be a resident of and a freeholder or a householder within the city of New York.

Supersedes former § 64. See Code Civ. Pro.. § 579,

§ 36. Papers to be delivered by marshal; notice of rejection of bail; notice of justification of bail.

1. Within two days after bail is given the marshal must deliver to the plaintiff or his attorney copies certified by the marshal of the order of arrest, return and undertaking,

2. Notice that plaintiff does not accept the bail must be served upon the marshal within two days after said copies are delivered. Notice of justification of bail must he served within two days after the notice aforesaid, and the time of justification shall be not more than three days after the service of the notice thereof. Code Civ. Pro.. $$ 577-578 modified. For Justification of bail see Code Civ. Pro., §§ 580-581,

§ 37. Discharge on motion,

The defendant may move for his discharge from arrest as follows:

1. Without notice, on the plaintiff's appearance in court. 2. On two days' notice, at any time before judgment.

3. On one day's notice, if the plaintiff fails to issue execution within twenty-four hours after he is entitled to do so.

Substitute for former § 68. See Code Civ. Pro., §§ 567-568, Former omitted because covered by Code Civ. Pro., § 564. Former 70 omitted because covered by various Code provisions adopted by this article.

§ 38. Motion to reduce bail or to increase security given by plaintiff.

A motion to reduce the amount of bail or to increase the amount of the security given by the plaintiff, or both, may he made by the defendant on two days' notice at any time before judgment.

New. See Code Civ. Pro., §§ 567-568.

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ARTICLE SECOND.

Attachment.

Sec. 39. In what actions granted.

40. Grounds; affidavit.

41. Issuance and contents of warrant. ·

42. Undertaking by plaintiff.

43. Execution of warrant; inventory.

44. Property subject to levy.

45. Manner of making levy; effect of levy and certificate of sale.
46. Certificate of defendant's interest in property,

47. Actions by marshal.

48. Service of summons, warrant and inventory.

49. Undertaking by defendant to reclaim property.

50. Claim by third person; bond and delivery thereupon.

51. Judgment on bond.

52. Action on undertaking when warrant vacated.

53. Return by marshal attaching.

54. Vacating or modifying warrant and Increasing security.

55. Judgment when summons not personally served.

56. Exception to and justification of sureties; reclaimer of attached property.

§ 39. In what actions granted.

In an action of which this court has jurisdiction, a warrant of attachment against the property of one or more defendants may be granted on the application of the plaintiff, if such a warrant might be granted were the action brought in the supreme court. Substitutes "may be granted " Supersedes former & 73. granted,' as the remedy is essentially discretionary. §§ 635-637.

§ 40. Grounds; affidavit.

for must be See Code Civ. Pro.,

To entitle the plaintiff to a warrant of attachment he must show by affidavit to the satisfaction of the court:

1. That a cause of action for which a warrant of attachment may be granted exists against the defendant; and if the action is based upon a breach of contract, that the plaintiff is entitled to recover a sum stated, in excess of all counterclaims known to him.

2. That the defendant is either a foreign corporation or not a resident of the state; or, if the defendant is a natural person and a resident of the city of New York, that he has departed or is about to depart therefrom with intent to defraud his creditors or to avoid the service of a summons, or keeps himself concealed 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 city of New York 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 and signature, or under the hand and signature of a duly authorized agent made with his knowledge and acquiescence, as to his financial responsibility or standing: or, that the defendant, being a natural person of full age and a resident of the state, has been continuously without the state for the space of six months or more immediately before the application, and either that he has not made a designation of a

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person upon whom to serve a summons in his behalf as prescribed in section four hundred and thirty of the code of civil procedure, or that a designation so made no longer remains in force.

The affidavit must be filed in the office of the clerk of the court in the district in which the action is brought.

Former § 74 amended in form. § 74 originally revised from L. 1882, ch. 410, 1317.

§ 41. Issuance and contents of warrant.

The warrant may be granted by the court or a justice thereof and must be issued by the clerk, when the summons is issued or at any time after the commencement of the action and before final judgment. It must briefly recite the grounds of the attachment and must require the marshal to whom it is delivered to attach and safely keep so much of the defendant's personal property as will satisfy the plaintiff's demand, together with the costs and expenses of the action, and forthwith make return of his proceeding thereon to the court. The amount of the plaintiff's demand must be specified in the warrant.

Former 75 amended so as to conform to new practice and omit unnecessary details. § 75 originally revised from L. 1882, ch. 410, § 1318. Attachment may be granted at any time before judgment.

§ 42. Undertaking by plaintiff.

Before granting the warrant the court or a justice thereof must require the plaintiff to give an undertaking to the defendant, with one or more sureties approved by the court or a justice thereof to the effect that if the defendant recovers judgment or the warrant of attachment 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 twice the amount of the plaintiff's demand as stated in the warrant and in no case less than two hundred dollars, and that if the plaintiff recovers judgment he will pay to the defendant all money received by him from property taken by virtue of the warrant or upon any bond given therefor, above the amount of the judgment and interest thereon.

Former 76 retained with formal amendments. § 76 originally revised from L. 1882, ch. 410, § 1319. The undertaking affords greater security to defendant than that prescribed by Code Civ. Pro., § 640.

§ 43. Execution of warrant; inventory.

The marshal to whom the warrant of attachment is delivered must obey the directions therein contained and must immediately make an inventory of the property attached, stating therein the estimated value of each article or item.

$$ 43-45 superseded former $$ 77, 78. $77 originally revised from L. 1882. ch. 410. § 1320; Code Civ. Pro., §§ 147, 148. § 7 originally revised from Code Civ. Pro., § 649. See Code Civ. Pro., §§ 644-649, 654.

44. Property subject to levy.

An attachment may be levied upon any property within the city of New York upon which an attachment may be levied in an action in the supreme court, except real property and interests therein.

See note to § 43.

§ 45. Manner of making levy; effect of levy and certificate of sale.

The manner of making the levy, the effect thereof and the effect of the marshal's certificate of sale, shall be governed by the provisions applicable to like cases in the supreme court. See note to § 43.

§ 46. Certificate of defendant's interest in property. Upon application of a marshal holding a warrant of attachment, a certificate of the defendant's interest in property or in a debt or demand owing to him must be furnished to the marshal, and a person may be ordered to attend before the court and submit to an examination in respect thereto, according to the provisions applicable to like cases in the supreme court.

Supersedes former §§ 79–80. See Code of Civ. Pro., §§ 650-651.

§ 47. Actions by marshal.

The duties and powers of a marshal with respect to the collec tion of debts, effects and things in action attached by him, and with respect to the maintenance by him of actions and special proceedings to reduce personal property to his possession, shall be the same as those of a sheriff, subject to the provisions of section one hundred and fifty-one of this act.

Supersedes former § 81. See Code of Civ. Pro., 655. Original § 82 omitted because covered by new § 151 of this Act and by § 709 of the Code of Civil Procedure.

§ 48. Service of summons, warrant and inventory.

Immediately upon making the inventory the marshal must serve the summons, if it has not yet been served, together with the warrant of attachment and inventory, upon the defendant by delivering to him personally a copy of each, if he can with reasonable diligence be found within the city, or, if he cannot be so found, by leaving a copy of each, certified by the marshal, at the last place of residence of the defendant in the city, with a person of suitable age and discretion, or, if such person cannot be found there, by posting them on the outer door, and also depositing another copy of each in the postoffice, inclosed in a sealed post-paid wrapper, directed to the defendant at his residence; or, if the defendant has no place of residence in the city, by delivering them to the person in whose possession the property attached is found.

If personal service of the summons upon the defendant has previously been made, the marshal must serve the warrant and inventory as herein provided.

Former § 83 amended so as to conform to the new practice of serving summons. $83 originally derived from L. 1882, ch. 410, § 1321.

§ 49. Undertaking by defendant to reclaim property. The defendant or his attorney or agent may at any time before judgment is rendered, execute and deliver to the marshal an undertaking to the plaintiff in a sum specified therein, at least twice the value of the property attached, as stated in the inventory, with one or more sureties approved by a justice of the court, and to the effect that if judgment is rendered against the defendant and an execution is issued thereon within six months after the giving of the undertaking, the property attached shall

be produced to satisfy the execution. Thereupon the marshal must deliver the property to the defendant.

Former 84 slightly amended. 884 originally revised from L. 1882, ch. 410, 1322. The bond mentioned in Code of Civ. Pro., §§ 658-a, 687 and 688 is different.

§ 50. Claim by third person; bond and delivery thereupon.

If a person not a party to the action claims any property attached, which is not reclaimed by the defendant as prescribed in the last section, he may at any time after the seizure and before execution is issued, execute and file with the clerk a bond to the plaintiff, with one or more sureties approved by a justice, in a penalty at least twice the value of the property claimed, and conditioned that, in an action upon the bond to be commenced within three months thereafter, the claimant will establish that he was the general owner of the property claimed at the time of the seizure; or, if he fails so to do, that he will pay to the plaintiff the value thereof, with interest. The marshal must thereupon deliver the property claimed to the claimant.

Former § 85 slightly amended. § 85 originally revised from L. 1882, ch. 410, § 1323. Procedure prescribed by §§ 50-52 more simple than that of the Supreme Court.

§ 51. Judgment on bond.

A judgment for the plaintiff in an action on a bond given as prescribed in the last section must award to him the value of the property seized and delivered to the claimant, with interest thereon from the time of the delivery. If the amount so recovered exceeds the amount which the plaintiff recovers in the action in which the warrant of attachment was issued, he is liable to the defendant for the excess.

Former $ 86 slightly amended. § 86 originally revised from L. 1882, ch. 410, § 1324.

52. Action on undertaking when warrant vacated. If the warrant of attachment is vacated or annulled the defendant may maintain an action upon the bond and undertaking specified in the last two sections, in his own name, in the same manner and with the like effect as the plaintiff might have done if the warrant had remained in full force.

Former § 87. § 87 originally revised from L. 1882, chap. 410, § 1325.

§ 53. Return by marshal attaching.

The marshal executing the warrant of attachment must at the time when and the place where it is returnable make a return thereto under his hand, stating all his proceedings thereon. He must deliver to the clerk, with the return, each bond or undertaking delivered to him, pursuant to any of the foregoing provisions of this article, and a copy, certified by him, of the inventory of the property attached. The return must state the manner in which the warrant and inventory were served, and, if they were served otherwise than by delivering a copy thereof to the defendant personally, the reason therefor and the name of the person to whom the copy was delivered, unless his name is unknown to the marshal, in which case the return must describe him so as to identify him as nearly as may be. Former 88 slightly amended.

410, § 1326.

§ 88 originally revised from L. 1882, ch.