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apon 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. 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. Where the damages have been ascertained by the 11 Misc. 180. 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.
24 Hun, 648.
§ 626. [Am'd 1895, amendment to take effect January 1, 61 How. Pr. 1896.] Where the injunction order was granted without 105. 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 can not 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 can not be made to him; and that the applicant 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.
§ 627. [Am'd 1877, 1879.] Where the injunction order 24 Hun, 648; was granted without notice, or where it was granted upon 34 Id. 549. 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. 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. [Am'd 1883, 1884.] 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.
§ 630. 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. [Repealed 1877.]
§ 632. [Repealed 1877.]
§ 633. [Repealed 1877.]
§ 634. [Repealed 1877.]
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 at
4. Regulations where there are two or more warrants against the same defendant.
Proceedings after judgment; rights of parties and duties of the sheriff, after the warrant is vacated or annulled, or the attachment discharged.
CASES WHERE A WARRANT OF ATTACHMENT MAY BE GRANTED;
635. In what actions a warrant
636. What must be shown to
687. Warrant in action againt
2638. When and by whom the
€39. Affidavits to be filed.
641. Contents of warrant; to whom directed.
642. Validity of undertaking.
22 Hun, 22. 11 Abb. N.C.
31 Hun, 301.
§ 635. [Am'd 1877, 1891, 1895, amendment to take effect September 1, 1895.] 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 3 Civ. Pro. the next section, where the action is to recover a sum of money only as damages for one or more of the following
32 Hun, 253; 38 Id. 202; 108 N. Y. 276; 30 Abb. N. C. 182n; 1 App. Div. 403.
1. Breach of contract, express or implied, other than a contract to marry.
2. Wrongful conversion of personal property.
147 N. Y. 150.
12 N.Y. State Rep. 606.
3. An injury to person or property, in consequence of 7 Hun, 237. negligence, fraud or other wrongful act.
§ 636. What must be shown to procure the warrant. [Am'd 1887, 1894, 1895, 1899.] To entitle the plaintiff to such a warrant, he must show, by affidavit, to the satisfaction of the judge, granting the same as follows:
$7 N. Y. 141; 26 Hun, 24; 27 Id. 517; 4 Civ. Pro. 319; 29 Hun. 265; 6 Civ. Pro. 263n: 15 Abb. N. C. 354; Id. 480; 41 Hun, 66; 91 N. Y. 668; 8 App. Div. 318; 15 Misc. 410; 150 N. Y. 77.
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 contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him.
14 Misc. 421.
23 Alb. L. J. 215.
124; Id. 491.
60 How. Pr.
81 Hun, 677. 11 Misc. 294. 12 Misc. 198.
27 Hun, 242.
115 N.Y. 459;
119 Id. 160.
2. [Am'd 1899.] That the defendant is either a foreign 11 Abb. N. corporation or not a resident of the 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 acquiesence 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 state of New York 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 behalf, us pres ribed 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 can not be made within the state, after diligent effort.
91 N. Y. 668.
§ 637. [Am'd 1877, 1894, amendment to take effect September 1, 1894] A warrant of attachment, against the property of one or more of the 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.
§ 638. [Am'd 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 conmenced, the service must be made complete by the continuance thereof.
§ 639. [Am'd 1877.] Th plaintiff procuring the warrant 15 Abb. N. must, within ten days after the granting thereof, cause the C. 33. affidavits, upon which it was granted, to be filed in the office 53 Hun, 587. of the clerk.
§ 640. 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.
48 NY Sup
er. Ct (J. & S ) 219.
37 Hun, 334.
§ 641. The warrant must be subscribed by the judge and 4 Civ. Pro 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. 15 Misc.410. It must require the sheriff to attach and safely keep, so much 18 Id. 428. 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. 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.