54 Sheriff may keep property until justification. The sheriff is responsible for the sufficiency of the sureties; and he may retain possession of the property attached, and the proceeds thereof, until the objection to them is waived, as prescribed in the last section, or they, or the new sureties, justify. Code Civ. Pro., § 691. 15 Abb. Pr. N. S. 205. 55 Foregoing provisions applicable to vessels; stay; extension of time. The last five sections are applicable, where a vessel, or a share or interest therein is attached. If it is necessary, to enable the defendant to discharge the attachment, the court or judge may, by order, stay any proceedings specified in article second of this title, or extend the time to do any act therein specified. Code Civ. Pro., § 692. * 56 Discharge of attachment on partnership property. If a warrant of attachment is levied upon the interest of one or more partners, in goods or chattels of a partnership, the other partners, who are not defendants in the action, or any of them, may at any time before final judgment, apply to the judge who granted. the warrant, or to the court, upon an affidavit showing the facts, for an order to discharge the attachment, as to that interest. Code Civ. Pro., § 693. 42 N. Y. 132; 73 id. 264; 8 Abb. Pr. 120; 24 Wend. 389; 2 Hill, 47; 1 L. B. 51; 34 N. Y. St. R. 244. 57 Undertaking to be given. Upon such an application, the applicant must give an undertaking, with at least two sufficient sureties, to the effect that they will pay to the sheriff, on demand, the amount of any judgment, which may be recovered against the partner who is defendant in the action; or which may be recovered against him, in any other action, wherein the other partners are not defendants, and wherein a warrant of attachment, or an execution, may come to the sheriff's hands, at any time before the warrant of attachment, which was so levied, is vacated or annulled; not exceeding a sum, specified in the undertaking, which must not be less than the value of the interest of the defendant, in the goods or chattels seized by virtue of the attachment, as fixed by the court or judge. If the value, in the opinion of the court or judge, is uncertain, the sum shall be such as the court or judge determines. Code Civ. Pro., § 694, as am'd L. 1877, c. 416. 58 Amount of same and sufficiency of sureties, how determined. For the purpose of fixing the sum, or determining the sufficiency of the sureties, the court or judge may receive affidavits or oral testimony, or may direct a reference. Code Civ. Pro., § 695. 34 N. Y. St. R. 244. 59 Notice to plaintiff. The court or judge may direct, that the plaintiff have notice of an application for a discharge of property, as prescribed in this article, or of the hearing under an order of reference, made as prescribed in the last section; and, if the applicant does not appear, where notice has been given, the application may be dismissed or denied. Code Civ. Pro., § 696, as am'd L. 1877, c. 416. Regulations where there are Two or more Warrants against the Same Defendant. 60 Preferences of two or more warrants. Where two or more warrants of attachment, against the same defendant, are delivered to the sheriff of the same county, to be executed, their respective preferences, and the rules, where a levy, or a levy and sale, have been made under a junior warrant, are the same, as where two or more executions, against the property of the same defendant, are delivered to the sheriff of the same county, to be executed. Code Civ. Pro., § 697. 18 Civ. Pro. 262: 20 id. 300; 124 N. Y. 612; 79 Hun, 134; 30 N. Y. St. R. 488: 37 id. 221; 61 id. 357; 9 N. Y. Supp. 550; 29 id. 757; 37 id. 486; 69 N. Y. St. R. 422; 148 N. Y. 177. When subsequent warrant to be executed against same defendant. Where a domestic vessel, or a share or interest therein, has been attached, and afterwards 61 *This subject, §§ 9-46. released, as prescribed in this title; or where the personal property of a partnership, of which the defendant was a member, has been attached, and the attachment afterwards discharged, upon the application of another partner, as prescribed in this title;* another warrant, against the same defendant, shall not be levied on the same property, by the sheriff of the same or of any other county, until after the first warrant has been vacated or annulled. But, except as thus prescribed, where a second warrant, against the same defendant, is delivered to the same sheriff, he must execute it, by a levy upon property within his county, and he must thereupon take the same proceedings, as if the levy was made under the first warrant. Code Civ. Pro., § 698. §§ 699 and 700 repealed by L. 1877, c. 416. 62 Undertaking by second attaching creditor to hold foreign vessel. Where a foreign vessel, or a share or interest therein, has been attached and valued, as prescribed in article second of this title, and the plaintiff, in the first warrant of attachment, fails to give an undertaking to prevent the release thereof, the court or judge may grant to the plaintiff in a second warrant, then in the sheriff's hands for execution, an extension, of not more than three days thereafter, within which to furnish an undertaking, in all respects like the one to be furnished by the first plaintiff. And if he furnishes it, within that time, he has the same rights and privileges, and is subject to the same duties and liabilities, with respect to the vessel and its proceeds, and the subsequent proceedings relating thereto, as if his was the first warrant. Code Civ. Pro., § 701. 63 Subsequent attachments of same. If a foreign vessel, or a share or interest therein, has been attached, and afterwards released, by reason of the failure of the plaintiff, in the first or the second warrant, to give an undertaking to prevent the release, it shall not be again attached, under warrant against the same defendant, which had been delivered to the sheriff of the same county, before the expiration of the time within which the undertaking should have been furnished. But it may be again attached, under a subsequent warrant against the same defendant; in which case, the plaintiff therein, and the plaintiff in each warrant subsequently delivered to the sheriff, have the same rights, and privileges, and are subject to the same duties and liabilities, with respect to the vessel and its proceeds, and the subsequent proceedings relating thereto, as if the warrant, under which it was attached, was the first warrant. Code Civ. Pro., § 702. 64 Junior plaintiff, rights of in action by senior plaintiff and sheriff jointly. Where the plaintiff in a warrant of attachment has commenced an action, in the name of himself and the sheriff jointly, as prescribed in this title,* a plaintiff in a junior warrant may apply to the court or judge, to direct as to the conduct, discontinuance, or settlement of the same, or to impose terms, conditions, and regulations as to the continuance thereof, in the interest of the applicant; and such order may be made thereupon, as justice requires. If the first warrant is vacated, or the attachment thereunder is released or discharged, without affecting the cause of action prosecuted by the plaintiff therein and the sheriff jointly, the plaintiff in the warrant next in order, may, upon his own application, be substituted as joint plaintiff with the sheriff, by an order, made as upon an application for leave to bring such an action. Code Civ. Pro., § 703. 65 Same when allowed to commence such joint action. A plaintiff in a second warrant may apply to the court or judge, upon notice to the plaintiff in the first warrant, and to the sheriff, for leave to bring and maintain, in the name of himself and the sheriff jointly, any action, which might be brought in the name of the senior plaintiff and the sheriff. If it appears that the plaintiff in the first warrant neglects or refuses to be joined with the sheriff in such an action, or to comply with the terms, conditions, and regulations, imposed, either upon granting him an order for that purpose, or upon the hearing of an application, made as prescribed in this section, the court or judge may grant to the plaintiff in the This subject, §§ 9-46. *This subject. Code second warrant, leave to bring and maintain such an action, in the name of himself and the sheriff jointly, with like effect, as if his was the first warrant. Civ. Pro., 704. 18 Abb. N. C. 149, n. 66 Rights of attaching creditors after the second. Where there are more than two warrants of attachment, against the same defendant, the plaintiffs in the third and each subsequent warrant have, according to their respective priorities, the same rights and privileges, as against the plaintiffs in all senior warrants, which the plaintiff in the second warrant has, as against the plaintiff in the first, and are subject to the same duties and liabilities; except that a second extension of the time, within which to furnish an undertaking to prevent the release of a foreign vessel, or a share or interest therein, shall not be granted. And the plaintiffs in two or more junior warrants of attachment, may, by agreement among themselves, take jointly, and for their common benefit, any proceeding, permitted by this title* to be taken, by the plaintiff in a second or subsequent warrant of attachment; provided that it does not interfere with the preferential or other right of an intermediate plaintiff. Code Civ. Pro., § 705. Proceedings after Judgment; Rights of Parties and Duties of Sheriff after the Warrant is Vacated or Annulled, or the Attachment Discharged. 67 Execution to issue to sheriff who has levied attachment. Where a levy, under a warrant of attachment in an action, has been made, an execution against property, upon a final judgment in favor of the plaintiff therein, recovered after the expiration of the term of office of the sheriff, who made the levy, must nevertheless be directed to and executed by that sheriff, unless another person is designated by law to complete the unfinished business pertaining to his office; or, in that case, to the person so designated. Code Civ. Pro., § 706. 27 Barb. 463; 20 Abb. N. C. 189, n., 191; 79 Hun, 134; 61 N. Y. St. R. 351. 68 Only attached property of non-resident bound when summons not personally served. Where a defendant, who has not appeared, is a non-resident of the state, or a foreign corporation, and the summons was served without the state, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, the judgment can be enforced only against the property which has been levied upon, by virtue of the warrant of attachment, at the time when the judgment is entered. But this section does not declare the effect of such a judgment, with respect to the application of any statute of limitation. Code Civ. Pro., § 707, as am'd L. 1877, c. 416. 23 How. Pr. 294: 9 Abb. Pr. 66; s. c. 17 How. Pr. 106; 60 Barb. 107; 63 N. Y. 114, 125; 2 Civ. Pro. 330, 331; s. c. 64 How. Pr. 1; 19 W. D. 46; 112 N. Y. 382; 20 Civ. Pro. 38: 130 N. Y. 482; 132 id. 524; 134 id. 527; 23 Abb. N. C. 276; 32 N. Y. St. R. 747: 34 id. 827; 42 id. 365; 44 id. 849; 47 id. 644; 53 id. 892; 56 id. 314; 4 N. Y. Supp. 7, 189, 249, 497, 806; 10 id. 580; 12 id. 234; 24 id. 80. 69 Judgment in action when attachment has been levied, how satisfied. Where an execution against property is issued upon a judgment for the plaintiff, in an action in which a warrant of attachment has been levied, the sheriff must satisfy it, as follows: 1. He must pay over to the plaintiff all money attached by him, and the proceeds of all sales of perishable property, or of any vessel or share or interest therein, or animals, sold by him, or of any debts, or other things in action collected or sold by him; or so much thereof as is necessary to satisfy the judgment. 110 N. Y. 118, aff'g 20 Abb. N. C. 188, 191; s. c. 13 Civ. Pro. 146. 2. If any balance remains due, he must sell, under the execution, the other personal property attached, or so much thereof as is necessary; including rights or shares in the stock of an association or corporation, or a bond or other instrument for the payment of money, executed and issued, with the interest coupons annexed, if any, by a government, state, county, public officer, or municipal or Actions, § 23-33. *This subject. other corporation, which is in terms negotiable, or payable to the bearer or holder, the principal whereof is not then payable; but not including any other debt or thing in action. If the proceeds of that property are insufficient to satisfy the judgment, and the execution requires him to satisfy it out of any other personal property of the defendant, he must sell the personal property, upon which he has levied by virtue of the execution. If the proceeds of the personal property, applicable to the execution, are insufficient to satisfy the judgment, the sheriff must sell, under the execution, all the right, title, and interest, which the defendant had in the real property attached, at the time when the notice was filed, or at any time afterwards, before resorting to any other real property. 62 How. Pr. 90; 31 Hun, 75, 76; 42 id. 124; 130 N. Y. 482; 42 N. Y. St. R. 365. 3. If personal property attached, belonging to the defendant, has passed out of the hands of the sheriff, without having been sold or converted into money, and the attachment has not been discharged, as to that property, he must, if practicable, regain possession thereof; and, for that purpose, he has all the authority which he had, to seize the same under the warrant. A person who wilfully conceals or withholds such property from him, is liable to double damages, at the suit of the party aggrieved. 18 W. D. 413; s. c. 94 N. Y. 508; 32 Hun, 356; 39 id. 38. 4. Until the judgment is paid, he may collect the debts and other things in action attached, and prosecute any undertaking, which he has taken in the course of the proceedings, and apply the proceeds thereof to the payment of the judg ment. 44 Hun, 63. 5. At any time after levying the attachment, the court, upon the petition of the plaintiff, accompanied with an affidavit, specifying fully all the proceedings of the sheriff, since the levy under the warrant, the property attached, and the disposition thereof; and the affidavit of the sheriff, showing that he has used diligence, in endeavoring to collect the debts and other things in action attached, and that a portion thereof remains uncollected; may direct the sheriff to sell the remaining portion, upon such terms, and in such manner, as it thinks proper. Notice of the application must be given to the defendant's attorney, if the defendant appeared in the action. If the summons was not personally served on the defendant, and he did not appear, the court may make such order as to the service of notice, as it thinks proper; or may grant the application without notice. Code Civ. Pro., § 708, as am'd L. 1877, c. 416. 70 When attachment discharged, etc., property to be restored to defendant. Where a warrant of attachment is vacated, or annulled, or an attachment is discharged, upon the application of the defendant, the sheriff must, except in a case where it is otherwise specially prescribed by law, deliver over to the defendant, or to the person entitled thereto, upon reasonable demand, and upon payment of all costs, charges, and expenses, legally chargeable by the sheriff, all the attached personal property remaining in his hands, or that portion thereof, as to which the attachment is discharged; or the proceeds thereof, if it has been sold by him. Code Civ. Pro., § 709, as am'd L. 1877, c. 416. See Code Civ. Pro., § 691; 66 How. Pr. 41, 42; s. c. 4 Civ. Pro. 154, 157; 66 How. Pr. 31, 33; s. c. 4 Civ. Pro. 148, 151; 1 How. Pr. N. S. 25; 2 id. 441; 105 N. Y. 322, 328; 87 id. 56, 62; 90 id. 521, 525; 34 Hun, 470; 36 id. 407, 408; s. c. 8 Civ. Pro. 35; 7 Misc. 396; 30 N. Y. St. R. 486; 57 id. 556. 71 Same: further provisions for his relief. Where the sheriff is required, by this title,* to deliver attached property, or the proceeds thereof, to the defendant, he must also deliver to him, unless otherwise specially directed by the court or judge, all books of account, vouchers, evidences of debt, muniments of title, or other papers, relating to the property, either real or personal, or to its proceeds; together with all undertakings, relating thereto, which he has taken in the course of the proceedings, and which have not been fully satisfied; except an undertaking, given by the defendant, upon the discharge of property. He must also This subject. deliver a written assignment duly acknowledged, of each undertaking, so delivered, and of each other instrument, to which the defendant is thus entitled, an assignment of which is necessary to perfect or protect the defendant's title thereto. The defendant must also, but upon his own application only, be substituted in the place of the sheriff, or the sheriff and the plaintiff jointly, in an action brought as prescribed in this title;* but the court or judge may impose, as a condition of granting the order of substitution, such terms as justice requires, with respect to indemnity and payment of expenses. The defendant's rights, with respect to property attached and not disposed of, and an undertaking, or other instrument, to which he is thus entitled, are the same as those of the sheriff while the warrant was still in force, except where his rights are specially defined or regulated by law. Code Civ. Pro., § 710. 72 Cancelling notice attaching real property. At any time after the warrant of attachment has been vacated or annulled, or the attachment has been discharged as to real property attached, the court may, in its discretion, upon the application of any person aggrieved, and upon such notice as it deems just, direct, that any notice, filed for the purpose of attaching the property, be cancelled of record, by the clerk of the county where it is filed and recorded. The cancellation must be made by a note, to that effect, on the margin of the record, referring to the order; and, unless the order is entered in the same clerk's office, a certified copy thereof must, at the same time, be filed therein. Code Civ. Pro., § 711, as am'd L. 1877, c. 416. 55 N. Y. 139. 73 Sheriff's return on vacated warrant. Where a warrant of attachment has been vacated or annulled, the sheriff must forthwith file, in the clerk's office, the warrant, with a return of his proceedings thereon. Upon the application of either party, and proof of the sheriff's neglect, the court may direct him so to do, forthwith, or within a specified time. Code Civ. Pro., § 712. 22 Civ. Pro. 94; 63 Hun, 345; 30 N. Y. St. R. 487; 44 id. 393; 17 N. Y. Supp. 916. IN ACTION AGAINST JOINT DEBTORS; see Joint Debtors, § 9. IN CITY COURT OF NEW YORK; see New York, §§ 17, 29, 40, 46. COMBINED WITH OTHER REMEDIES; see Provisional Remedies, § 1. COSTS UPON; see Costs, § 47. OF DEAD BODY; see Burial, § 7. DISCHARGING; see Appeals, § 19. EXECUTION AFTER; see Executions, §§ 9, 55, 57. FEES FOR EXECUTING; see Sheriff, § 28. FORMS, ETC., EXTENDED TO ACTION TO FORECLOSE LIEN ON CHATTELS; see Chattels, §§ 50, 52. FRAUDULENT REMOVAL OF PROPERTY ATTACHED; see Fraud, §§ 8, 9. IN JUSTICES' COURTS; see Justices' Courts, §§ 45-58, 258; New York, §§ 70, 71, 79. OF NETS, ETC.; see Fisheries, etc., Law. PREFERENCE BETWEEN; see Executions, SS 47, 48. PROPERTY EXEMPT FROM; see Executions, §§ 28-44. OF PROPERTY OF DEFENDANT NOT PERSONALLY SERVED; see Judgment, etc., § 17. PROVISIONS RELATING TO, CONSTRUED; see Code of Civil Procedure, §§ 3, 7. REPLEVIN OF ATTACHED PROPERTY; see Chattels, § 2; Executions, §§ 62-68. ON SUBMISSION OF CONTROVERSY; see Judgment, etc., § 80. OF VESSELS; see Shipping. Attachment of Person. TO COLLECT FINE; see New York Harbor, § 15. FOR CONTEMPT IN GENERAL; see Contempt. OF DEBTOR OR ASSIGNEE; see Assignments for the Benefit of Creditors, §§ 3, 6. OF MAGISTRATE TO COMPEL RETURN; see Appeals, § 113. BY MILITARY COURT; see Military Code, § 220. OF OFFICERS OF CORPORATIONS; see Actions, § 75. BY REFEREE; see Evidence, § 28, Trials, § 40. FOR REFUSAL TO OBEY WRIT OF HABEAS CORPUS; see Habeas Corpus, §§ 23-25, 44 OF SHERIFF; see Tax Law, § 77. *This subject. |