« ПретходнаНастави »
4 Month. L. Bul. 7.
17 Hun, 232. 4 Month. L.
§ 593. [Am'd 1877.] For the purpose of surrendering the defendant, the bail, at any place or at any time before they are finally charged, may themselves arrest him, or, by a written authority, endorsed on a certified copy of the undertaking, may empower another person to do so. And one or more of the bail may thus arrest and surrender the defendant, although the others do not join with him or them, for that purpose.
594. Where the defendant surrenders himself in exoneration of his bail, he must present himself to the sheriff, and require the sheriff, in writing, to take him into custody, in exoneration of his bail. The sheriff must detain him accordingly, as prescribed in subdivision second of section five hundred and ninety-two of this act; and, if requested by the bail, at any time after the surrender, the sheriff must, by a certificate in writing, acknowledge the surrender. An order for the exoneration of the bail may be procured, as prescribed in section five hundred and ninety-two of this act.
$595. Where the sheriff is liable as bail, he has all the rights and privileges, and is subject to all the duties and liabilities of bail; and bail given by him, in order to discharge himself from liability, must be regarded as the bail of the defendant in the action. But this section does not apply to an action to recover a chattel; or to a case where a defence arises to an action against the bail, in consequence of an act or omission of the sheriff.
§ 596. In case of failure to comply with the undertaking, the bail may be proceeded against by action, and not other
§ 597. An action may be brought, as prescribed in the last section, in a case where the order of arrest could be granted only by the court, at any time after the bail have failed to comply with their undertaking. Where the undertaking was given in an action to recover a chattel, an action may be brought thereupon, at any time after the return, wholly or partly unsatisfied, of an execution for the delivery of the possesion of the chattel, with respect to which the order of arrest was granted. In any other case, in action cannot be brought, as prescribed in the last section, until the following requisites have been complied with:
1. An execution, against the property of the defendant, must have been issued to the sheriff of the county in which he was arrested, and returned by that sheriff, wholly or partly
2. An execution, against the person of the de endant, must have been issued to the same sheriff, and by him returned, not less than fifteen days after its receipt, to the effect that the defendant could not be found within his county.
$598. [Am'd 1877.] The sheriff must diligently endeavor 88 N.Y. 611. to enforce an execution issued and delivered to him, as prescribed in the last section, notwithstanding any direction he may receive from the plaintiff, or his attorney.
88 N. Y. 611. 40 ON. Y. Super. Ct. (J. & 8.) 206.
$599. [Am'd 1877.] In an action against bail, i va defence, that an execution, against the property, or ag ist the person, of the defendant in the original action, was not .ssued, as prescribed in section five hundred and ninety-seven of this act; or that it was not issued in sufficient time to enable the sheriff to enforce it; or that a direction was given, or other
fraudulent or collusive means were used, by the plaintiff or his attorney, to prevent the service thereof.
$600. If the defendant in the orignal action, after his discharge upon bail, is imprisoned, either within or without the State, upon a criminal charge, or a conviction of a criminal offence, the court, in which an action against the bail is pending, may, before the expiration of the time to answer, and upon notice to the adverse party, make such an order for the relief of the bail, as justice requires.
$ 601. [Am'd 1877.] Except in an action to recover a chattel, the bail must be exonerated where either of the following events occurs, before the expiration of the time to answer in an action against them :
1. The death of the original defendant.
2. His legal discharge from the obligation to render himself amenable to the process, direction, or proceedings, with respect to which the undertaking of the bail was made.
3. His surrender to the sheriff of the county where he was arrested, as prescribed in this article.
Where either event occurs, after the commencement of the action against the bail, the court may, in its discretion, impose the payment of the plaintiff's costs and expenses, incurred after the return of the execution against the person, as a condition of allowing the exoneration. And the court may, by an order, made upon notice to the adverse party, grant such further time as it deems just, after answer, for the surrender of the original defendant. In that case, his surrender, within the time so granted, has the same effect, as if it had been made before answer.
ARTICLE 1. Cases where an injunction may be granted; granting and service of an Injunction order.
CASES WHERE AN INJUNCTION MAY BE GRANTED; GRANTING
602. Writ of injunction abolish-
605. Restrictions upon injunc-
2606. By whom injunction grant-
608. At what time the order
609. When notice required or
$602. The writ of injunction has been abolished. A tem- 61 State Rep. porary injunction may be granted by order, as prescribed in this article.
§ 603. Where it appears, from the complaint, that the plaintiff demands and is entitled to a judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to the plaintiff, an injunction order may be granted to restrain it. The case
2 Abb. N. C.
51 N.Y. Super. Ct. (J. & J.) 227.
49 Hun, 19.
16 Civ. Pro. 129.
136 N.Y. 95) App. I
136 N. Y. 252.
provided for in this section, is described in unis act, as a case where the right to an injunction depends upon the nature of the action.
§ 604. [Am'd 1877.] In either of the following cases, an 7 Misc. 126. injunction order may also be granted in an action:
59 How. Pr. 508.
1. Where it appears, by affidavit, that the defendant, during the pendency of the action, is doing, or procuring, or suffering to be done, or threatens, or is about to do, or to procure, or suffer to be done, an act, in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom.
2. Where it appears, by affidavit, that the defendant, during the pendency of the action, threatens, or is about to 13 Civ. Pro. remove, or to dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted to restrain the removal or disposition.
$ 605. [Am'd 1895, amendment to take effect January 1, 1896.] Where a duty is imposed by statute upon a State officer, or board of State officers, an injunction order to restrain him or them, or a person employed by him or them, from the performance of that duty, or to prevent the execution of the statute, shall not be granted, except by the supreme court, at a term thereof, sitting in the department in which the officer or board is located, or the duty is required to be performed; and upon notice of the application therefor to the officer, board, or other person to be restrained.
§ 606. Except where it is otherwise specially prescribed by law, an injunction order may be granted by the court in which the action is brought, or by a judge thereof, or by any county judge; and where it is granted by a judge, it may be enforced as the order of the court.
§ 607. [Am'd 1877.] The order may be granted, where it appears to the court or judge, by the affidavit of the plaintiff, or any other person, that sufficient grounds exist therefor.
§ 608. [Am'd 1877.] The order may be granted to accompany the summons, or at any time after the commencement of the action and before final judgment.
$609. [Am'd 1877.] The order may be granted, upon or without notice, in the discretion of the court or judge, unless the defendant has answered; in which case, it can be granted only upon notice, or an order to show cause. Where an application for an injunction is made upon notice, or an order to show cause, either before or after answer, the court or judge may enjoin the defendant, until the hearing and decision of the application.
$610. The injunction order must briefly recite the grounds for the injunction. Where it is granted by the court, it must be served by delivering a certified copy thereof; where it is granted by a judge, it must be served by showing the original order, and delivering a copy thereof. Service of the order, upon a corporation, may be made as prescribed in this act, for making personal service of a summons upon a corporation. Copies of the papers, upon which the order was granted, must be delivered with the copy of the order.
$611. An injunction order shall not be granted, to stay 7 Misc. 389, the trial of an action, in which the complaint demands judg- 390. ment for a sum of money only, after issue has been joined therein, unless the party applying therefor gives an undertaking to the party enjoined, with sufficient sureties, to the effect, that he will pay to the party enjoined, or his representative, all damages and costs, which may be recovered by him in the action stayed by the injunction, not exceeding a sum, specified in the undertaking; and, also, all damages and costs that may be awarded to him, in the action in which the injunction order is granted.
$612. An injunction order shall be not granted, to stay proceedings in an action specified in the last section, after verdict, report, or decision, and before final judgment thereupon, unless a sum of money, sufficient to cover the sum awarded by the verdict, report, or decision, and the costs of the action, is Erst paid, by the party applying for the injunction into the court, in which his action is commenced, or an undertaking for the payment thereof, with interest, is given, as prescribed in this article.
613. [Am'd 1877.] An injunction order shall not be granted, to stay proceedings upon a judgment for a sum of money, unless the following requisites are complied with, by the party applying therefor: 150 N. Y. 532,
1. The full amount of the judgment, including interest and costs, must be paid by him, into the court in which his action is commenced; or an undertaking in lieu thereof must be given, as prescribed in this article.
2. He must also give an undertaking, with sufficient sureties, to pay to the party enjoined, all damages and costs, which may be awarded to him by the court, in the action in which the injunction order is granted; not exceeding a sum, specified in the undertaking.
$614. Money paid into court, as prescribed in the last two sections, may be paid over, by the direction of the court, to the party whose proceedings are stayed, upon his giving an undertaking to the people of the State, with sufficient sureties, in a sum fixed by the court, to pay the money and interest, or any part thereof, as directed in the order or judgment of the
§ 615. Where money so paid into court has been paid over to the party whose proceedings are stayed, if the final decision of the action, in which the injunction order is granted, is against the party obtaining it, the court must give such di
11 Civ. Pro. 310.
22 Week. Dig. 448.
11 Civ. Pro.
9 App. Div.
81 Hun, 309.
rections, as justice requires, with respect to cancelling the undertaking given by the successful party; making perpetual the injunction staying collection of the judgment; and requiring the judgment to be discharged of record.
§ 616. An injunction order shall not be granted, to stay proceedings in an action of ejectment, or for dower, after verdict, report, or decision, unless the party applying therefor gives an undertaking, with sufficient sureties, to pay t› the party enjoined, or his representative, all damages and costs, not exceeding a sum specified in the undertaking, which may be awarded to him, in the action wherein the injunction was granted.
$617. Where an undertaking is given, as prescribed in the last section, the damages to be paid, upon the vacating of the injunction order, or the decision of the action against the party obtaining it, include, not only the reasonable rents and profits of the real property, recovered by the verdict, report, or decision, but all waste committed upon the property, after the granting of the injunction.
§ 618. In a case, where money is required by the foregoing sections of this article, to be paid into court, the court or judge may dispense with the payment, and may require the party to give, in lieu thereof, an undertaking, with two or more sureties, to pay the sum specified, with interest, as directed by the court. If an undertaking is required, in addition to the deposit, both undertakings may be contained in the same instrument, at the election of the party applying for the injunction.
§ 619. The foregoing sections of this article do not apply to a case, where an injunction order is applied for, to stay proceedings in another action, on the ground that a judgment, verdict, report, or decision therein was obtained by actual fraud. In that case, the court or judge granting the injunetion order may dispense with the deposit of money, or the execution of an undertaking, except as prescribed in the next section.
§ 620. [Am'd 1877.] Where special provision is not otherwise made by law for the security to be given upon an injunetion order, the party applying therefor must give an undertaking, executed by him, or by one or more sureties, as the court or judge directs, to the effect, that the plaintiff will pay to the party enjoined, such damages, not exceeding a sum, specified in the undertaking, as he may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto.
§ 621. 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 în a particular case is otherwise regulated.
§ 622. [Repealed 1877.]
§ 623. [Am'd 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