1. If the case is one where the order could be granted only by the court, at any time before the court directs the performance of the act specified in the order. 2. In any other case, at any time before an execution is issued against the person of the defendant, upon a judgment in the action. Code Pro., $201, amended. See 1 Wait's Pr. 692; Wait's Code, 364; and see Bostwick v. Goetzel, 57 N. Y. (12 Sick.) 582; Brady v. Brundage, 59 N. Y. (14 Sick.) 310; Bensel v. Lynch, 44 N. Y. (5 Hand) 162. As to the liability of the sheriff as bail in an action to recover chattel, where bail have failed to justify, see McKenzie v. Smith, 48 N. Y. (3 Sick.) 143. ings on against § 588. If judgment is recovered against the sheriff, upon his Proceedliability as bail, and an execution thereon is returned wholly or partly judgment unsatisfied, the official bond of the sheriff may be prosecuted, as in sheriff. any other case of delinquency. Code Pro., § 202. See 1 Wait's Pr. 693, 695; Wait's Code, 365. to sheriff. § 589.* The bail taken upon the arrest, unless they justify, or Ball liable other bail are given and justify, are liable to the sheriff for all damages, which he sustains by reason of the omission. Code Pro., § 203. See 1 Wait's Pr. 695; Wait's Code, 365. Sureties who fail to justify after notice that the plaintiff does not accept the bail are not liable as bail to the sheriff. The cause of action given to the sheriff is not upon the undertaking, but for the papers if given. § 590. If the defendant does not give bail, within ten days Filing after he is arrested, the sheriff must file with the clerk the order of ball not arrest, with his return thereon indorsed, and the papers upon which the order of arrest was granted. New. ARTICLE FOURTH. CHARGING AND DISCHARGING BAIL. SEC. 591. When defendant may be surrendered. 592. How surrender to be made; exoneration of bail thereupon. 593. Bail may arrest defendant. 594. Voluntary surrender; exoneration of bail thereupon. 595. Rights, etc., of sheriff who is liable as bail. 596. Bail; how proceeded against. 597. Certain executions necessary before action against bail. 598. Duty of sheriff on such executions. 599. Defences in action against bail. 600. Relief of bail where principal is imprisoned on criminal charge. 601. Bail exonerated by death, etc. defendant may be surren When § 591. Except in an action to recover a chattel, the bail may surrender the defendant in their own exoneration, or the defendant may surrender himself in exoneration of the bail, before the expiration of the time to answer, in an action against them. The surrender must be made to the sheriff of the county, where the defendant was arrested. dered. How surrender to From Code Pro., § 188. See 1 Wait's Pr. 670; Wait's Code, 358. The form of surrender of their principal by the bail prescribed by section 188 of the Code of Procedure, in case of a surrender before failure to comply with the undertaking, was not applicable to a surrender after commencement of an action upon such undertaking. The practice to be pursued in the latter case was prescribed by 2 R. S. 380, SS 21, 22; 2 R. S. (Edm. ed.) 395. See Cozine v. Walter, 55 N. Y. (10 Sick.) 304; see, also, Brady v. Brundage, 59 N. Y. (14 Sick.) 310; Hissong v. Hart, 7 J. & Sp. 411. § 592. Where the bail surrender the defendant, the surrender be made; must be made in the following manner: exoneration of bail thereupon. Bail may arrest defendant. Voluntary surrender; exoneration of 1. They must take the defendant to the sheriff, and require him, in writing, to take the defendant into his custody. 2. A certified copy of the undertaking of the bail must be delivered to the sheriff, who must detain the defendant in his custody thereupon, as upon the original mandate, and must, by a certificate in writing, acknowledge the surrender. Upon the application of the bail, made upon notice to the plaintiff's attorney, and upon production of the sheriff's certificate and a copy of the undertaking, a judge of the court, or the county judge of the county where the action is triable, may make an order, directing that the bail be exonerated. On filing the order and the papers used on the application therefor, the bail are exonerated accordingly. Code Pro., § 188, amended; 1 Wait's Pr. 670; Wait's Code, 358. § 593. [Amended, 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, indorsed 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. Code Pro., § 189, amended. See 1 Wait's Pr. 671; Wait's Code, 359. § 594. Where the defendant surrenders himself in exoneration of his bail, he must present himself to the sheriff, and require the ball there- 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 592 of this act; and, if requested by the bail, at any time after the surrender, the sheriff must, by a cer upon. tificate in writing, acknowledge the surrender. An order for the exoneration of the bail may be procured, as prescribed in section 592 of this act. New. etc., of who is bail. § 595. Where the sheriff is liable as bail, he has all the rights Rights, and privileges, and is subject to all the duties and liabilities of bail; sheriff and bail given by him, in order to discharge himself from liability, liable as 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. New. See 1 Wait's Pr. 693. See Brady v. Brundage, 59 N. Y. (14 § 596. In case of failure to comply with the undertaking, the Bail; how may be proceeded against by action, and not otherwise. bail Code Pro., § 190. See Wait's Code, 359; 1 Wait's Pr. 678. proceeded against. executions before against § 597. An action may be brought, as prescribed in the last sec- Certain tion, in a case where the order of arrest could be granted only by necessary the court, at any time after the bail have failed to comply with their action undertaking. Where the undertaking was given in an action to bail. 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 possession of the chattel, with respect to which the order of arrest was granted. In any other case, an 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 unsatisfied. 2. An execution, against the person of the defendant, 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. From 2 R. S. 397, § 31. See 1 Wait's Pr. 678, 679. § 598.* The sheriff must diligently endeavor 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. Duty of sheriff on such exe cutions. 2 R. S. 697, § 32. Defences in action against bail. Relief of bail where is imprisoned on criminal charge. § 599.* In an action against bail, it is a defence, that an execution, against the property, or against the person, of the defendant in the original action, was not issued, 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. 2 R. S. 697, § 33. See 1 Wait's Pr. 679. § 600. If the defendant in the original action, after his disprincipal charge 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.. Bail ex onerated From Laws of 1845, ch. 231 (4 Edm. St. 554), § 4, and intended as a substitute for Code Pro., § 191. § 601.* Except in an action to recover a chattel, the bail must by death, 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. etc. 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. Substitute for Laws of 1845, ch. 231, § 4; 2 R. S. 394; Code Pro., § 191. See Wait's Code, 360; and see Stark v. Hempstead, 6 Hun, 301. TITLE II. Injunction. ARTICLE. 1. Cases where an injunction may be granted; granting and service of an injunction order. 2. Security. 3. Vacating or modifying an injunction order. ARTICLE FIRST. CASES WHERE AN INJUNCTION MAY BE GRANTED; GRANTING AND SERVICE OF SEC. 602. Writ of injunction abolished, and order substituted. 603. Injunction, when the right thereto depends upon the nature of the action. 604. Id.; when the right thereto depends upon extrinsic facts. 605. Restrictions upon injunction to restrain State officers. 606. By whom injunction granted in other cases. 607. Proof necessary to procure injunction. 608. At what time the order may be granted. 609. When notice required or not required. Injunction pending an application, 610. Order must recite grounds; service of order. § 602. The writ of injunction has been abolished. A tempo- Writ of rary injunction may be granted by order, as prescribed in this article. tion abol Code Pro., § 218; Wait's Code, 378; 2 Wait's Pr. 1. See Fellows v. Heermans, 13 Abb. N. S. 1; Burch v. Cava nagh, 12 id. 410; Kennedy v. Simmons, injunc ished, and order substituted. tion, right depends nature § 603. Where it appears, from the complaint, that the plaintiff Injuncdemands and is entitled to a judgment against the defendant, re- when the straining the commission or continuance of an act, the commission or thereto continuance of which, during the pendency of the action, would upon the produce injury to the plaintiff, an injunction order may be granted of the to restrain it. The case, provided for in this section, is described in this act, as a case where the right to an injunction depends upon the nature of the action. Code Pro., § 219, amended; Wait's Erie Railway Co. v. Rumsay, 45 How. Code, 379-390; 2 Wait's Pr. 3. See 637. action. § 604. [Amended, 1877.] In either of the following cases, an Id.; when injunction order may also be granted in an action: the right thereto depends extrinsic 1. Where it appears, by affidavit, that the defendant, during the upon pendency of the action, is doing, or procuring, or suffering to be facts. done, or threatens, or is about to do, or to procure, or suffer to be |