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.

ARTICLE FIRST.

Cases where a Warrant of Attachment may be granted; and Proceedings upon granting the same.

SEC. 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. In what actions a warrant of attachment may be granted.

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 the next section, where the action is to recover a sum of money only, as damages for one or more of the following causes:

1. Breach of contract, express or implied, other than a contract to

marry.

2. Wrongful conversion of personal property.

3. An injury to person or property in consequence of negligence, fraud or other wrongful act.

From Co. Proc. §§ 227 and 229.

Am'd by ch. 416 of 1877; ch. 738 of 1894 and ch. 578 of 1895.

"Injury to property," see § 3343, sub. 10.

See also § 3347, sub. 5.

636. What must be shown to procure the warrant. To entitle the plaintiff to such a warrant he must show, by affidavit, to the satisfaction of the judge granting the same, as follows:

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 counter-claims known to him

2. That the defendant is either a foreign 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 acquiescence 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, as prescribed 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.

From Id.

Am'd by ch. 416 of 1877; ch. 736 of 1894; ch. 578 of 1895 and ch. 598 of 1899.

"

"Domestic corporation," foreign corporation," see § 3343, sub. 18.

§ 637. Warrant in action against public officer, etc.; for peculation.

A warrant of attachment, against the property of one or more 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 or 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. From Id.

Am'd by ch. 416 of 1877 and ch. 736 of 1894.

§ 638. When and by whom the warrant may be granted. 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 pre

scribed in this act; and if publication has been, or is thereafter commenced, the service must be made complete, by the continuance thereof. From Co. Proc. § 228 and part of § 227.

Am'd by ch. 416 of 1877.

Substitutes for personal service, see § 635, et seq.

§ 639. Affidavits to be filed.

The plaintiff procuring the warrant must, within ten days after the granting thereof, cause the affidavits, upon which it was granted, to be filed in the office of the clerk.

From Co. Proc. § 229.

Am'd by ch. 416 of 1877. " Clerk," see 3343, sub. 4. See also rule 4 (Sup. Ct.).

§ 640. Security on obtaining warrant.

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.

From Co. Proc. § 230.

See § 811.

§ 641. Contents of warrant; to whom directed.

The warrant must be subscribed by the judge and 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. It must require the sheriff to attach and safely keep, so much 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.

From Co. Proc. § 231.

See rule 13 (Sup. Ct.).
See $ 55.

§ 642. Validity of undertaking.

It is not a defense 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.

ARTICLE SECOND.

Executing the Warrant pending the Action.

SEC. 643. Judge who granted warrant controls its execution; power of the court thereupon. [Repealed.]

644. Sheriff must attach property of defendant.

645. What interest in real property may be attached.

646. Attachment of unpaid subscription to foreign corporation.

647. Id.; interest in corporation.

648. Id.; bond, note, etc.

649. How property to be attached.

650. Certificate of defendant's interest to be furnished.

651. Person refusing certificate may be examined.

652. Rights of owner or master of vessels by which goods have been shipped.

653. Foregoing section not to apply in certain cases.

654. Sheriff must make inventory.

655. Sheriff may maintain actions.

656. Perishable goods and animals to be sold.

657. Claim of property; how tried.

658. Proceedings, if claimant succeeds.

659. Finding, not to prejudice right of claimant.

660. Proceedings on claim to domestic vessel.

661. Appraisers to be sworn; valuation to be returned.

662. Undertaking to be given.

663. Vessel; when to be discharged.

664. When undertaking to be sued.

665. Defence in such an action; plaintiff's recovery.

666. Foreign vessel; how valued.

667. Notice thereof.

668. Plaintiff to give undertaking with sureties.

669. Vessel; when to be discharged.

670. Terms on which debtor may claim vessel.

671, 672, 673. When vessel to be sold.

674. Sheriff to keep property.

675. Sheriff may be directed to pay money into court.

676. When he may be directed to release or deliver property.

677. Plaintiff may bring action in name of himself and the sheriff.

678. How leave to bring such an action procured.

679. Plaintiff may be joined with sheriff, after action commenced.

680. Judge to direct as to management of such an action, etc.

681. Return of inventory; how enforced.

§ 643. Judge who granted warrant controls its execution; power of the court thereon.

Repealed by ch. 416 of 1877.

§ 644. Sheriff must attach property of defendant. The sheriff must immediately execute the warrant, by levying upon so much of the personal and real property of the defendant, within his county, not exempt from levy and sale by virtue of an execution, as will satisfy the plaintiff's demand, with the costs and expenses. He must take into his custody all books of account, vouchers, and other papers, relating to the personal property attached, and all evidences of

the defendant's title to the real property attached, which he must safely keep, to be disposed of, as prescribed in this title. The sheriff, to whom a warrant of attachment is delivered, may levy, from time to time, and as often as is necessary, until the amount, for which it was issued, has been secured, or final judgment has been rendered in the action, notwithstanding the expiration of his term of office.

From Co. Proc. § 232 and 2 R. S. 4, Part 2, ch. 5, tit. 1, art. 1, § 7 (2 Edm. 4). Am'd by ch. 416 of 1877.

See 38 706, 708.

§ 645. What interest in real property may be attached. The real property, which may be levied upon by virtue of a warrant of attachment, includes any interest in real property, either vested or not vested, which is capable of being alienated by the defendant.

§ 646. Attachment of unpaid subscription to foreign corporation.

Under a warrant of attachment against a foreign corporation, other than a corporation created by or under the laws of the United States, the sheriff may levy upon the sum remaining unpaid upon a subscription to the capital stock of the corporation, made by a person within the county; or upon one or more shares of stock therein, held by such a person, or transferred by him, for the purpose of avoiding payment thereof.

From ch. 234 of 1845, § 1 (3 Edm. 680).

**Foreign corporation," see § 3343, sub. 18.

§ 647. Id.; interest in corporation.

The rights or shares which the defendant has in the stock of an association or corporation, together with the interests and profits thereon, may be levied upon; and the sheriff s certificate of the sale thereof entitles the purchaser to the same rights and privileges, with respect thereto, which the defendant had, when they were so attached.

From Co. Proc. § 234 and § 237, sub. 2.

§ 648. Id.; bond, note, etc.

The attachment may also be levied upon a cause of action arising upon contract; including a bond, promissory note, or other instrument for the payment of money only, negotiable, or otherwise, whether past due, or yet to become due, executed by a foreign or domestic government, state, county, public officer association, municipal or other corporation, or by a private person. either within or without the State; which belongs to the defendant, and is found within the county. The levy of the attachment thereupon is deemed a levy upon, and a seizure and attachment of, the debts represented thereby.

Am'd by ch. 416 of 1877.

See § 708.

§ 649. How property attached.

A levy under a warrant of attachment must be made as follows: 1. Upon real property, by filing with the clerk of the county where it is situated, a notice of the attachment, stating the names of the parties to the action, the amount of the plaintiff's claim, as stated in the warrant, and a description of the particular property levied upon. The notice must be subscribed by the plaintiff's attorney, adding the office address and must be recorded and indexed by the clerk, in the same book, in like manner, and with like effect, as a notice of the pendency of an action.