1. In Catlin v. Adirondack, 22 Hun, 493, it was held that such stipulation should not be required where a suit has already been brought and is on the calendar awaiting trial. See Guilleaume v. Rowe, 94 N. Y. 268, aff'g 63 How. Pr. 175, for an instance of a stipulation held void because obtained under duress by the statement that defendant "would have to stay in jail a long time" if he did not sign it.

73 N. Y. Code Civ. Pro., § 2185. Habeas corpus will lie to obtain a discharge from imprisonment under a void execution, or under one which has been issued in a case where it is

not authorized. See People ex rel. Harris v. Gill, 85 App. Div. 192, 83' N. Y. Supp. 135, aff'd, 176 N. Y. 606.

This in substance (supplying the allegation of a copy annexed, and of the filing of the papers), is the affidavit on which the order was granted in Pinckney v. Hegeman, 53 N. Y. 31.

Give notice of the motion, although the Supreme Court has power to vacate the execution ex parte. Pinckney v. Hegeman, supra.

74 Unless the discharge is sought because the action was brought or tried on a theory not authorizing a body execution; in which case the motion should be based on the judg ment-roll, or copies of the pleadings

annexed.

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.75

[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.]"

19,

[Or, if defendant is entitled to a supersedeas, under Code Civ. Pro., 572: That defendant was on the day of 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 execu tion 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

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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 19 said sheriff seized

day of

the body of this deponent thereunder.79

75 Such an objection may be raised by habeas corpus. People v. Gill, 85 App. Div. 192, 83 N. Y. Supp. 135.

76 The defendant upon this motion has a right to show the theory upon which the action was tried and decided. Booth r. Englert, 105 App. Div. 85, 94 N. Y. Supp. 700.

77 Code Civ. Pro., § 1489.

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78 See Hav. Sugar Ref. Co. r. Taussig, 44 Hun, 475, 19 Abb. N. C. 57, 12 Civ. Pro. Rep. 247; Sweet v. Norris, 45 Hun, 595, 19 Abb. N. C. 150, 12 Civ. Pro. Rep. 175; aff'd, 110 N. Y. 668; and cases cited in note 66 to Form 2223.

79 The sheriff has no power to ar 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.]80

[Jurat.]

FORM No. 2227.

[Signature.]

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.]

It appearing by the affidavit of the defendant Y. Z., dated the day of 19, that on or about the

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day of

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

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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. 552, 85 N. Y. Supp. 115, aff'd, 95 App. Div. 619.

80 Defendant is entitled to a discharge even though he has given bail. Hav. Sugar Ref. Co. v. Taussig, supra.

81 Sustained in Pinckney . Hegeman, 53 N. Y. 31.

82 This must be an order of the

court where the judgment was rendered under which he was arrested and imprisoned, or of the County Court of the county. See Hayes . Bowe. 65 How. Pr. 347.

83 This clause is not appropriate unless the execution, or its issue, is impeached.

ARTICLE III.

ENFORCING JUDGMENT FOR SPECIFIC RELIEF BY JUDICIAL SALE

I. JUDICIAL SALE.

OR OTHERWISE.

FORMS.

2228. Notice of sale of real property under a judgment.

2229. Admission of service of same. 2230. Affidavit on motion to stay sale. 2231. Notice of motion thereon. 2232. Order thereon.

2233. Notice of adjournment, or countermand, etc., for service. 2234. Affidavit of publication. 2235. Terms of sale.

2236-2238. Statements suitable to insert in foregoing Form.

2239. Memorandum of sale. 2240. Referee's report of sale. 2241-2246. Statements suitable to insert in foregoing Form. 2247. Receipt from plaintiff's attorney to referee for costs, and amount paid on mortgage. 2248. Exceptions to report of referee of sale.

2249. Notice of hearing of exceptions. 2250. Order confirming sale, and directing deficiency judgment. 2251. Affidavit to move to open sale. 2252. Notice of motion thereon. 2253. Order thereon.

2254, 2255. Statements suitable to insert or substitute in foregoing Form.

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I. JUDICIAL SALE.84

FORM No. 2228.

Notice of sale of real property under a judgment.85

[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

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in the above-entitled action, bearing date

84 For proceedings as to surplus, see ante, p. 1999, etc.

85 As to publication, see Volume I, p. 341. N. Y. Code Civ. Pro., § 1678; and Bechstein r. Schultz, 19 Abb. N. C. 168, 45 Hun, 191; Sanborn v.

66

Potter, 35 Minn. 449. What is a newspaper," see Volume I, pp. 355357. As to amending, Valentine f. McCue, 26 Hun, 456. If the property is not in a city in which a paper is published at least, weekly, post and

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