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[CHAP. VII. TITLE 2. § 602. The writ of injunction has been abolished. A temporary inWrit of in junction may be granted by order, as prescribed in this article.

junction

abolished, and order substi

§ 603. Where it appears, from the complaint, that the plaintiff demands, and is entiled to a judgment against the defendant, tuted. restraining the commission or continuance of an act, the commission Injunction, or continuance of which, during the pendency of the action, would right there- produce injury to the plaintiff, an injunction order may be granted to to depends restrain it. The case, provided for in this section, is described in this nature of act, as a case where the right to an injunction depends upon the nature the action. of the action.

when the

upon the

Id.; when the right

§ 604. In either of the following cases, an injunction order may also thereto de- be granted in an action:

pends upon extrinsic facts.

Restrictions upon

to restrain State offi

cers.

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 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. Where a duty is imposed by statute upon a State officer, or injunction 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 general 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.

By whom injunction

§ 606. Except where it is otherwise specially prescribed by law, an granted in injunction order may be granted by the court in which the action is othercases. 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. The order may be granted, where it appears to the court or procure in- judge, by the affidavit of the plaintiff, or any other person, that suffijunction. cient grounds exist therefor.

Proof necessary to

At what

§ 608. The order may be granted to accompany the summons, or at order may any time after the commencement of the action, and before final jud

time the

be granted. ment.

When notice re

not re

§ 609. The order may be granted, upon or without notice in the disquired or cretion 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 quired. Injunction cause. Where an application for an injunction is made upon notice, pending an or an order to show cause, either before or after answer, the court or tion. judge may enjoin the defendant, until the hearing and decision of the application.

applica

recite

Order must § 610. The injunction order must briefly recite the grounds for the grounds; injunction. Where it is granted by the court, it must be served by Servics of delivering a certified copy thereof; where it is granted by a judge, it

order.

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.

ARTICLE SECOND.

SECURITY.

ART. 2.

SECTION 611. Security, on staying proceedings in an action, before trial.

612. Id.; after trial, and before judgment.

613. Id.; after judgment.

614. Money deposited may be paid over.

615. Undertaking to be cancelled thereupon.

616. Security, on staying proceedings after verdict, in ejectment or dower.
617. Id.; damages to include waste.

618. Deposit may be dispensed with.

619. Undertaking and deposit; when dispensed with.

620. Security in other cases.

621. Special cases excepted.

*622. When undertaking deemed forfeited.

623. Damages; how ascertained.

624. Damages sustained by a third person.
625. Action on the undertaking.

action, be

§ 611. An injunction order shall not be granted, to stay the trial of Security, on staying an action, in which the complaint demands judgment for a sum of proceedmoney only, after issue has been joined therein, unless the party apply-ing in, an. ing therefor gives an undertaking to the party enjoined, with sufficient fore trial. 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.

before

§ 612. An injunction order shall not be granted, to stay proceedings 1d.; after in an action specified in the last section, after verdict, report, or decis- trial, and ion, and before final judgment thereupon, unless a sum of money, judgment. sufficient to cover the sum awarded by the verdict, report, or decision, and the costs of the action, is first 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. An injunction order shall not be granted, to stay proceedings Id.; after upon a judgment for a sum of money, unless the following requisites judgment. are complied with, by the party applying therefor:

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, Money deposited may be paid over, by the direction of the court, to the party whose pro- may be ceedings are stayed, upon his giving an undertaking to the people of paid over. 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 court.

$615. Where money so paid into court has been paid over to the Undertakparty whose proceedings are stayed, if the final decision of the action, ing to be

[blocks in formation]

cancelled

TITLE 2. in which the injunction order is granted, is against the party obtaining thereupon. it, the court must give such directions, 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.

Security on

verdict, in

§ 616. An injunction order shall not be granted, to stay proceedings staying proceed. in an action of ejectment, or for dower, after verdict, report or decision, ings after unless the party applying therefor gives an undertaking, with sufficient ejectment sureties, to pay to the party enjoined, or his representative, all damages or dower. and costs, not exceeding a sum specified in the undertaking, which may be awarded to him, in the action wherein the injunction was granted.

Id.; damages to include waste.

Deposit may be dispensed with.

§ 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 when dis- 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 injunction order may dispense with the deposit of money, or the execution of an undertaking, except as prescribed in the next section.

Undertaking and deposit;

pensed with.

Security in other cases.

Special

cases ex

§ 620. Where special provision is not otherwise made by law for the security to be given upon an injunction 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 specepted. cial 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.

Damages, how ascer

§ 623. The damages, sustained by reason of an injunction, may be tained. 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.

Damages sustained

§ 624. Where the defendant enjoined was an officer of a corporation, or joint stock association, or a bailee, agent trustee, or other represent

person.

ative of another, and the damages sustained by him, are less than the ART. 3. sum specified in the undertaking, the court or the referee may also by a third 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.

taking.

§ 625. Where the damages have been ascertained by the decision of Action on the court, or the confirmation of a referee's report, as prescribed in the the under 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 vacate or modify, without notice.
627. Id.; upon notice.

628. When prior motion not to prejudice subsequent application.
629. New undertaking may be required.

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.

tion to

without

§ 626. Where the injunction order was granted without notice, the Applicaparty enjoined may apply, upon the papers upon which it was granted, vacate or for an order vacating or modifying the injunction order. Such an modify application may be made, without notice, to the judge who granted the notice. order, or who held the term of the court where it was granted; or to the general term of the court, it cannot be made without notice, to any other judge or term, unless the applicant produces proof, by affidavit, that, by reason of the absence or other disability of the judge who granted the order, the application cannot 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.

notice.

§ 627. Where the injunction order was granted without notice, or Id.; upon 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.

prior mo

$628. The granting or denial of an application, made as prescribed When in the last section, founded only upon the papers upon which the in- tion not to junction order was granted, does not prejudice a subsequent applica- prejudice tion, seasonably made, founded upon proof, by affidavit, on the part of applica the defendant. And the granting or denial of either application does

Stricken out.

subsequent

tion.

TITLE. 3.

New undertaking may be

not prejudice a subsequent application, seasonably made, founded upon the failure of a conplaint, 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. Upon the hearing of an application, upon notice, to vacate or modify an injunction order, the court or judge may require a new required. 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.

Verified

answer to have the

§ 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 effect only of an affidavit.

of an aflidavit.

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.

In what actions a

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. A warrant of attachment against the property of one or more warrant of defendants in an action, may be granted upon the application of the plaintiff, as specified in the next session, where the action is to recover a sum of money only as damages for one or more of the following causes:

attachment may be granted.

*So in the original.

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