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costs, the two bills of cost are within the undertaking, and the obligor is liable therefor (Tibbles v. O'Connor, 28 Barb. 538).

a. An error in the recital in an undertaking as to the date on which the affidavit was made,-held not to vitiate the undertaking (Hyde v. Patterson, 1 Abb. 248); and semble, the court will allow a new undertaking to be given nunc pro tunc, when the one given in the first instance is defective (Newland v. Willets, 1 Barb. 20; 2 R. S., 556).

b. As to disposition of undertaking, see § 423, post.

c. Seizure. The sheriff can only take the property described in the affidavit of the plaintiff when the property is found in the possession of the defendant himself or of his agent (King v. Orser, 4 Duer, 431). Where the sheriff took possession of property claimed by a third party, and such third party commenced an action against the sheriff and the plaintiff in the first action for such taking, to recover possession of the same property, and issued a requisition to the coroner to retake the property,-held, that the proceedings of claim and delivery in that action were irregular, and that there is only one way in which a third party, claiming goods taken by the sheriff, in proceedings of claim and delivery, can assert his claim, and that is pursuant to section 216 (Edgerton v. Ross, 6 Abb. 189; see Stimpson v. Reynolds, 14 Barb. 506; Haskins v. Kelly, 1 Rob. 160).

d. Assignment by a defendant who prevails in an action of claim and delivery, of the judgment and all moneys to be obtained by means thereof. vests in the assignee the defendant's rights upon the undertaking on the part of the plaintiff (Bowdoin v. Coleman, 3 Abb. 431).

See note to §§ 210, 216, 423.

$210. Exception to sureties.

The defendant may, within three days after the service of a copy of the affidavit and undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice, in like manner as upon bail on arrest. And the sheriff shall be responsible for the sufficiency of the sureties, until the objection to them is either waived, as above provided, or until they shall justify, or new sureties shall be substituted and justify. If the defendant excpet to the sureties, he cannot reclaim the property, as provided in the next section.

e. The sureties failing to justify does not warrant a motion to dismiss the complaint (Manley v. Patterson, 3 Code Rep. 89).

$211. (Am'd 1849.)

Defendant, when entitled to redelivery. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the

payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so required within three days after the taking and serving of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section 216.

a. Return.-At any time before the plaintiff is entitled to the deliverythat is, at any time within the three days-the defendant may require the return, &c. (M'Cann v. Thompson, 13 How. 380).

6. Undertaking.—An undertaking, under this section, is not invalid because taken in the name of the plaintiff in the action (Slack v. Heath, 4 E. D. Smith, 95; 1 Abb. 331; and see Decker v. Judson, 16 N. Y. 443).

c. Where the defendant claims a redelivery, and gives an undertaking under this section, which undertaking states that he, defendant, requires a return of the property, such undertaking is competent evidence to go to the jury to disprove an allegation in the answer that the defendant does not detain the property. It is for the jury to say to how much weight such an undertaking is entitled (Black v. Foster, 28 Barb. 387).

d. Possession of property.-During the three days in which the defendant may elect whether or not he will demand a return of the property, the sheriff is required to retain the property in his possession. If the defendant elect to demand a return the sheriff is still to retain possession until the defendant's sureties justify, unless he, the sheriff, is willing to take the risk of such justification. The effect of the defendant's demand of the property within three days is, not to entitle the defendant to the property, but to prevent a delivery to the plaintiff (Graham v. Wells, 18 How. 376).

e. Action on undertaking.-It is no defense to an action against the sureties that having been excepted to they failed to justify. The bringing suit on the undertaking is a waiver of the exception. Where the undertaking is to the party, he may sue on it, without any assignment thereof to him (Decker v. Anderson, 39 Barb. 346; see ante, p. 154, b, c).

f. Restitution.-There is no provision for the restitution of the property to the plaintiff after its redelivery to the defendant under this section (Hunt v. Mootrey, 10 How. 478).

§ 212. (Am'd 1849.) Justification of defendant's sureties. The defendant's sureties, upon a notice to the plaintiff of not less than two nor more than six days, shall justify before a judge or justice of the peace, in the same manner as upon bail on arrest; upon such justification, the sheriff shall deliver the property to the defendant. The sheriff shall be responsible for the defendant's sureties, until they justify, or until justification is completely or expressly waived, and may retain the property until that time: but if they, or others in their place, fail to justify at the time and place appointed, he shall deliver the property to the plaintiff.

g. Justification of sureties.-The time within which defendant's sureties are to justify, is not limited (18 How. 376). When more than two sureties justify, the whole justification must be equivalent to two sufficient sureties (id.) Where three sureties justify to the required amount, the sheriff cannot withhold a redelivery to defendant, because with the undertaking was delivered to the sheriff an affidavit of the sureties, in which they deposed to being

worth a less sum than the amount required, and less than that in which they afterwards justified. The affidavit was unnecessary (Grant v. Booth, 21 How. 354).

a. Where, in an action for the delivery of personal property, the defendant has been arrested under an order pursuant to subd. 3 of § 179, and has given the undertaking with sureties provided by § 211 for delivery of the property to the plaintiff, and been thereupon liberated from arrest, and the process returned, but his sureties on being excepted to fail to justify,-held, that in such case, the sheriff himself, by such omission, became liable as bail (McKenzie v. Smith, 27 How. 20).

b. The judgment in replevin having been for damages only, and not for the delivery of the property, the sheriff is not liable for such damages by reason of the failure to justify of sureties who, on the arrest of the defendant in replevin, had given an undertaking for the delivery of the property if adjudged, and for the payment of such sum as for any other cause might be recovered against such defendant. To render him liable, there must be a judgment under the execution on which the property might be sought and delivered (Gallarati v. Orser, 27 N. Y. 324).

§ 213. (Am'd 1849.) Qualifications and justification of sureties.

The qualifications of sureties, and their justification, shall be as are prescribed by sections 194 and 195, in respect to bail upon an order of arrest.

214. Property, how taken when concealed in building or inclosure.

If the property or any part thereof be concealed in a building or inclosure, the sheriff shall publicly demand its delivery. If it be not delivered, he shall cause the building or inclosure to be broken open, and take the property into his possession; and, if necessary, he may call to his aid the power of his county.

§ 215. Property, how kept.

When the sheriff shall have taken property, as in this chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking, and his necessary expenses for keeping the same.

c. The sheriff is required to use more than ordinary diligence in taking care of the property (Moore v. Westervelt, 21 N. Y. 103; 27 N. Y. 234).

§ 216. Claim of property by third person.

If the property taken be claimed by any other person than the defendant or his agent, and such person shall make affidavit of his title thereto and right to the possession thereof, stating the grounds of such right and title, and serve the same upon the sheriff, the sheriff shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him or

his agent, shall indemnify the sheriff against such claim, by an undertaking, executed by two sufficient sureties, accompanied by their affidavit, that they are each worth double the value of the property as specified in the affidavit of the plaintiff, and freeholders and householders of the county. And no claim to such property by any other person than the defendant or his agent shall be valid against the sheriff unless made as aforesaid; and notwithstanding such claim, when so made, he may retain the property a reasonable time to demand such indemnity.

a. This section applies only when the property is taken by the sheriff in the proper discharge of his duty, and not when the property is wrongfully taken (King v. Orser, 4 Duer, 431; see note to section 209, ante).

8 217. Filing notice and affidavit.

The sheriff shall file the notice and affidavit, with his proceedings thereon, with the clerk of the court in which the action is pending, within twenty days after taking the property mentioned therein.

CHAPTER III.
Injunction.

SECTION 218. Writ of injunction abolished, and order substituted. 219. Temporary injunction, in what cases granted.

220. At what time it may be granted.

221. Injunction after answer.

222. Security upon injunction. Damages, how ascertained.

223. Order to show cause why injunction should not be granted.

224. Security, upon injunction, to suspend business of corporation.

225. Motion to vacate or modify injunction.

226. Affidavits on motion.

$218. Injunction by order.

The writ of injunction as a provisional remedy is abolished, and an injunction by order is substituted therefor. The order may be made by the court in which the action is brought, or by a judge thereof, or by a county judge, in the cases provided in the next section; and when made by a judge may be enforced as the order of the court.

a. Kinds of injunction.-Injunctions in an action with reference to their duration, are of two kinds-temporary and final. The temporary injunction issues before, and the final injunction contemporaneously with, the judgment. Injunctions also issue in special cases, as in proceedings supplementary to the execution, &c. What is now called a temporary injunction was, before the code, known as a preliminary injunction. This chapter has no reference to final injunctions. The granting or refusing a final injunction was always a matter of strict right, depending on the rules of equity, and these are in no wise affected by this chapter (See Linden v. Fritz, 5 How. 188; Howard v. Ellis, 4 Sand. 374; N. Y. Life Ins. Co. v. Supervisors of N. Y. 4 Duer, 200). This chapter relates solely to temporary injunctions (Roberts v. Anderson, 2 Johns. Ch. R. 202). All injunctions are temporary which are pendente lite. Permanent injunctions can be obtained only by judgment (7 Rob. 400); granting or refusing a temporary injunction is a matter resting in discretion ('Cafferty v. Glazier, 10 How. 475; Minor v. Terry, 6 id. 210; Crocker v. Baker, 3 Abb 183). The code is permissive only (Bruce v. Delaware Canal Co. 19 Barb. 371). It is considered that this chapter very materially enlarges the class of cases in which a temporary injunction may be allowed (Gure v. Crawford, 5 How. 293; Perkins v. Warren, 6 How. 341; Malcomb v. Miller, id. 456; Thompson v. Comm's of Canal Fund, 2 Abb. 248; Reubens v. Joel, 13 N. Y. 488; Merritt v. Thompson 3 E. D Smith, 295). But it cannot be construed to create new rights of action or give new remedies ( Wordsworth v. Lyon, 5 How. 463).

6. Injunction can only go against a party to the action.— (Watson v. Fuller, 9 How. 426; Fellows v. Fellows, 4 Johns. Ch. R. 25; Waller v. Harris, 7 Paige, 167). But a defendant cannot object that a person not a party to the action is enjoined (Tradesman's B'k v. Merrit, 1 Paige, 302). The court will discharge the injunction as to such person on his application (id.) And it has been said the court will not attach him for disobeying the injunction (Watson v. Fuller, 9 How. 426).

c. Injunction never retroactive.-(The People v. Albany R. R. Co. 12 Abb. 171).

d. Board of Health.—Supreme court only has jurisdiction to enjoin (Laws 1867, p. 2410; Burnham v. Acton, 7 Rob. 395).

e. Who may grant.-The motion for an injunction may be made at a general term (Drake v. Hudson R. R. Co. 2 Code Rep. 67), and in certain cases before a county judge. See section 403, post. A judge related by affinity to one of the defendants in an action cannot grant an injuuction in such action (New Haven R. R. Co. v. Schuyler, 28 How. 187).

$219. (Am'd 1849.) Injunction, in what cases.

[1] Where it shall appear by the complaint, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or,

[2] When during the litigation it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.

[3] And where, during the pendency of an action, it shall ap

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