Obrázky stránek

how ascer

show cause


injunction, if the court shall finally decide that the plain-Damages, tiff was not entitled thereto. The damages may be ascer- tained, tained by a reference, or otherwise, as the court shall direct.

The undertaking must be approved and filed with the clerk of the court. A non-resident plaintiff must give a resident surety who can justify. Shel. don vs. Alberton, 1 Sand. 700.

§ 223. [Sec. 196.] If the court or judge deem it proper order to that the defendant, or any of the several defendants, should why in

junction be heard before granting the injunction, an order may be should not

be granted. made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the 1849. defendant may in the meantime be restrained.

The defendant may read in opposition to the motion, the affidavits of third persons, although he has put in his answer denying the whole merits of the complaint. The answer in such case is only used as an affidavit. Florence vs. Bates, 2 Sand. 675.

§ 224. [Sec. 197.) An injunction to suspend the general Security, and ordinary business of a corporation, shall not be grant-junction to ed, except by the court or a judge thereof. Nor shall it be business of

corporation granted, without due notice of the application therefor, to the proper officers of the corporation, except where the peo- 1849. ple of this state are a party to the proceeding, and except in proceedings to enforce the liability of stockholders in corporations and associations for banking purposes, after the first day of January, one thousand eight hundred and fifty, as such proceedings are or shall be provided by law, unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be approved by the court or judge, to the effect that the plaintiff.will pay all damages, not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain, by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference or otherwise, as the court shall direct.

upon in


Motion to vacate or

§ 225. [Sec. 198.] If the injunction be granted by ajudge modify in- of the court, or by a county judge, without notice, the dejunction.

fendant at any time before the trial, may apply, upon notice, to a judge of the court in which the action is brought, to vacate or modify the same. The application may be made upon the complaint and the affidavits on which the injunction was granted, or upon affidavits on the part of the defendant, with or without the answer.

An appeal from an order granting an injunction, does not stay the injunction; and if the defendant violate it, pending the appeal, an attachment will

ue against him. Stone vs. Carlan and others, 2 Sand, 738; S. C., 3 3 Code Rep. 103.

What proof is necessary? See Osborn vs. Lobdell, 2 Code Rep. 77. Affidavits,

$ 226. [Sec. 199.] If the application be made upon affidaon motion. vits on the part of the defendant, but not otherwise, the

plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the injunction was granted.

Pleadings when verified to be considered affidavits on this motion, Florence vs. Bates, 2 Sand. 675; Schoonmaker agt. the minister, &c., of the church of Kingston, 5 How. 265; Krom agt. Haydan and others, 4 How. 225; S. C. 2 Code Rep. 144. Contra, Hartwell vs. Kingsley, 2 Sand. 674, and note; Roome and another vs. Webb, 3 How, 327; Servoss vs. Stunnard, 2 Code Rep. 56. Although the cases disagree as to whether pleadings duly verified may

be read and considered as affidavits, on a motion to dissolve an injunction, they all agree that a complaint duly verified is not such an affidavit as would be sufficient to authorize the issuing an injunction. See seětion 220 and notes.



SECTION 227. Property of foreign corporations and of non-resident or ab.

sconding or concealed defendants may be attached.
228. Warrant by whom granted.
229. In what cases warrant may be granted.
230. Security on obtaining warrant.
231. Warrant, to whom directed, and what to require.
232. Mode of proceeding in executing warrant.
233. Proceeding 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

236. Certificate of defendant's interest to be furnished by corpo.

237. Judgment, how satisfied.
238. When action to recover notes, &c., of defendant may be

prosecuted by plaintiff in the action in which the attach.

ment issued.
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 action.
241. Undertaking on the part of the defendant.
242. When sheriff' to return warrant and proceedings thereon.
243. Sheriff's fees.

[ocr errors]

of non-re

ed defend

$ 227. In an action for the recovery of money, against Property of a corporation created, by or under the laws of any other corpora. state, government, or country, or against a defendant who sident or

absconding is not a resident of this state, or against a defendant who or conceal has absconded or concealed himself as hereinafter men- ants may

be attached tioned, the plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of such 1849. defendant attached, in the manner hereinafter prescribed, as a security for the satisfaction of such judgment as the plaintiff may recover.


In what cases attachment may issue. Hernstein agt. Matthewson, 5 How. 196; Burrows vs. Miller and others, 4 How. 349; Brewster and others vs. Honigsburger and others, 2 Code Rep. 50; Morgan vs. Avery id. 91 ; Conk. lin and Conklin agt. Dutcher, 5 How. 386; Morgan vs. Avery, 7 Barb. 656.

The attachment may be served after the summons, Hulbert vs. the Hope Mutual Ins. Co. 4 How. 275.

Attachments cannot be issued in the Superior Court (N. Y. city) except in cases where the court has jurisdiction. Fisher and others vs. Curtis, 2 Sand. 660; S. C. 2 Code Rep. 62.

Wasrant, by whom granted. Passed 1849.

In what

be issued.

Passed 1649

Security on obtaining

Passed 1649.

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

§ 229. The warrant may be issued whenever it shall rant may appear by affidavit, that a cause of action exists against

such defendant, specifying the amount of the claim, and the grounds thereof, and that the defendant is either a foreign corporation, or not a resident of this state, or has departed therefrom with intent to defraud his creditors or to avoid the service of a summons, or keeps himself concealed therein with the like intent.

$ 230. Before issuing the warrant, the judge shall rewarrant. quire a written undertaking on the part of the plaintiff,

with sufficient surety, to the effect, that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain, by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be at least two hundred and fifty dollars.

$ 231. The warrant shall be directed to the sheriff of any rected, and county in which property of such defendant may be, and shall quire.

require him to attach and safely keep all the property of such

defendant within his county, or so much thereof as may be Amended sufficient to satisfy the plaintiff's demand together with costs

and expenses. The amount of which must be stated in conformity with the complaint, together with costs and expenses. Several warrants may be issued at the same time to the sheriffs of different counties.

$ 232. The sheriff to whom such warrant of attachment proceeding in execu.° is directed and delivered, shall proceed thereon in all re

spects, in the manner required of him by law in case of attachments against absent debtors, shall make and return an inventory, and shall keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such action, and

Warrant to whom di

Passed 1849.


Mode of


Passed 1849.

ings in case

ble proper

ty or ves sels.



liable to altachinent.

Passed 1849.

shall, subject to the direction of the court or judge, collect and receive into his possession all debts, credits and effects of the defendant. The sheriff may also take such legal proceedings, either in his own name or in the name of such defendant, as may be necessary for that purpose, and discontinue the same at such times and on such terms as the court or judge may direct.

§ 233. If any property so seized shall be perishable, or if Proceedany part of it be claimed by any other person than such de- of perishafendant, or if any part of it consist of a vessel, or of any share or interest therein, the same proceedings shall be passed had in all respects as are provided by law upon attachments against absent debtors.

$ 234. The rights or shares which such defendant may Interest in have in the stock of any association, or corporation, to-tionis oras. gether with the interest, and profits thereon, and all other property in this state of such defendant, shall be liable to be attached and levied upon and sold to satisfy the judgment and execution.

$ 235. The execution of the attachment upon any such Attachrights, shares, or any debts or other property incapable of executed manual delivery to the sheriff, shall be made by leaving a manual

incapable certified copy of the warrant of attachment with the president or other head of the association or corporation, or Passed the secretary, cashier, or managing agent thereof, or with the debtor or individual holding such property, with a notice showing the property levied on.

§ 236. Whenever the sheriff shall with a warrant of at- Certificate tachment, or execution against the defendant, apply to ant's intersuch officer, debtor or individual, for the purpose of at-furnished taching, or levying upon, such property, such officer, debtor, or individual, shall furnish him with a certificate Passed under his hand, designating the number of rights or shares of the defendant in the stock of such association or corporation, with any dividend, or any incumbrance thereon, or the amount and description of the property, held by such

ment, how

on property

of delivery.


of defend

est to be

by corporations.


« PředchozíPokračovat »