§ 621. Special cases excepted. The foregoing provisions of this article do not affect any special statutory provision, whereby security upon granting an injunction order may be dispensed with, in a particular case, or the security to be given in a particular case is otherwise regulated. § 622. [Stricken out by Ch. 416 of 1877.] § 623. Damages how ascertained. [AMENDED BY CII. 416 OF 1877.] The damages, sustained by reason of an injunction, may be ascertained and determined by the court, or by a referee, appointed by the court, or by a writ of inquiry or otherwise as the court shall direct; and the decision of the court thereupon, or an order confirming the report of the referee, is conclusive, as to the amount of those damages, upon all the persons who have executed the undertaking, unless it is reversed upon appeal. The court may, in its discretion, direct that the sureties have notice of the hearing, or of an appeal, and may prescribe the time and manner of giving them notice. § 624. Damages sustained by a third person. Where the defendant enjoined was an officer of a corporation, or joint stock association, or a bailee, agent, trustee, or other representative of another, and the damages sustained by him, are less than the sum specified in the undertaking, the court or the referee may also separately ascertain and determine the damages sustained, by reason of the injunction, by the corporation, association, or person, whom the defendant represents, to an amount not exceeding the surplus of the sum specified in the undertaking; and those damages may be recovered in a separate action, brought as prescribed in the next section. § 625. Action on the undertaking. Where the damages have been ascertained by the decision of the court, or the confirmation of a referee's report, as prescribed in the last two sections, any person, entitled to the benefit of an undertaking, executed pursuant to the provisions of this title, may bring an action thereon, without further leave of the court. ARTICLE THIRD. VACATING OR MODIFYING AN INJUNCTION ORDER. SECTION 626. Application to vocate or modify, without notice. 627. Id.; upon notice. 628. When prior motion not to prejudice subsequent application. 630. Verified answer to have the effect only of an affidavit. *631. When merits of action may be litigated. *632. When merits not to be litigated. *633. Extrinsic questions of fact to be determined, *634. Proof upon questions of fact. § 626. Application to vacate or modify without notice. Where the injunction order was granted without notice, the party enjoined may apply, upon the papers upon which it was granted, for an order vacating or modifying the injunction order. Such an application may be made, without notice, to the judge or justice who granted the order, or who held the term of the court where it was granted; or to a term of the appellate division of the supreme court. It cannot be made without notice, to any other judge, justice or term, unless the applicant produces proof, by affidavit, that, by reason of the absence or other disability of the judge or justice who granted the order, the application cannot be made to him; and that the applicant * Stricken out by Ch. 416 of 1877. will be exposed to great injury, by the delay required for an application upon notice. The affidavit must be filed with the clerk; and a copy thereof, and of the order vacating or modifying the injunction order, must be served. upon the plaintiff's attorney, before that order takes effect. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.] § 627. Id.; upon notice. [AMENDED BY CH. 416 OF 1877 AND BY CH. 542 OF 1879.] Where the injunction order was granted without notice, or where it was granted upon notice, with leave to apply to vacate or modify it, the party enjoined may apply upon notice, to the judge who granted it, or to the court, at a term where a contested motion in the action may be heard, for an order, vacating or modifying the injunction order. Such an application may be founded upon the papers upon which the injunction was granted; or upon proof, by affidavit, on the part of the defendant; or both. Where it is founded upon proof on the part of the defendant, it may be opposed by new proof by affidavit, on the part of the plaintiff, tending to sustain the injunction. § 628. When prior motion not to prejudice subsequent application. The granting or denial of an application, made as prescribed in the last section, founded only upon the papers upon which the injunction order was granted, does not prejudice a subsequent application, seasonably made, founded upon proof, by affidavit, on the part of the defendant. And the granting or denial of either application does not prejudice a subsequent application, seasonably made, founded upon the failure of a complaint, which had not been made at the time of the former application, to set forth a cause of action, sufficient to entitle the plaintiff to the injunction order, upon one or more grounds, recited therein. § 629. New undertaking may be required. Upon the hearing of an application upon notice, to vacate or modify an injunction order, the court or judge may require a new undertaking, in the same or in a different sum, to be given by the plaintiff, with the like sureties, and to the like effect, as upon granting an original order. The persons executing the new undertaking become liable thereon, as if they had executed it upon the granting of the original order. The persons who executed, the original undertaking remain liable thereon, until the new undertaking is given and approved, and no longer. Upon such hearing the court or judge may, where the alleged wrong or injury is not irreparable and is capable of being adequately compensated for in money, vacate the injunction order upon the defendant's executing an undertaking in such form and amount and with such sureties as the court or judge shall direct, conditioned to indemnify the plaintiff against any loss sustained by reason of vacating such injunction order. [AM'D CH. 404 OF 1883; CH. 401 of 1884.] § 630. Verified answer to have the effect only of an affidavit. Upon the hearing of a contested application for an injunction order, or to vacate or modify such an order, a verified answer has the effect only of an affidavit. § 631. [Stricken out by Ch. 416 of 1877.] § 632. [Stricken out by Ch. 416 of 1877.] § 633. [Stricken out by Ch. 416 of 1877.] § 634. [Stricken out by Ch. 416 of 1877.] TITLE III. Attachment of property.. ARTICLE 1. Cases where a warrant of attachment may be granted, and proceedings upon granting the same. 2. Executing the warrant pending the action. 3. Vacating or modifying the warrant; discharging the attachment. 4. Regulations where there are two or more warrants against the same defendant. 5. Proceedings after judgment; rights of parties and duties of the sheriff, after the warrant is vacated or annulled, or the attachment discharged. ARTICLE FIRST. CASES WHERE A WARRANT OF ATTACHMENT MAY BE GRANTED; AND PROCEEDINGS UPON GRANTING THE SAME. SECTION 635. In what actions a warrant of attachment may be granted. 636. What must be shown to procure the warrant. 637. Warrant in action against public officer, etc., for peculation 638. When and by whom the warrant may be granted. 639. Affidavits to be filed. 640. Security on obtaining warrant. 641. Contents of warrant; to whom directed. 642. Validity of undertaking. §635. In what actions. A warrant of attachment against the property of one or more defendants in an action, may be granted upon the application of the plaintiff, as specified in the next section, where the action is to recover a sum of money only, as damages for one or more of the following causes : 1. Breach of contract, express or implied, other than a contract to marry. 2. Wrongful conversion of personal property. 3. An injury to person or property in consequence of negligence, fraud or other wrongful act. [AM'D BY CH. 946 OF 1895. To take effect Jan. 1, 1896.] § 636. What must be shown to procure the warrant. To entitle the plaintiff to such a warrant he must show, by affidavit, to the satisfaction of the judge granting the same, as follows: 1. That one of the causes of action specified in the last section exists against the defendant. If the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counter-claims known to him. 2. That the defendant is either a foreign corporation or not a resident of this state; or, if he is a natural person and a resident of the state, that he 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; or, if the defendant is a natural person, or a domestic corporation, that he or it has removed, or is about to remove, property from the state, with intent to defraud his or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property, with the like intent; or where, for the purpose of procuring credit, or the extension of credit, the defendant has made a false statement in writing, under his own hand or signature, or under the hand or signature of a duly authorized agent, made with his knowledge and acquiescence as to his financial responsibility or standing; or, where the defendant being an adult and a resident of the state, has been continuously without the United States for more than six months next before the granting of the order of publication of the summons against him, and has not made a designation of a person upon whom to serve a summons in his own behalf, as prescribed in section four hundred and thirty of this act; or a designation so made no longer remains in force; or service upon the person so designated cannot be made within the state, after diligent effort. [AM'D BY CHAP. 578 OF 1895. In effect Sept. 1, 1895.] § 637. Warrant in action against public officer, etc.; for peculation. A warrant of attachment, against the property of one or more defendants in an action, may also be granted, upon the application of the plaintiff, where the complaint demands judgment for a sum of money only; and it appears, by affidavit, that the action is brought to recover money, funds, credits, or other property, held or owned by the State, or held or owned, officially or otherwise, for or in behalf of a public governmental interest, by a municipal or other public corporation, board, officer, custodian, agency, or agent, of the State, or of a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of; or in the obtaining, reception, payment, conversion, or disposition of which, without right, he has aided or abetted; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same; or the aiding or abetting thereof; or in an action in favor of a private person or corporation, brought to recover damages for an injury to personal property 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, to the satisfaction of the judge granting it, that a sufficient cause of action exists against the defendant for a sum stated in the affidavit. [AM'D BY CH. 736 OF 1894. To take effect Sept. 1, 1894.] § 638. When and by whom the warrant may be granted. [AMENDED BY CH. 416 OF 1877.] The warrant may be granted by a judge of the court, or by any county judge to accompany the summons, or at any time after the commencement of the action, and before final judgment therein. 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; 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 complete, by the continuance thereof. § 639. Affidavits to be filed. [AMENDED BY Ch. 416 or 1877.] 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. § 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 six hundred and thirty-seven 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. § 641. Contents of warrant; to whom directed. The warrant must be subscribed by the judge and the plaintiff's attorney, and must briefly recite the ground of the attachment. 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. § 642. Validity of undertaking. It is not a defense 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. ARTICLE SECOND. EXECUTING THE WARRANT PENDING THE ACTION. *SECTION 643. Judge who granted warrant controls its execution; power of the court thereupon. 644. Sheriff must attach property of defendant. 645. What interest in real property may be attached. 646. Attachment of unpaid subscription to foreign corporation. 647. Id.; interest in corporation. 648. Id.; negotiable securities. 619. 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 vessel on which goods have been shipped. 653. Foregoing section not to apply in certain cases. 654. Sheriff must make inventory. 655. Sheriff may maintain actions. 656. Perishable goods 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 sheriff 678. How leave to bring such an action procured. 679. Plaintiff may be joined with sheriff, after action commenced. § 643. [Stricken out by Ch. 416 of 1877.] § 644. Sheriff must attach property of defendant. [AMENDED BY CH. 416 OF 1877.] 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, *Stricken out by Ch. 416 of 1877. |