ARTICLE SECOND.

Granting, executing, and vacating or modifying the order of arrest.

Sec. 556. Order required for arrest; how granted.

557. Proof necessary to procure order.

558. When order may be granted; effect of complaint subsequently made. 559. Security, upon order of arrest made by a judge.

560. Id.; upon order of arrest granted by the court.

561. Contents of the order; to whom directed; when to be executed.

562. Copies of papers to be delivered to defendant; originals to be filed. 563. Arist; how made.

564. General provision as to privilege from arrest; discharge of privileged person.

565. Privilege of officers of courts.

566. Defendant arrested to have twenty days to answer.

567. When application to be made to vacate order of arrest, etc.

568. Ho and to whom application must be made; opposing it by new proofs.

509-57 [Repealed.]

572. Supersedeas, unless defendant is charged in execution, etc.

556. [Am'd, 1877.] Order required for arrest; how granted.

An order for the arrest of the defendant, except as otherwise prescribed in section five hundred and fifty-one of this act, must be obtained from a judge of the court in which the action is brought, or from any county judge.

Co. Proc., 180. See §§ 606, 638 and 1949, post.

§ 557. [Am'd, 1879.] Proof necessary to procure order. The order may be granted, in a case specified in section five hundred and forty-nine of this act, where it appears by the affidavit of the plaintiff or any other person, that a sufficient cause of action exists against the defendant, as prescribed in that section. It may be granted, in a case specified in section five hundred and fifty of this act, upon the like proof that a sufficient cause of action exists against the defendant, as prescribed in that section, and of the other matters, extrinsic to the cause of action, specified in that section. The affidavit may also contain any statement, tending to determine the amount of bail to be required. Id., 181, with modifications.

When order may be granted;

§ 558. [Am'd, 1879, 1886.] effect of complaint subsequently made.

Subject to the provisions of the las: preceding section, the order may be granted at any time, after the commencement of the action. It may also be granted to accompany the summons, but at any time after the filing or service of the complaint, the order of arrest must be vacated on motion, if the complaint fails to set forth a sufficient cause of action, as required by section five hundred and forty-nine of this act, but where the order is applied for after the filing or service of the complaint, the court before granting the same may without notice direct the service of an amended complaint so as to conform to the allegations required in subdivisions two and four of section five hundred and forty-nine of this act.

Id., § 183; L. 1886, ch. 672.

§ 559. [Am'd, 1879.] Security, upon order or arrest made by judge.

Except where the action is brought for a cause specified in subdivision third of section five hundred and forty-nine of this act, or in a case where it is specially prescribed by law that security may be dispensed with, or the security to be given is specially regulated by law, the judge, before he grants the order, must require a written undertaking on the part of the plaintiff, with two sufficient sureties, to the effect that, if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least equal to one-tenth of the amount of bail required by the order, and not less than two hundred and fifty dollars.

Co. Proc., part of § 182.

§ 560. Id.; upon order of arrest granted by the court. Where the order can be granted only by the court, an undertaking on the part of the plaintiff may be dispensed with. If it is required, its form, and the security to be given thereupon, must be such as the court prescribes.

Covers case of a ne exeat.

[Am'd, 1877.]

§ 561. Contents of the order; to whom directed; when to be executed.

The order must be subscribed by the plaintiff's attorney, and, except where it is granted by the court, by the judge. It may be directed, either to the sheriff of a particular county, or, generally, to the sheriff of any county. It must require the sheriff forthwith to arrest the defendant, if he is found within his county; to hold him to bail in a specified sum; and to return the order, with his proceedings thereunder, as prescribed by law. The plaintiff's attorney may, at his option, by an indorsement upon the order, or, where it was granted by the court, upon the copy thereof, delivered to the sheriff. fix a time within which the defendant must be arrested. In that case, he cannot be ar rested afterwards, under the same order.

Co. Proc., part of § 183, am'd. See § 590. See also Rule 13.

§ 562. [Am'd, 1879.] Copies of papers to be delivered to defendant; originals to be filed.

The order of arrest, or, where it was granted by the court, a certified copy thereof, subscribed by the plaintiff's attorney; and, in either case, the papers upon which the order was granted, with the undertaking, if any; ust be delivered to the sheriff, who, upon arresting the defendant, must deliver to him a copy thereof. The papers, upon which the order was granted, with the undertaking, if any, must be filed, with the order of arrest, or a certified copy thereof, at the time prescribed for filing the same, in sec tion five hundred and ninety of this act.

Id., 184, am'd by the addition of the last sentence. See † 590. See also Rule 4.

§ 563. Arrest; how made.

The sheriff must exceute the order by arresting the defendant, if he is found within his county, and keeping him in custody, until discharged by law.

Id., Arst clause of § 185.

§ 564. [Am'd, 1895.] General provision as to privilege from arrest; discharge of privileged person.

This title does not abridge or affect a privilege from arrest given by law, or a right of action for a breach thereof. A privileged person is entitled to be discharged from arrest, where other provision is not made therefor by law, by the court, or a judge thereof; or by the county judge of a county where the arrest was made. The order must be made, upon proof, by affidavit, of the facts entitling the applicant to the discharge; and the arrest and discharge are not a bar to a new arrest, after the privilege has ceased. The court or judge may make the order without notice, or may require notice to be given to the sheriff, or to the plaintiff, or to both.

L. 1895, ch. 946.

565. [Repealed by L. 1909, ch. 14. See Consolidated Laws, tit. Civil Rights Law, § 24.]

§ 566. Defendant arrested to have twenty days to un

swer.

Except where an order of arrest can be granted only by the court, a defendant, arrested before answer, has twenty days, after the arrest, in which to answer the complaint; and judgment must be stayed accordingly.

Substituted for part of Co. Proc., § 183.

§ 567. [Am'd, 1877.] When application to be made to vacate order of arrest, etc.

Except where an order of arrest can be granted only by the court, a defendant, arrested as prescribed in this title, may, at any time before final judgment, or, if he was arrested within twenty days before final judgment, at any time within twenty days after the arrest, apply to vacate the order of arrest; or to reduce the amount of bail; or to increase the security given by the plaintiff; or for one or more of those forms of relief, together, or in the alternative. In a case where the order of arrest can be granted only by the court, a like application may be made, at any time within twenty days after the arrest; and an application to increase the security given by the plaintiff, may be made at any time before final judgment.

Id.

§ 568. [Am'd, 1877.] How and to whom application must be made; opposing it by new proofs.

An application, specified in the last section, may he founded only upon the papers upon which the order was granted; in which case, it must be made to the court, or, if the order was granted by a judge out of court, to the same judge, in court or out of court, and with or without notice, as he deems proper; and the application must be heard upon those papers only. Or it may be founded upon proof, by affidavit, on the part of the defendant; in which case, it must be made to the court, or, if the order was granted by a judge out of court, to any judge of the court, upon notice, and it may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground of arrest recited in the order, and no other, unless the defendant relies upon a discharge in bankruptcy, or upon a discharge or exoneration, granted in insolvent proceedings; in which

case, the plaintiff may show any matter in avoidance thereof, whien he might show upon the trial.

Substitute for Co. Proc., § 205.

569. [Repealed, 1877.]

§ 570. [Repealed, 1877.]

§ 571. [Repealed, 1877.]

§ 572. [Am'd, 1877, 1882 and 1886,] Supersedeas, unless defendant is charged in execution, etc.

Except in a case where an order of arrest can be granted only by the court if the plaintiff unreasonably delay the trial of the action or neglects to enter judgment therein within ten days after it is in his power to do so, or neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment, or whenever it shall appear to the satisfaction of the court that the plaintiff in an action, or a judgment creditor in a judgment, delays the enforcement of his remedies therein by collusion, or for the purpose of allowing the debtor to remain in prison under the mandate in any other action, before the issuing of the mandate in favor of such creditor, so as to produce a continued and extended imprisonment by virtue of the separate mandates in the different actious, the defendant must upon his application, made upon notice to the plaintiff, be discharged from custody if he has already been taken under the mandate against him in such action; or if he has not yet been imprisoned therein, be relieved from imprisonment by virtue of such mandate, by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted. A defendant discharged as prescribed in this section shall not be arrested upon an execution issued upon the judgment in the action.

Co. Proc., part of § 288, am'd; L. 1886, ch. 672.

118

ARTICLE THIRD,

Discharging the defendant upon bail or deposit; justification of the bail and disposition of the deposit.

Sec. 573. Defendant to be discharged on bail or deposit,

574. When defendant may elect to give bail, etc., or bond for liberties. 575. Undertaking of the bail; what to contain.

576. Examination of persons offered as bail.

577. Filing, etc., of papers; plaintiff's acceptance or rejection of ball. 578. Notice of jurisdiction; new undertaking, if other bail is given. 579. Qualifications of bail.

580. Justification of ball.

581. Allowance of bail.

582. Deposit of money with sheriff.

583. Payment of deposit into court by sheriff.

584. Substituting bail for deposit.

585. How deposit disposed of.

586. When deposit to be paid to a third person.

587. Sheriff, when liable to bail; his discharge from liability.

588. Proceedings on judgment against sheriff.

589. Bail liable to sheriff.

590. Filing papers if ball not given.

§ 573. Defendant to be discharged on bail or deposit. The defendant, at any time before he is in contempt, where the order can be granted only by the court, or, in any other case, at any time before execution against his person, must be discharged from arrest, either upon giving bail, or upon depositing the sum specified in the order of arrest. The defendant may give bail, or make the deposit, immediately upon his arrest, at any hour of the day or night; and he must have reasonable opportunity to see* for and to procure bail, before being committed to jail.

Co. Proc., § 186, am'd. See post, § 1706.

§ 574. When defendant may elect to give bail, etc., or bond for liberties.

Where the defendant is actually confined in the jail, by virtue of an order of arrest, and final or interlocutory judgment has been rendered against him in the action, but an execution against his person has not been issued, he may elect, either to give a bond for the liberties of the jail, or to give bail or make a deposit, as prescribed in this article.

§ 575. Undertaking of the bail; what to contain.

The defendant may give bail, by delivering to the sheriff a written undertaking, in the sum specified in the order of arrest, executed by two or more sufficient bail, stating their places of residence and occupations, to the following effect:

1. If the order of arrest could be granted only by the court, that the defendant will obey the direction of** court, or of an appellate court, contained in an order or a judgment, requiring him to perform the act specified in the order; or, in default of his so doing, that he will, at all times, render himself amenable to proceedings to punish him for the omission.

2. If the action is to recover a chattel, that the defendant will deliver it to the plaintiff, if delivery thereof is adjudged in the action, and will pay any sum recovered against him in the action.