erty where the liability arose, in whole or in part, in consequence of the false statements of the defendant as to his responsibility or credit, in writing, under the hand or signature of the defendant or his authorized agent, made with his knowledge and acquiescence. In order to entitle the plaintiff to a warrant of attachment, in the case specified in this section, he must show, by affidavit, o the satisfaction of the judge granting it, that a sufficient cause of action exists against the defendant for a sum stated in the affidavit.

In effect September 1, 1894; Laws 1894, ch. 736.

§ 638. [Amended, 1877.] When and by whom the warrant may be granted. The warrant may be granted by a judge of the court, or by any county judge, to ac company the summons, or at any time after the commencement of the action, and before final judgment therein.(1) Personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days after the granting thereof;(2) or else, before the expiration of the same time, service of the summons by publication must be commenced, or service thereof must be made without the State, pursuant to an order obtained therefor, as prescribed in this act; and if publication has been, or is thereafter commenced, the service must be made com. plete, by the continuance thereof. See § 435-7.

Substitute for Co. Proc., 228, and the latter part of 227. (1) Wabb . Balley, 54 N. Y. 164: Woodward v. Stearns, 10 Abb. N. 8. 395. (2) Taddiken v. Cantrell, 4 T. & C. 222; Waffle v. Gobie, 53 Barb. 517; Simson v. Burch, 4 Hun, 315.

§ 639. [Amended, 1877.] Affidavits to be filed.The plaintiff procuring the warrant must, within ten days after the granting thereof, cause the affidavits, upon which it was granted, to be filed in the office of the clerk.

Co. Proc. last sentence of 229. See 2, subd. 4, temporary act, post. Brash v. Wielarsky, 36 How. 253.

$640. Security on obtaining warrant. The judge, before granting the warrant, must require a written undertaking, on the part of the plaintiff, with sufficient sureties, to the effect, that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs, which 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 must be at least two hundred

and fifty dollars. But this section does not apply to a case, where the action is brought for a cause specified in section 637 of this act, or where it is specially prescribed by law that security may be dispensed with, or where the security to be given is specially regulated by law. See. § 811.

Co. Proc., 230, am'd. Whitney v. Deniston, 2 T. & C. 471; Kissam v. Marshall, 10 ALb. 424; In re Heller, 41 How. 213; Bennett v. Brown, 4 N. Y. 254. Sureties: Leffingwell v. Chave, 5 Bosw. 703; Courter v. McNamara, 9 How. 255; Askins . Hearns, 3 Abb. 184; Kaiser v. Richardson, 5 Daly, 301. Action on: Beldersee v. Aden, 12 Abb. N. S. 324; 8. c., 62 Barb. 175; 2 Wait's Pr. 153.

§ 641. Contents of warrant; to whom directed. -The warrant must be subscribed by the judge and the plaintiff's attorney,(1) and must briefly recite the ground of the attachment.(2) It may be directed, either to the sheriff of a particular county, or, generally, to the sheriff of any county. It must require the sheriff to attach and safely keep, so much of the property, within his county, which the defendant has, or which he may have, at any time before final judgment in the action, as will satisfy the plaintiff's demand, with costs and expenses. The amount of the plaintiff's demand must be specified in the warrant, as stated in the affidavit. Warrants may be issued at the same time, to sheriffs of different counties.

Id., 231, am'd and enlarged. Ante, 55. (1) Genin v. Tompkins, 18 Barb. 265; Greenleaf v. Mumford, 19 Abb. 469; s. c., 30 How. 30; Kissam v. Marshall, 10 Abb. 424. (2) See Mayor v. Genet, 63 N. Y. 646: Delaney v. Brett, 1 Abb. N. 8. 421.

§ 642. Validity of undertaking. - It is not a defence to an action upon an undertaking, given upon granting a warrant of attachment, that the warrant was granted improperly, for want of jurisdiction, or for any other

cause.

New. Overrules Cadwell v. Colgate, 1 Barb. 253; Beldersee v. Aden, 12 Abb. N. 8. 324; and see Coleman v. Bean, 1 Abb. App. Dec. 894, and Onderdonk v. Voorhies, 36 N. Y. 358.

ARTICLE SECOND.

EXECUTING THE WARRANT, PENDING THE ACTION.

Sac. 644, Sheriff must attach property of defendant.

645. What interest in real property may be attached.

446. Attachment of unpaid subscription to foreign corporation. 47. Id.; interest in corporation.

648. Id.; bond, note, etc.

SEC. 649. How property to be attached.

650. Certificate of defendant's interest to be furnished.
651. Person refusing certificate may be examined.

652. Rights of owner or master of vessels by which goods have been shipped.

663. Foregoing section not to apply in certain cases

654. Sheriff must make inventory.

655. Sheriff may maintain actions.

656. Perishable goods and animals to be sold.

657. Claim of property; how tried.

658. Proceedings, if claimant succeeds.

659. Finding, not to prejudice right of claimant.

660. Proceedings on claim to domestic vessel.

661. Appraisers to be sworn; valuation to be returned.
662. Undertaking to be given.

663. Vessel; when to be discharged.

664. When undertaking to be sued.

665. Defence in such an action; plaintiff's recovery.

666. Foreign vessel; how valued.

667. Notice thereof.

668. Plaintiff to give undertaking with sureties.

669. Vessel; when to be discharged.

670. Terms on which debtor may claim vessel.

671, 672, 673. When vessel to be sold.

674. Sheriff to keep property.

675. Sheriff may be directed to pay money into court.

676. When he may be directed to release or deliver property.

677. Plaintiff may bring action in name of himself and the sheria.

678. How leave to bring such an action procured.

679. Plaintiff may be joined with sheriff, after action commenced
680. Judge to direct as to management of such an action, etc.
681. Return of inventory; how enforced.

8643. [Repealed, 1877.]

8644. Sheriff must attach property of defendant. The sheriff must immediately execute the warrant, by levying upon so much of the personal and real property of the defendant, within his county, not exempt from levy and sale by virtue of an execution, as will satisfy the plaintiff's demand, with the costs and expenses. He must take into his custody all books of account, vouchers, and other papers, relating to the personal property attached, and all evidences of the de fendant's title to the real property attached, which he must safely keep, to be disposed of, as prescribed in this title. The sheriff, to whom a warrant of attachment is delivered, may levy, from time to time, and as often as is necessary, until the amount, for which it was issued, has been secured, or final judgment has been rendered in the action, notwithstanding the expiration of his term of office.

Co. Proc., part of 232, and 2 R. S. 4,7 (2 Edm. 4), am'd. Kelly. Breasing, 33 Barb. 123; Rob v. Moffat, 3 Johns. 257; People v. Schuyler, 5 Barb. 166; Smith. Orser, 43 id. 18; Frost v. Mott, 34 N. Y. 253 Chamberlain Beller, 18 id. 115; Lummis v. Kasson, 43 Barb. 7

2

25 2

1592

Rogers v. Weir, 34 N. Y. 463; Ransom v. Halcott, 18 Barb. 56; McKay
Harrower, 27 td. 473: Thomp. Pro. Rem. 399; Lynch v. Crary, 52 N.
Y. 181; U. S. v. Graff, 4 Hun, 634.

§ 645. What interest in real property may be attached. The real property, which may be levied upon by virtue of a warrant of attachment, includes any interest in real property, either vested or not vested which is capable of being aliened by the defendant.

New Lee v Hunter, 1 Paige, 519; Rodgers v. Bonner, 45 N. Y. 379.

646. Attachment of unpaid subscription to foreign corporation. Under a warrant of attachment against a foreign corporation, other than a corporation created by or under the laws of the United States, the sheriff may levy upon the sum remaining unpaid upon a subscription to the capital stock of the corporation, made by a person within the county or upon one or more shares of stock therein, held by such a person, or transferred by him, for the purpose of avoiding payment thereof.

Substitute for part of L. 1845, ch. 234, § 1 (3 Edm. 680).

§ 647. Id.; interest in corporation. The rights or shares which the defendant has in the stock of an association or corporation, together with the interest and profits thereon, may be levied upon; and the sheriff's certificate of the sale thereof entitles the purchaser to the same rights and privileges, with respect thereto, which the defendant had, when they were so attached.

Co. Proc., 234, and final clause of 237. Smith v. Am. Coal Co., 7 Lans. 317; Pardee v. Leitch, 6 id. 303.

§ 648. [Amended, 1877.] Id.; bond, note, etc. The attachment may also be levied upon a cause of action rising upon contract; including a bond, promissory aote, or other instrument for the payment of money only, negotiable or otherwise, whether past due, or yet to become due, executed by a foreign or domestic government, state, county, public officer, association, municipal or other corporation, or by a private person, either within or without the State; which belongs to the defendant, and is found within the county. The levy of the attachment thereupon is deemed a levy upon, and a seizure and attachment of, the debt represented thereby.

New. McGinn v. Ross, 11 Abb. N. S. 20; Clark v. Warren, 7 Lana 180: Clark v. Goodridge, 41 N. Y. 210; O'Brien v. Mechanics' Ins. Co., 66 1d. 52; Smith v. Am. Coal Co., 7 Lans. 317; Willet v. Equitable Ins Co., 10 Abb. 198; Kelly v. Babcock, 49 N. Y. 318; Thurber v. Blanck, 50 id. 80; Mechanics' Bank v. Dakin, 51 id. 519.

27

~

135184.

$649. [Amended, 1889.] How property to be attached.-A levy under a warrant of attachment must be made as follows:

1. Upon real property, by filing with the clerk of the county, where it is situated, a notice of the attachment, stat ing the names of the parties to the action, the amount of the plaintiff's claim, as stated in the warrant, and a description of the particular property levied upon. The notice must be subscribed by the plaintiff's attorney, adding the office address and must be recorded and indexed by the clerk, in the same book, in like manner, and with like effect, as a notice of the pendency of an action. (1)

2. Upon the personal property, capable of manual delivery, including a bond, promissory note, or other instrument for the payment of money, by taking the same into the sheriff's actual custody.(2) He must thereupon, without delay, deliver to the person from whose possession the property is taken, if any, a copy of the warrant, and of the affidavits upon which it was granted.

3. Upon other personal property, by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same; or, if it consists of a demand, other than as specified in the last subdivision, with the person against whom it exists; or, if it consists of a right or share in the stock of an association or corporation, or interests or profits thereon, with the president, or other head of the association or corporation, or the secretary, cashier, or managing agent thereof. (3)

4. [Added, 1889.] Upon property discovered in any action brought as prescribed in subdivision two of section six hundred and fifty-five of this act, by entering in the proper clerk's office, the judgment rendered in said action, and there after levying on said property in the manner prescribed in subdivisions one, two and three of this section.

Substitute for Co. Proc., 225. (1) See Rodgers v. Bonner, 45 N. Y. 379; Larned v. Vandenburgh, 7 How. 379; Fitzgerald v. Blake, 28 id. 110. (2) U. S. v. Graff, 4 Hun, 634. (3) O'Brien v. Mechanics, etc., Fire Ins. Co., 56 N. Y. 52; Clarke v. Goodridge, 41 id. 210; Clark v. Warren, 7 Lans. 180; McGinn v. Ross, 11 Abb. N. S. 20; Miles v. Brown, 3 N. Y. Supr. 400; Pardee v. Leitch, 6 Lans. 303.

650. Certificate of defendant's interest to be furnished. Upon the application of a sheriff, holding a warrant of attachment, the president or other head of an association or corporation, or the secretary, cashier, or managing agent thereof, or a debtor of the defendant, or a person holding property, including a bond, promissory note, or other instrument for the payment of money, belonging to the defendant, must furnish to the sheriff a certificate, under his hand, specifying the rights or number of shares of the defendant, in the stock of the association or corporation, with all dividends declared, or incumbrances thereon; or the amount, nature, and description of the property, held for the benefit of the