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FORM No. 796.

Requisition to replevy.87 To the sheriff'se of the county of

I hereby require you to replevy the chattels mentioned in the within [or, annexed] affidavit, from the defendant.8 [Date.] [Signature and office address of '],

Plaintiff's attorney. [To be indorsed upon or annexed to thie affidavit.] [Furnish sheriff with copy affidavit, requisition and undertak

ing for service.] [Also produce requisition and affidavit and return, on the trial;

and annex them to judgment-roll.91

FORM No. 797. Undertaking92 in claim and delivery (replevin). [Title of court and action.]

WHEREAS, affidavit has been made93 by [or, on behalf of] the plaintiff in this action, that the defendant therein wrongfully

87 Must be indorsed upon or an- title or right of possession superior to nexed to the affidavit. It is deemed the party to whom he was commanded the mandate of the court. $ 1694. to deliver it. Hoffman v. Conner, 76

The sheriff is protected in taking N. Y. 121. the property from the defendants, no 88 If the sheriff is a party, address matter to whom the property belongs to the coroner. Simcoke r. Frederick, and no action can be maintained ex- 1 Ind. 54 (sanctioning amendment in cept after affidavit or claim. Bullis this respect). N. Y. Code Civ. Pro., c. Montgomery, 50 N. Y. 353; Has $ 172. As to deputies, see supra, tings v. Nagel, 83 Hun, 205, 31 N. Y. pp. 372, 373. Supp. 598.

89 This is the usual form. McCarThis does not protect the sherifft! v r. Ockerman, 154 N. Y. 565. when he takes the goods from a per- 90 This requisition is good without son other than the defendant or his teste. Even if it were process (see agent, and such person has an owner. N. Y. Code Civ. Pro., 823) its authenship or special property in them. Otistication is specially prescribed by t. Williams, 70 N. Y. 208 ( case of a § 1694, and having such authenticawife pledgee of her husband's goods). tion, it is not, in a State court, void State v. Jennings, 14 Ohio St. 73. or voidable for omission in the teste. And the sheriff cannot be directed by Id., $ 24. It is “ deemed the mandate the court to take the property from of the court” (compare 8 3343, subd. the possession of a third person not 2) for the purpose of defining the shown to have any connection with power and duty of the sheriff. Id., the defendant. Lehman 1. Maver. 8 88 100-107, 2270. App. Div. 311, 40 V. Y. Sup. 933. 91 N. Y. Code Civ. Pro., 8 1717. Otherwise if the goods obviously be. 92 For general rules applicable to long to defendant and are merely in undertakings, see supra, p. 448. As the bare possession of a third person. to replevin bond, Bugle v. Myers, 59 Wells on Replev., 8 266. But under Ind. 73. an execution on the judgment, the 93 Error in stating the date of the sheriff must take the property if he affidavit, held not to invalidate the finds it in the hands of a third per obligation. Hyde v. Patterson, 1 Abb. son, unless he can justify lvis refusal Pr. 248. hy showing that such person had a

detains certain chattels in the said affidavit mentioned, of the value of

dollars, and the plaintiff claims the immediate delivery of such chattels to him:

Now, THEREFORE, in consideration®4 of the taking of said property, or any part thereof, by the sheriff of the county Ware the same may be found, by virtue of the said affidavit, and the requisition thereupon indorsed, we, the undersigned C. D., of [residence], and E. F., of [residence), do hereby jointly and severally undertake and become bound to the defendants in the sum of (not less than twice the aggregate value as stated in affidavit), for the prosecution of said action ;97 for the return of said chattels to the defendant, if possession thereof is adjudged to him, or if said action abates or is discontinued before said chattels are returned to the defendant;' and for the payment to the defendant of any sumo which the judgment awards to him against the plaintiff. [Date. ]

[Signature.] [ Acknowledgment or proof, as in Form 254; and affidavits of

sufficiency, as in Forms 252, 253.] {To be delivered by sheriff to the defendant if he delivers chattel to plaintiff. ]

FORM No. 798.

Approval of undertaking, by sheriff.4 I approve the within undertaking both as to its form and the sufficiency of the sureties therein.

[Signature of], [Date.]

Sheriff of

county. 94 Yo special consideration is neces. obligation. Parrott r. Scott, 6 Vont. sary (Harrison v. Utley, 6 Hun, 565), 340, 12 Pac, Rep. 763. A dismissal but the sureties will not be bound ex. by plaintiff is a breach. Id. cept upon a replevy. Pettit v. Allen, 98 The sureties are liable only if the 64 App. Div. 579, 72 N. Y. Supp. 287. chattels are taken by virtue of the

95 it is not essential that plaintiff requisition. Pettit v. Allen, 64 App. execute the undertaking (N. Y. Code Div. 579, 72 N. Y. Supp. 287. If the (iv. Pro., $ 811); even when the stat. chattel is not returned, the liability ute requires an undertaking "on be is for its value. Id. half of the plaintiff.” Hedderick 1. 99 Required by N. Y. Code Civ. Pro.. Poutet, 6 Mont. 345, 12 Pac. Rep. $ 1736. 765; S. P., supra, Chap. I, Art. VI, 1.Judgment of dismissal will not Bonds, p. 26. If he does, two sure- render sureties liable. Bown 0. ties besides are necessary. Burns v. Weppner, 62 Hun, 579, 17 N. Y. Supp. Robbins, 1 Code Rep. 62.

193. 06 Where the statute required a bond 2 This includes costs. Church Co. to the party, one to the sheriff was 0. Dorsey, 38 Misc, 542, 77 X Y. held void. Purple v. Purple, 5 Pick. Supp. 1065; Canlon r. Dixon, 14 Oreg. 226. See supra, p. 27.

293, 12 Pac. Rep. 394. 97 Omission here of the words 3 N. Y. Code Civ. Pro., $ 1708. “ without delay, and with effect," 4 The approval of the sheriff is a though contained in the Montana ministerial act and one for his prostatute, held not to invalidate the tection. But he cannot arbitrarils

FORM No. 799.

Notice of exception to sureties in replevin. [Title of court and action.]

Please take notice, that the defendant excepts to the plaintiff's sureties upon the undertaking for replevin herein [and to the form and sufficiency of said undertaking."] [Date.]

[Signature and office address of],

Defendant's attorney [or, if he has not appeared, of defendant,

or his agent or attorney.] [Address to],

Sheriff of county. [If not served within three days after the replevying and service

of copy, requisition, etc., all objections to sureties are waived.]?

FORM No. 800. Notice of justification of sureties in replevin. [Title of court and action.]

Please take notice, that the sureties in the undertaking for replevin given on behalf of the plaintiff herein will justify before Hon. J. K., one of the justices of this court, at

, on the day of next,' at o'clock in the noon. [Date.] [Signature and office address of]

Plaintiff's attorney.

refuse his approval. Nosser v. Cor win, 36 How. Pr. 540.

The sheriff should indorse his approval on the undertaking. Burns 0. Robbins, 1 Code Rep. 62.

5 A notice of exception to the sufflciency of the undertaking is not sufficient as a notice of exception to the sufficiency of the sureties. Young v. Colby, 2 Code Rep. 68.

The court has no power to inquire into the real value of the chattel, and compel the giving of an additional undertaking. U. S. Land Co. v. Bus. sey, 53 Hun, 516, 6 N. Y. Supp. 416, 17 Civ. Pro. 164,

Willetts, 1 Barb. 20; Decker r. Judson, 16 N. Y. 439, 443. See N. Y. Code Civ. Pro., $8 725, 730.

After the chattel has been delivered to plaintiff by the sheriff, plaintiff's undertaking being approved, or not having been excepted to, there seems to be no authority in the court to require plaintiff to give a new undertaking on the ground that his sureties have become insolvent. Hohenstein 1. Westm. Candle Co., 31 App. Div. 11, 52 N. Y. Supp. 235, 6 Anno. Cas. 16; Ludewig v. Dunsceith, 2 Law Bul. 97.

ON. Y. Code Civ. Pro., $ 1703. 7 Id.

Defect in an undertaking may be cured upon exception thereto. De Reguie v. Lewis, 3 Robt. 708; Smith t. McFall, 18 Wend. 521, 523.

It seems, the court will allow a new undertaking to be given nunce pro tunc, when the one given in the first instance is defective. Newland .

8 Within the county where the chattel was replevied or the county where one of the sureties resides. N. Y. Code Civ. Pro., 8 1705.

9 Not less than five or more than ten days thereafter. Code Civ. Pro., 88 578, 1705.

[If defendant has appeared, serve upon his attorney, otherwise

serre sheriff. Serie uithin ten days after exception to sureties.'']

FORM No. 801. Notice of abandonment of part of claim in replevin,11 [Title of cause and action.]

Please take notice, that the plaintiff herein abandons so much of his claim in this action as relates to the following chattels which have not been replevied, to wit (specifying them). [Date.] [Signature and office address of],

Plaintiff's attorney. [Address] To

Defendant's attorney.

FORM No. 802. Notice by defendant that he demands judgment for return or value of chattel

replevied.12 [Title of court and action.]

Please take notice, that the defendant herein demands judgment for the return of the property replevied herein and delivered

10 N. Y. Code Civ. Pro., $ 1703.

Further time may be given sureties to justify, but a new notice must be given. Burns t. Robbins, 1 Code Rep. 62.

The New York statute as to replevin (N. Y. Code Civ. Pro., $ 1705) provides as follows:

lne justification of sureties, as prescribed in either of the last two sections, must take place, either in the county where the chattel was replevied, or in the county where one of the sureties resides. The provisions, regulating the justification of bail, contained in article third of title first of chapter seventh of this act, govern, except as otherwise expressly prescribed in this artinia, with respect to the notice of justification of the sureties; the officer before whom they must instify; the substitution of new sureties or a new undertaking; the examination and qualifications of the sureties; and the allowance of the undertaking. But after the allow ance, the undertaking and examination must be delivered to the sheriff.

The provisions of chapter 7, here

referred to, are those regulating bonds and undertakings generally. See supra, pp. 25, 418.

I f the sureties fail to justify defendant is entitled to an immediate return of the chattels. Koerkle f. Pangburn, 30 Misc. 776, 62 N. Y. Supp. 814. The sheriff is personally liable if he delivers the chattels to the plaintiff, and the defendant prevails. Webb v. Hecox, 27 Misc. 169, 58 N. Y. Supp. 382.

11 Under N. Y. Code Civ. Pro.. $ 1719, serve with or before notice of trial, and produce on the trial.

This section does not permit a plaintif to abandon part of a cause of action for replevin, and subsequently waiving the tort as to that part and suing upon contract. Seeman v. Bandler, 26 Misc. 372, 56 N. Y. Supp. 210; Wile r. Brownstein. 35 Hun, 68.

12 Allowed by N. Y. Code Civ. Pro., $ 1725, to be served within the time allowed for service of a notice of trial. If served a copy should be produced on the trial with the pleadings. Id.

to the plaintiff [or, to a person not a party to this action], or for its value (with dollars damages for its detention]. [Date.] [Signature and office address of],

Defendant's attorney. [Address] To

Plaintiff's attorney.

FORM No. 803. Notice of motion; or order; for setting aside replevin (claim and delivery13).

[As in other notices of motion, continuing as to the object of the motion:] that the affidavit made by the plaintiff in this action, and the requisition to the sheriff of the county of , indorsed thereon, and all proceedings taken by the plaintiff and by the said sheriff, respectively, by virtue thereof, may be vacated and set aside as void [and irregular, in that — specifying irregularity complained of, as, that no chattels are described in said affidavit with sufficient accuracy or particularity to enable the sheriff to identify the same or to take them from defendant's possession, and that said affidavit fails to disclose whether the plaintiff's agent who made the same alleged the facts upon his personal knowledge, or on information and belief, and if the latter in not stating the sources of information and grounds of his beliefl4], and that the property taken by the said sheriff

Where the defendant's answer contains a demand for the return of the chattel, it is not necessary to serve this notice in order to be entitled to a judgment for such return. McCobb 0. Christeansen, 27 Misc. 825, 59 N. Y. Supp. 187; Rogers v. U. S. Fidelity, etc., Co., 84 N. Y. Supp. 203.

A defendant who does not retake the chattels, under Code Civ. Pro., $ 1704, must, if he wishes the chattels adjudged to be returned to him by the judgment, either demand the return in his answer, or serve the notice given in this form. Bown v. Weppner, 62 Hun, 579, 17 N. Y. Supp. 193; Freeman 1. U. S. Fidelity, etc., Co., 43 Misc, 364, 87 N. Y. Supp. 493.

13 Move before the court. It may be better to appear specially for the purpose of lue motion. Scc Ilyde v. Patterson, I Abb. Pr. 248. Compare McAdam v. Walbran, 8 Civ. Pro. Rep. 451.

As to grounds of motion, see Schwietering v. Rothchild, 26 App. Div. 614, 50 N. Y. Supp. 206 (insuffi.

ciency of description); McAdam v. Walbran (above — affidavit alleging demand verified before demand was made); O'Reilly v. Good, 18 Abb. Pr. 106, 42 Barb. 521; Niagara. Elev. Co. 0. McNamara, 2 Hun, 416, 4 Sup. Ct. (T. & C.) 604 (denying affidavit).

As to amending ailidavit or supplemental affidavit, Van Dyke v. N. Y. State Banking Co., 18 Misc. 661, 43 N. Y. Supp. 735; Depew v. Leal, 2 Abb. Pr. 131; Spalding v. Spalding, 3 How. Pr. 297, 1 Code Rep. 64.

A defendant in defauit cannot attack the sufficiency of the affidavit, if only an irregularity is complained of. Paddock v. Guyder, 8 N. Y. Supp. 905.

14 An irregularity which is not specified in the notice of motion or order to show cause may be disregarded. Van Dyke v. N. Y. State Banking Co., 18 Misc. '661, 43 N. Y. Supp. 735. A defect in an affidavit is such an irregularity. Id..; Kloh v. N. Y. Fertilizer Co., 36 Hun, 266, 33 N. Y. Supp. 343.

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