a. Vacating injunction ex parte.-A supreme court judge or a county judge may vacate or modify ex parte an injunction order made by himself, but it is a power which should be exercised with caution (Peck v. Yorks, 41 Barb. 547; Bruce v. Delaware Canal Co. 8 How. 440; Nat. Gaslight Co. v. O'Brien, 38 How. 271). The provision in section 225, that the application may be made to a judge, is permissive merely, and does not abridge the general jurisdiction of the court. A motion to dissolve an injunction may be made directly to the court (Woodruff v. Fisher, 17 Barb. 230; Ramsay v. Erie R. R Co. 38 How. 193; and see Peck v. Yorks, 24 How. 363).

6. Motion to vacate.-Upon a motion to dissolve an injunction order, granted during the pendency of an action, under the last clause of section 219, the only question to be considered is that of fraudulent intent. Affidavits denying the debt sworn to by the plaintiff cannot properly be received. The effect of the temporary injunction that can alone be granted in such a case, is not to restrain any disposition whatever of the defendant's property, but only such a removal or disposition with an intent to defraud his creditors (Brewster v. Hodges, 1 Duer, 609).

c. On a motion to continue or to dissolve an injunction the order should be vacated, if upon all the evidence disclosed, the court would not have granted it in the first instance (Moser v. Polhamus, 4 Abb. N. S. 442). In cases of doubt the court will vacate the order (Secor v. Weed, 7 Rob. 67), Where a temporary injunction has been granted on notice before answer, it does not preclude a motion to vacate after the answer is put in (Hazard v. Hudson River Bridge Co. 27 How. 296). Where the verified complaint was before the judge at the time the order was granted, it may be referred to on motion to vacate the order (Turner v. Thompson, 2 Abb. 444).

d. On motion to vacate an injunction order granted without notice, founded on notice and upon the complaint, the affidavit upon which the injunction was granted, copy injunction order, copy affidavit of the plaintiff, and copies of the pleadings, the moving party is not obliged to prove the existence of a suit and an injunction, proof of service of notice of motion is all that is required (Newbury v. Newbury, 6 How. 182). On he motion to vacate, a verified answer may be read as an affidavit (Krom v. Hogan, 4 How. 225; Schoonmaker v. Ref. Dutch Church, 5 id. 216; Minor v. Terry, 6 id. 210). The motion may be made and opposed upon affidavits of any number of witnesses; and it is a matter of discretion, upon balancing the evidence adduced, to dissolve it or not (Minor v. Terry, 6 How. 211; Crocker v. Baker, 3 Abb. 183; Malcomb v. Miller, 6 How. 456). The burden of proof is on the party having the affirmative (Shearman v. Hart, 14 Abb. 358). The moving party may introduce affidavits to contradict new matter introduced by his opponent, but the moving party may not introduce new matter in avoidance of that set up by his opponent (Shearman v. Hart, 14 Abb. 358; Childs v. Fox, 2 Rob. 650; 18 Abb. 112. See § 226).

e. Must all defendants answer before moving to dissolve injunction on answer? (Mallett v. Weybossett B'k, 1 Barb. 217.)

f. Verified answer denying equities of complaint.-It has been held that a preliminary injunction cannot be sustained when all the equities of the complaint are denied by the answer (Finnegan v. Lee, 18 How. 186; Blatchford v. N. Haven R. R. Co. 5 Abb. 276; see Durant v. Ernstein, 5 Rob. 424). Or where the only ground on which the injunction can be sustained is denied in the answer (Gould v. Jacobsohn, 18 How. 158). According to the practice prior to the code, an injunction would not be dissolved on the coming in of the answer, unless the defendants positively denied all the equity of the bill. A denial on information and belief was not sufficient (Ward v. Van Bokkelin, 1 Paige, 100; Apthorpe v. Comstock, Hopk. 148; Wakeman v. Gillespy, 5 Paige, 112; Att'y Gen'l v. Cohoes Co. 6 Paige, 134). Wherethe answer did not deny the facts charged in the bill positively and fully, although the denial was as full as could be given by the party under the circumstances, the injunction would not be dissolved (Roberts v. Anderson, 2

Johns. Ch. Rep. 204). And even when all the equity of the bill was denied by the answer, it was not a matter of course to dissolve the injunction, as the granting and continuing an injunction always rested in the sound discretion of the court, to be governed by the nature of the case (ib.; Moore v. Hylton, Dev. Equity Rep. 429; Bank of Monroe v. Schermerhorn, 1 Clarke Ch. R. 303). The statement of the defendant had to be at least credible. Any evasion in not responding to the charges in the bill, or an extreme improbability in the statement of the defendant, would induce the court to retain the injunction (Moore v. Hylton, supra; Williams v. Hall, 1 Bland, 195; Storer v. Coe, 2 Bosw. 661; Secor v. Weed, 7 Rob. 67). So, if the defendant's answer was contradictory (Tong v. Oliver, 1 Bland, 199; see Litchfield v. Pelton, 6 Barb. 188). And if the equity of the bill was not charged to be in the knowledge of the defendant, and the defendant merely denied all knowledge and belief of the facts alleged therein, the injunction would not be dissolved on the bill and answer alone (Rogers v. Rogers, 1 Paige, 426). So, if the court could see in the facts disclosed in the answer, good reason for retaining the injunction, it would be retained, notwithstanding a full denial of the equity of the bill (Bank of Monroe v. Schermerhorn, 1 Clarke Ch. R. 303; see Dubois v. Budlong, 15 Abb. 445; 10 Bosw. 700; Clark v. Law, 22 How. 426).

a. It was a general rule, however, that if the facts on which the complainant's equity rested were positively denied the injunction must be dissolved (Gibson v. Tilton, 1 Bland, 355; see Falconer v. Elias, 3 Sand. 731; Perkins v. Warren, 6 How. 349; see Schermerhorn v: Merrill, 1 Barb. 511). The answer was sufficient if it disapproved the facts in the bill (M'Farland v. McDowell, 1 Car. Law Repos. 110). It needed not to invalidate by full proof the facts in the bill. The defendant needed only to show that the evidence of the complaint was entitled to no credit (North's Ex'rs v. Perrow, 4 Rand, 1).

b. An injunction against a corporation could not be dissolved on bill and answer (Fulton Bank v. N. Y. and Sharon Canal Co. 1 Paige, 311).

c. A defendant might answer an injunction bill, on oath, for the purpose of moving thereon for a dissolution of the injunction, although an oath was waived or was not necessary. But such answer had no other or greater force as evidence than the bill (Manchester v. Day, 6 Paige, 295; Dougrey v. Top

94).

ping, 4iday in contempt may move to vacate.-"It is no answer

to a motion to dissolve an injunction, to show that the defendant has violated it" (Smith v. Reno, 6 How. 124; Smith v. Austin, 1 Code Rep. N. S. 137; Field v. Chapman, 13 Abb. 320; Field v. Hunt, 22 How. 330; Gurnee v. Odell, 13 Abb. 264; and see 4 How. 225; 1 Clarke Ch. R. 28).

e. Vacation of injunction for nonprosecution.—A want of due diligence in prosecuting the action, was in the former practice a cause for dissolving the injunction (De Peyster v. Graves, 2 Johns. Ch. R. 204; Higgins v. Woodward, Hopk. 342; Secbor v. Hess, 5 Paige, 85). But only as to the defendants served with process; for a neglect to serve the summons and injunction order on some of the defendants, was not a ground for dissolving the injunction as to those served (5 Paige, 85). And omitting to serve some defendants gave no right to those served to move to vacate the injunction for that cause (id) The court would not vacate the injunction for neglect of the plaintiff to prosecute the action where the defendant might himself proceed (Schermerhorn v. Merrill, 1 Barb. 511).

f. Appeal. From an order to show cause, granted ex parte and granting a restraint in the mean time, no appeal lies to the general term, until a hearing has been had on the order to show cause, or on a motion to vacate or modify such order (Schell v. Erie R. R. Co. 51 Barb. 273).

g. A motion to vacate an injunction "and for other and further relief," was denied at special term, and on an appeal the general term ordered an additional defendant to be joined in the action, held regular (Martin v. Kanouse, 2 Abb. 390). See note to section 226.

§ 226. (Am'd 1870.) Affidavits to oppose motion.

The application mentioned in the last section may be opposed by affidavits, or other proofs, in addition to those on which the injunction was granted.

CHAPTER IV.

Attachment.

SECTION 227. Foreign corporations, nonresident or absconding or concealed defendants. Action when commenced.

228. Attachment, by whom granted.

229. In what cases attachments may be issued. Affidavits to be

filed.

230. Security on obtaining attachment.

231. Attachment, to whom directed, and what to require.

232. Mode of proceeding in executing attachment.

233. Proceedings in case of perishable property or vessels.

234. Interest in corporations or associations liable to attachment.

235. Attachment, how executed on property incapable of manual

delivery.

336. Certificate of defendant's interest to be furnished.
237. Judgment, how satisfied.

238. When action to recover notes, &c., of defendant may be
prosecuted by the plaintiff in the action.

239. Bond to sheriff on attachment, how disposed of on judgment
for defendant.

240. Discharge of attachment, and return of property or its pro-
ceeds to defendant, on his appearance in the action.
241. Undertaking on the part of defendant.

242. When sheriff to return attachment with his proceedings
thereon.

243. Sheriff's fees.

§ 227. (Am'd 1857, 1866.) Foreign corporations, nonresident or absconding or concealed defendants.

In an action arising on contract for the recovery of money only, or in an action for the wrongful conversion of personal property, against a corporation created by or under the laws of any other State, government, or country, or against a defendant who is not a resident of this State, or against a defendant who has absconded or concealed himself, or whenever any person or corporation is about to remove any of his or its property from this State, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete any of his or its property with intent to defraud creditors, as hereinafter mentioned, the plaintiff, at the time of issuing

the summons, or any time afterwards, may have the property of such defendant or corporation attached, in the manner hereinafter prescribed, as a security for the satisfaction of such judgment as the plaintiff may recover; and for the purposes of this section an action shall be deemed commenced when the summons is issued; provided, however, that personal service of such summons shall be made, or publication thereof commenced within thirty days.

a. New remedy.-"The attachment authorized by this chapter is a new remedy which did not exist under the old system. Unlike the attachment against absent or absconding debtors under the revised statutes, which was for the benefit of all the creditors, and as to which the jurisdiction of the justices of the superior court is not taken away (Renard v. Hargous, 13 N Y. 259), this attachment is for the benefit of the individual creditor (Frazer v. Greenhill, 3 Code Rep. 172; Fisher v. Curtis, 2 Sand. 68; Furman v. Walter, 13 How. 348; Mechanics B'k of Jersey City v. Dakin, 50 Barb. 587). But the provisions of the revised statutes concerning attachments against foreign corporations, and absconding, concealed, and nonresident debtors, and the remedies provided by the revised statutes, may be pursued in appropriate cases. See Renard v. Hargous (2 Duer, 540).

b. The remedy afforded by this chapter is not merely cumulative. It is the only remedy in the cases prescribed (Skinner v. Stuart, 39 Barb 206).

c. Foreign corporation.—A national bank is a foreign corporation within the meaning of this section (Cook v. State Nat. B'k of Boston, 50 Barb. 339; 3 Abb. N. S. 339; Bowen v. First Nat. B'k of Medina, 36 How. 408). "A foreign corporation is not authorized, either by the code or the revised statutes, to sue another foreign corporation in the courts of this State by attachment, unless the cause of action has arisen or the subject of the action is situate within this State" (Western Bank v. City Bank of Columbus, 7 How. 238). Where a note was made at the office of the defendants in the State of Iowa and was payable at a bank in the city of New York, held the cause of action arose out of the State (Cantwell v. Dubuque West. R. R. Co. 17 How. 16).

d. A nonresident plaintiff cannot have an attachment against a foreign corporation unless the cause of action arose within the State (Id.; and see McDonough v. Phelps, 15 How. 372). It is not necessary in an attachment against a foreign corporation under laws of 1842, ch. 197, to serve a copy of the proof upon one to whom lands have been conveyed in trust for the corporation (Wright v. Douglass, 7 N. Y. 564; Willett v. Equit. Ins. Co. 10 Abb. 193); in an action on a policy issued and delivered in this State, the cause of action arises within this State (Burns v. Provincial Ins. Co. 35 Barb. 525; 13 Abb. 425).

e. Where the demand upon which the action was brought arose upon written contracts for the payment of money, executed and delivered and payable in Canada; and all the work done and materials furnished were under those contracts, and upon work located in Canada, for a corporation created by the laws of Canada, and existing there, except a small part of the labor, which was performed in this State under said contracts,-held not to be the case where the cause of action arose in this State, and although the defend ant, the foreign corporation, had property in this State liable to attachment, the attachment could not be sustained by a nonresident plaintiff (Campbell v. Proprietors of Champlain R. R. 18 How. 413; and see Whitehead v. Buffalo &c. R. R. Co., 18 How. 218; Harriott v. N. J. R· R. Co., 8 Abb. 284).

f. As to proceedings against Great West. R. R. of Canada, see Laws 1857,

p. 188.

a. Lien of attachment.-An attachment binds real estate from the time of being levied (Burkhardt v. McClellan, 15 Abb. 243, note); and upon personal estate from the time when it is allowed (Thacher v. Bancroft, 15 Abb. 243: see, however, Kuhlman v. Orser, 5 Duer, 250). For the purpose of securing the lien on real estate as against the defendant, it is only necessary that it should be included in the inventory returned by the sheriff; he is under no necessity to enter upon the land, or see it, or go into its vicinity, nor do any other act than return it in his inventory (Learned v. Vandenburg, 7 How. 381; affirmed, 8 id. 77; Yale v. Matthews, 20 How. 430; 12 Abb. 379). But to secure the lien as against subsequent bona fide purchasers notice under § 132 must be filed. In respect to personal property, it is otherwise. To render the seizure effectual it must be accompanied by possession. The sheriff is bound to see that it is safely kept, to satisfy the judgment when recovered. He must, therefore, not only seize the property, but take it into his custody (lb.) Where there are several attachments against the same property, they will have priority according to the order of their delivery to the sheriff (Mechanics B'k of Jersey City v. Dakin, 50 Barb. 587). An attachment in an action on a money bond payable by installments, is a lien only for the installments actually due (Syracuse B'k v. Coville, 19 How. 385). A sheriff acquires a lien upon property levied on by him under attachment, which constitutes a qualified or special title. He is thereby authorized to hold possession until the demands for which the attachment issued are paid, or until judgment and sale thereunder of the property seized (Rhoades v. Woods, 41 Barb. 471). By the issuing of an attachment the plaintiff obtains such a lien upon the property attached as entitles him to the intervention of equity to set aside any fraudulent obstacles to the enforcement of his lien (Greenleaf v. Mumford, 19 Abb. 469; 30 Hów. 30; Hall v. Stryker, 27 N. Y. 596; Renshey v. Stryker, 28 N. Y. 45; 26 How. 140; 31 N. Y. 140; B'k of Mut. Redemp. v. Sturgis, 9 Bosw. 601; Kelly v. Line, 42 Barb. 594; Frost v. Mott, 34 N. Y. 253; Clapp v. Mott, ib.) Where no lien is obtained on a fund by the attachment, no action can be maintained either by the sheriff or the attachment creditor to have the attachment declared a lien (Greenleaf v. Mumford, 35 How. 148; 4 Abb. N. S. 130).

b. Summons issued.—A summons may be considered as issued if made out and placed in the hands of a person authorized to serve it, and with a bona fide intent to have it served (Mills v. Corbett, 8 How. 500).

c. Jurisdiction.-The supreme court acquires jurisdiction from the time of the allowance of the attachment (Burkhardt v. Sandford, 7 How. 329). In actions within subdivision 2 of section 33 ante, the superior court of New York has no jurisdiction whatever, unless the defendant is a resident of the city of New York, or if he be a nonresident, is personally served with the summons within that city; therefore, where the defendant is a nonresident of that city, the issuing of an attachment and levy upon his property thereunder before the personal service of the summons upon him is wholly unauthorized (Zeregal v. Benoist, 33 How. 129; see Cole v. Kerr, 2 Sand. 660; Gould Bryan, 3 Bosw. 626; Kerr v. Mount, 28 N. Y. 659). But the attachment becomes valid so soon as the summons is personally served; therefore, after service of the summons a motion to set aside the judgment cannot be granted; the most that could be done in such a case would be to set aside the levy (Zeregal v. Benoist, 7 Rob. 199).

§ 228. Warrant, by whom granted.

A warrant of attachment must be obtained from a judge of the court in which the action is brought, or from a county judge.

d. Process.-Is the warrant process? (Morgan v Avery, 2 Code Rep. 91; Conklin v. Dutcher, 1 Code Rep. N. S. 49; Camman v. Tompkins, 12 Barh. 265; Frazer v. Greenhill, 3 Code Rep. 172; Niles v. Vanderzee, 14 How. 549;