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$ 542

Rep. 894.

268.

out by the court, upon motion, and upon such terms as the

court deems just. 60 N.Y. Bup

$ 539. A variance, between an allegation in a pleading er. Ct. (J.'& and the proof, is not material, unless it has actually misled S.) 301,

the adverse party, to his prejudice, in maintaining his action 89 Hun, 568. or defence, upon the merits. If a party insists that he has

been misled, that fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court. Thereupon the court may, in its discretion, order the pleading

to be amended, upon such terms as it deems just. 50 N. Y. Sup- S 540. Where the variance is not material, as prescribed er. Ct (J. & in the last section, the court may direct the fact to be found S.) 301.

according to the evidence, or may order an immediate amend

ment, without costs. 7 Misc. 375. $ 541. Where, however, the allegation to which the proof

is directed, is unproved, not in some particular or particulars 24 Id. 386. only, but in its entire scope and meaning, it is not a case of

variance, within the last two sections, but a failure of proof. 49 N.Y. Sup. er. Ct. (J. &

Amendments of cotirse. [ Am'd 1897, amendment S.) 244.

to take effect September 1, 1897.] Within twenty days after a 3 N.Y.Supp: pleading, or the answer, demurrer or reply thereto, is ser. 24 N. Y.State ved, or at any time before the period for answering it or.

pires, the pleading may be once amended by the party, of 16 Civ. Pro. course, without costs and without prejudice to the proceed.

ings already had. But if it is made to appear to the court 31 N.Y.State Rep. 143; 33 that the plealing was amended for the purpose of delay, and Id. 70. that the ndverse party will thereby lose the benefit of a term, 123 N. Y. 138. for which the cause is or may be noticed, the amended

ploading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just.

$ 543. Where a pleading is amended, as prescribed in the last section, a copy thereof must be served upon the attorney for the adverse party. A failure to demur to, or answer the amended pleading, within twenty days thereafter, has the same effect as a like failure to demur to, or answer the

original pleading. 72 N. Y. 442; $ 544. [Am'd 1877.] Upon the application of either party, 79 Id. 679. the court may, and, in a proper case, must, upon such terms 11 Rep. 750.

as are just, permit him to make a supplemental complaint, 35 Hun, 553.

answer or reply, alleging material facts which occurred after 201 2,32639, his former pleading, or of which he was ignorant when it was

Hun, 612. made ; including the judgment or decree of a competent 125 N, Y. 321. court, rendered after the commencement of the action, de16 App. Div. termining the matters in controversy, or a part thereof. The 74. 27 1d. 1; party may apply for leave to make a supplemental pleading, 28 Id. 170. either in addition to, or in place of, the former pleading: 'In

the former event, if the application is granted, a provisional remedy, or other proceeding already taken in the action, is not affected by the supplemental pleading ; but the right of the adverse party to have it vacated or set aside, depends upon the case presented by the original and supplemental

pleadings. 22 App. Div.

$ 545. [And 1877.] Irrelevant, redundant, or scandalous matter contained in a pleading, may be stricken out, upon the motion of a person aggrieved thereby. Where scandalous matter is thus striken out, the attorney whose naine is subscribed to the pleading may be directed to pay the costs of the motion, and his failure to pay them may be punished as a contempt of the court.

475.

$$ 546-549

ARREST.

107

$ 546. (Amd 1877.) Where one or more denials or allega- 36 Hun, 70. tions, contained in a pleading, are so indefinite or uncertain 11 Miso. 27. that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain, by amendment. $ 547. (Repealed 1877.]

CHAPTER VII.
GENERAL PROVISIONAL REMEDIES IN AN ACTION.
TITLE I.-ARREST, PENDING THE ACTION, AND PROCEEDINGS

THEREUPON.
TITLE IL-INJUNCTION.
TITLE III.-ATTACHMENT OF PROPERTY.
TITLE IV.-OTHER PROVISIONAL REMEDIES; GENERAL AND

MISCELLANEOUS PROVISIONS.

TITLE I.
Arrest, pending the action, and proceedings thereupon.
ÅBTICLE 1, Cases where an order of arrest may be granted, and per-

sons liable to arrest,
2. Granting, executing, and vacating or modifying the order

of arrest.
3. Discharging the defendant upon bail or deposit; justifica-

tion of the bail and disposition of the deposit.
4. Charging and discharging bail.

ARTICLE FIRST.
CASES WHERE AN ORDER OF ARREST MAY BE GRANTED, AND

PERSONS LIABLE TO ARREST. è 548. No person to be arrested

granted.
in civil proceedings, with. 552. Foreign judgment not to
out an express statutory

affect right to arrest.
provision.

553. Woman not to be arrested, 549. When the right to arrese

except, etc.
depends upon the nature 554. Idiot, lunatic, or infant un.
of the action.

der fourteen, not to be ar550. When the right to arrest

rested. Discharge. depends partly upon ex. 555. Person sued in a representrinsic facts.

tative capacity, not to be 551. Order, when and where

arrested. $ 548. [Am'd 1877.] A person shall not be arrested in a civil action or special proceeding, except as prescribed by statute. The writ of ne exeat is hereby abolished.

$ 549. (Amd 1877, 1879, 1886.) A defendant may be ar- 9 Daly, 383 rested in an action, as prescribed in this title, where the ac

28 Hun, 338.

67 How. Pr. tion is brought for either of the following causes :

275. 12 Daly, 616; 8 N. Y. State Rep. 851; 21 Abb. N. C. 257; 22 Id, 73; 23 I. 83 Hun, 467. 93; 25 N. Y. State Rep. 629; 5 N. Y. Supp. 740; 6 Id. 405; 122 N. Y. 551; 132 X. Y. 507; 26 App. Div. 515.

1. To recover a fine or penalty. 2. To recover damages for a personal injury; an injury to 14 Hun, 518. property, including the wrongful taking, detention or conver- 66 How. Pr. sion of personal property ; breach of a promise to marry ; 474 misconduct or neglect in office, or in a professional employ- 14 Daly, 448. ment ; fraud or deceit; or to recover a chattel where it is al- 31 App. Div, leged in the complaint that the chattel or a part thereof has 288. been concealed, removed or disposed of so that it cannot be found or taken by the sheriff and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof; or to recover for money received or to recover prop

same.

N. S. 88.
24 N.Y.State

697.

erty or damages for the conversion or misapplication of property where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by a public officer or by an attorney, solicitor or counsellor, or by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker, or other person in a fiduciary capacity. Where such allegation is made, the plaintiff cannot recover unless he proves the same on the trial of the action; and a judgment for the defendant is not a bar to the new action to recover the money or chattel.

3. To recover moneys, funds or property held or owned by 30 Hun, 553. the State, or held or owned officially or otherwise for or in be

half of a public or governmental interest by a municipal or other public 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 to recover damages for so ob

taining, receiving, paying, converting or disposing of the 21 Hun, 459. 4. In an action upon contract, express or implied, other than 49 N. Y. Sup- a promise to marry, where it is alleged in the complaint that er. Ct. (J. & the defendant was guilty of a fraud in contracting or incurS.) 273.

ring the liability, or that he has since the making of the con12 , 516. I How Pr: tract, or in contemplation of making the same, removed or

disposed of his property with intent to defraud his creditors,

or is about to remove or dispose of the same with like intent; Rep. 632; Id. but where such allegation is made, the plaintiff cannot recov.

er unless he proves the fraud on the trial of the action; and a 6 N. Y. Supp. judgment for the defendant is not a bar to a new action to re. 2 Ajip Div. 91.cover upon the contract only. 20 Misc. 404.

93 N. Y. 363; 94 Id. 473; 12 Daly, 516: 21 Abb. N. O. 257; Id. 821; 29 App. Div. 436

$ 550. (Amd 1877, 1879, 1886.) A defendant may also be arrested in an action wherein the judgment demanded requires the performance of an act the neglect or refusal to perform which would be punishable by the court as a contempt where the defendant is not a resident of the State, or being a resident, is about to depart therefrom, by reason of which nonresidence or departure there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual.

$ 551. [Am'd 1877, 1886.] In a case specified in the last section the order of arrest can be granted only by the court, is always in its discretion, and may be granted or served either before or after final judgment, unless an appeal from the judgment is pending upon which security has been given sufficient to stay the execution thereof. In either of the cases specified in section five hundred and forty-nine the order cannot be served after final judgment; but it may be granted where a proper case therefor is presented at any time before

final judgment. 22 Hun, 565. $ 552. The recovery of judgment in a court, not of the

State, for the same cause of action ; or, where the action is founded upon fraud or deceit, for the price or value of the property obtained thereby ; does not affect the right of the plaintiff to arrest the defendant, as prescribed in this title.

$ 553. [Am'd 1877.] A woman cannot be arrested, as prescribed in this title, except in a case where the order can be granted only by the court ; or where it appears, that the ac.

be

son.

courts.

tion is to recover damages for a wilful injury to person, character or property.

$ 554. (Amd 1877.) A lunatic, an idiot, or an infant un. der the age of fourteen years, if arrested, may be discharged from arrest, as a privileged person, in the discretion of the court. The application for his discharge may be made, in his behalf, by a relative, or by any other person whom the court or judge permits to represent him, for the purpose.

$ 555. A person prosecuted in a representative capacity, as heir, executor, administrator, legatee, devisee, next of kin, assignee, or trustee, cannot be arrested, as prescribed in this title, except for his personal act.

ARTICLE SECOND.
GRANTING, EXECUTING, AND VACATING OR MODIFYING THE

ORDER OF ARREST.
556. Order required for arrest; 2 563. Arrest; how made.
by what judge to

564. General provision as to granted.

privilege from arrest; dis557. Proof necessary to procure

charge of privileged per-
order.
656. When order may be grant. 565. Privilege of officers of

ed; effect of complaint
subsequently made.

566. Defendant arrested to have 559. Security, upon order of ar

twenty days to answer. rest made by a judge.

567. When application to be 560. Id; upon order of arrest

made to vacate order of granted by the court.

arrest, etc. 561. Contents of the order; to 568. How and to whom applicawhom directed; when to

tion must be made; opbe executed.

posing it by new proofs. 662. Copies of papers to

572. Unreasonable delay to prodelivered to defendant;

ceed by plaintiff. Effect originals to be filed.

thereoi. $ 556. (Am'd 1877.) An order for the arrest of the de- 15 Hun, 446 fendant, 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.

$ 557. (Amd 1877, 1879.) 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.

S 558. (Am'd 1877, 1879, 1886.) Subject to the provisions 14 Hud, 29. of the last preceding section the order may be granted at any 74 N. Y. 491. time after the commencement of the action. It may also be 16 Week. granted to accompany the summons, but at any time after Dig. 502 the filing or service of the complaint the order of arrest must 21 Abb. N be vacated on motion if the complaint fails to set forth a suf- C-257; 22 Id.

455. ficient cause of action as required by section five hundred

125 N.Y. 364 and forty-nine of this act, but where the order is applied for after the filing or service of the coinplaint, the court before granting the same may without notice direct the service of an

be

433

C 321.

amended complaint so as to conform to the allegations pe quired in subdivisions two and four of section five hundl:e:1

and forty-nine of this act. 31 Hun, 231.

$ 559. [.4m'd 1879.) Except where the action is brought 4. Civ. Pro. for a cause specified in subdivision third of section tive niti

dred and forty-nine of this act, or in a case where it is spe. 6. Misc. 439; cially prescribed by law that security may be dispensed with,

. Pro R. 239 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.

$ 560. Where the order can be granted only by the 21 Abb. N.

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. 23 Hun, 114. $ 561. (Amd 1877.] 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 pluintiff's attorney may, at his option, by an endorsement 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 arrested afterwards under the same order.

§ 562. [Amd 1877, 1879.) The order of arrest, or, where it is 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, must 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 section five hundred and ninety of this act.

$ 563. The sheriff must execute the order by arresting the defendant, if he is found within his county, and keeping him in custody, until discharged by law.

8 564. [Am'd 1877, 1895, amendment to take effect January 1, 1896.] 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 connty judge of the county where the arrest was made. The order must be made, upon proof by affidavit, of the facts entitling the aplicant to the discharge; and the arrest and discharge are not a bar to a new arrest, after the privilege has cea ei. The court or judge may make the order without notice, or may

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