upon him by the order previously made. Kelly v. Jeroloman, 7 Rob. 158.

f. Effect of want of jurisdiction.Want of jurisdiction over the person of one of the defendants is sufficient to discharge him from the force of the injunction when this fact appears on the return of the order to show cause. So held where one of the defendants

was a foreign consul. Sippile v. Albites, 5 Abb. N. S. 76.

g. Appeal.-An appeal to the general term, from an ex parte order to show cause, will not lie. Bloodgood v. Erie Railway Co. 51 Barb. 273; and see Watt v. Watt, 30 How. 345; S. C. 2 Rob. 685; 3 id. 615; Bank of Genesee v. Spencer, 15 How. 142.

§ 224. [197.] (Am'd 1849.) Security, upon injunction to suspend business of corporation.

An injunction to suspend the general and ordinary business of a corporation shall not be granted except by the court or a judge thereof. Nor shall it be granted without due notice of the application therefor to the proper officers of the corporation, except where the people of this State are a party to the proceeding, and except in proceedings to enforce the liability of stockholders in corporations and associations for banking purposes, after the first day of January, one thousand eight hundred and fifty, as such proceedings are or shall be provided by law, unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be approved by the court or judge, to the effect that the plaintiff will pay all damages, not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference or otherwise, as the court shall direct.

See ante, § 222, n. III, subd. a.

a. Injunction to suspend business. | Laws of 1870, chap 171. § 1. An injunction to suspend the general and ordinary business of a corporation or a joint-stock association, to restrain or prohibit any director, trustee or manager of a corporation or joint-stock association from the performance of his duties as such, shall not be granted, except by the court, and upon a notice of at least eight days of the application therefor to the proper officers of the corporation, or to the director, trustee or manager to be enjoined or restrained; and an injunction granted for any of the said purposes, except by the court and upon the notice in this section prescribed, shall be void.

b. Removal or suspension of officers.-Id. § 2. No officer or director of a corporation shall be suspended or removed from office otherwise than by the judgment of the supreme court in a civil action, in the cases prescribed by the Revised Statutes; and all actions and proceedings against a corporation, when the relief sought or which can be grant

ed therein shall be the dissolution of such corporation or the removal or suspension of any officer or director thereof, shall be brought by the attorney-general in the name of the people of the State.

c. Receiver-notice of appointment. Id. § 3. A receiver of the property of a corporation can be appointed only by the supreme court in a civil action, and in one of the fol

lowing cases, upon at least eight days' notice of the application therefor to the proper officers of such corporation.

1. In a civil action brought by a judgment creditor of the corporation, or his representatives, after execution has been issued upon such judgment and returned unsatisfied in whole or in part.

2. In a civil action brought by a creditor of the corporation for the foreclosure of a mortgage, upon the property over which the receiver is appointed, and when the mortgage debt, or interest thereon, has remained unpaid at least thirty days after it became due, and was duly demanded from the proper officers of the corporation, and when either the income of such property is specifically mortgaged, or the property itself is probably insufficient to pay the amount of the mortgage debt.

3. In a civil action brought by the attorney general for a dissolution of the corporation when it appears to the court that such dissolution ought to be adjudged.

4. In a civil action brought by the attorney general or by the stockholders to preserve the assets of a corporation, having no officer empowered to hold the same.

5. In the case specifically mentioned in title four, chapter eight, part three, of the Revised

Statutes.

d. Penal provisions-service of notice.-Id. § 4. Any director or other officer

§ 225. [198.] Motion to vacate or modify injunction.

If the injunction be granted by a judge of the court, or by a county judge, without notice, the defendant, at any time before the trial, may ap ply, upon notice, to a judge of the court in which the action is brought, to vacate or modify the same. The application may be made upon the complaint and the affidavits on which the injunction was granted, or upon af fidavits on the part of the defendant, with or without the answer.

inflexible, and one exception is, where the plaintiff has not taken steps to expedite his cause, and another exception is where the defendants upon whom the real gravamen rests have answered. id. And there are still other exceptions. id.

d. Motion to dissolve-questions involved. On a motion to dissolve an injunction, the court must decide, on all the motion papers, whether the plaintiff has or has not a right to the injunction; and if the plaintiff's right is obscure or doubtful, the benefit of the doubt must be given to the defendant, and the injunction dissolved. Secor v. Weed, 7 Rob. 67, commenting on Carpenter v. Danforth, 19 Abb. 225, and Dubois v. Budlong, 15 id. 445. See, also, Schaefer v. Herb, 7 Rob. 222; Crocker v. Baker, 3 Abb. 182; Falconer v. Elias, 3 Sandf. 731; S. C. 1 Code R. N. S. 155.

The effect of a temporary injunction granted under the third clause of section 219 is not to restrain any removal whatever of the defendant's property, but only such a removal or disposition as is accompanied or preceded by fraudulent intentions; and therefore, on a motion to dissolve such injunction, the only question to be considered is that of fraudulent intent. Brewster v. Hodges, 1 Duer, 609.

the bill or complaint is denied by the answer, the foundation on which the injunction rested is taken away; and this is good ground for dissolving the injunction. Secor v. Weed, 7 Rob. 67; Durant v. Einstein, 35 How. 223 (247); S. C. 5 Rob. 423; Hazard v. Hudson River Bridge Co. 27 How. 296; Dubois v. Budlong, 15 Abb. 445; Finnegan v. Lee, 18 How. 186; Gould v. Jacobsohn, 18 id. 158; Blatchford v. New York and New Haven R. R. Co. 5 Abb. 276. And see Pidgeon v. Oatman, 3 Rob. 706; Clark v. Law, 22 How. 426. But if, by any evasiveness in the defendant's answer and affidavits, or by admissions therein, implied or expressed, sufficient appears to satisfy the court that the plaintiff ought to have the injunction; then, notwithstanding, the defendant, by his answer and affidavits seemingly, in words, denies the equity of the complaint and the allegations therein, the injunction may be retained. Secor v. Weed, 7 Rob. 67; Storer v. Coe, 2 Bosw. 661; Litchfield v. Pelton, 6 Barb 187. It seems that it would be grounds for vacating an injunction granted, ex parte, where it is believed that the plaintiff or his attorneys, or some person interested for him, have caused an improper interference of the press in the case, to aid the plaintiff and prejudice the defendants with the courts. Ramsey v. Erie Railway Co. 38 How. 193; S. C. fictitious sales of pledged personal property is 7 Abb. N. S. 156. The mere fact of reporting not sufficient to retain an injunction restrainthe defendants from selling other such pledged property. Durant v. Einstein, 35 How. 233; S. C. 5 Rob. 423.

g. Former practice, answer, nonprosecution.-A mere denial upon infor mation and belief, was not sufficient to author

e. Papers and affidavits.-Where the notice of a motion to vacate an injunction was entitled in the action, stating that the application would be founded on the copy of the injunction and the papers served on the de-ing fendant, held, that this was sufficient, and that it was not necessary to make and serve affidavits to the effect that a suit was pending in the case. Newbury v. Newbury, 6 How. 182; S. C. 10 N. Y. Leg. Obs. 52; 1 Code R. N. S. 409; commenting on and disapproving Os-ize a dissolution of an injunction. The answer born v. Lobdell, 2 Code R. 77. Under the Code, a motion to dissolve an injunction may be opposed on affidavits of any number of witnesses (§ 226); it is, therefore, a matter of judicial discretion, upon balancing the evidence adduced, to dissolve it or not. Crocker v. Baker, 3 Abb. 183; Malcolm v. Miller, 6 How. 456; Minor v. Terry, id. 208; S. C. 1 Code R. N. S. 384; Vande Water v. Kelsey, 2 Code R. 3. The answer, when positively verified, is regarded as an affidavit on which to found an application to vacate. Schoonmaker v. Reformed Protestant Dutch Church of Kingston, 5 How. 265; S. C. 3 Code R. 232; Krom v. Hogan, 4 How. 225; Roome v. Webb, 3 id. 327. And see Minor v. Terry, 6 id. 208. But see note to § 226.

Where the opponent of a motion to vacate admits the material facts stated in the moving papers, but sets up new matter in avoidance, the moving party may put in affidavits in denial of such matter, but cannot himself set up new matter. HILTON, J. in Shearman v. Hartt, 14 Abb. 358. And see Blatchford v. New York and New Haven Railroad Co. 7

Abb. 322.

f. Answer and complaint-grounds for vacating.-Where the whole equity of

must, therefore, be sworn to positively. Attorney General v. Cohoes Co. 6 Paige, 134; Wakeman v. Gillespy, 5 Paige, 112; Apthorpe v. Comstock, Hopk. 143; Ward v. Van Bokkelin, 1 Paige, 100; Rodgers v. Rodgers, id. 426; Roberts v. Anderson, 2 Johns. Ch. R. 202. And it was a good defense to a motion to dissolve an injunction, that the answer did not deny the equities of the bill. Wakeman v. Gillespy, 5 Paige, 112. Even upon a full denial of the equity of the bill, it was not a matter of course to dissolve an injunction if the court could see sufficient reason for retaining it. Bank of Monroe v. Schermerhorn, Clarke's Ch. R. new ed. 309; Moore v. Hyl ton, 1 Dev. Eq. R. 429.

In Perkins v. Warren, 6 How. 341, 349, it was said that the general equity practice had been to dissolve the injunction, if the whole equity of the bill was denied in the answer. And if the plaintiff waived an answer upon oath from all the defendants, and one of them answered on oath, denying the whole equity of the bill, he might move to dissolve the injunction on his answer, notwithstanding his co-defendant had put in an answer without oath. Schermerhorn v. Merrill, 1 Barb. 511.

And although the plaintiff thus waived the necessity of oath on the part of the defendant on bringing in his answer, it was held to be necessary for the defendant to make oath to his answer before he could move to dissolve

an injunction. Manchester v. Dey, 6 Paige, 295; Dougrey v. Topping, 4 id. 94. So with an injunction against a corporation. Fulton Bank v. New York and Sharon Canal Co. 1 Paige, 311.

omitting to serve process on some of the defendants was not a case of want of diligence warranting a dissolution of the injunction. Seebor v. Hess, 5 Paige, 85.

h. Jurisdictional-lex loci.-Where the acts of a foreign corporation, ultra vires according to our law, but infra vires according strained by our court, the injunction will not to the law of its own state, have been rebe sustained. O'Brien v. Chicago, Rock Island 53 Barb. 568; 4 Abb. N. S. 381. and Pacific Railroad Co. 36 How. 24; S. C.

Want of diligence in prosecuting the action was often ground for dissolving an injunction. Schermerhorn v. Merrill, 1 Barb. 511; Waffle v. Vanderheyden, 8 Paige, 46; Seebor v. Hess, 5 id. 85; Ward v. Van Bokkelen, 1 id. 100; Higgins v. Woodward, Hopk. R. 342; Depeyster v. Graves, 2 Johns. Ch. R. 148; Grey v. Duke of Northumberland, 17 Ves. 280. But when the situation of the cause enabled the defendant to proceed, it was otherwise. Schermerhorn v. Merrill, 1 Barb. 511. And | Kanouse, 2 Abb. 390.

i. Appeal.-Where the defendant applied to the special term to dissolve an injunction and for other and further relief, and such motion was denied, and the general term, on appeal, modified the order below by directing one other to be made a party defendant, it was held that such order was regular. Martin v

§ 226. [199.] (Am'd 1870.) Affidavits, on motion.

The application mentioned in the last section may be opposed by affidadavits, or other proofs, in addition to those on which the injunction was granted.

a. Is a verified answer an affida- | vit?-Under the Code, as it was before the amendment of 1870, "if the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the injunction was granted," the decisions were contradictory in regard to whether a verified answer was or was not an "affidavit." This section will now have to be interpreted in connection with the last clause of section 225, and the question may still be of importance. The cases holding that an answer verified is an affidavit, are as follows: Fowler v. Burns, 7 Bosw. 637; Jaques v. Areson, 4 Abb. 282; Hollins v. Mallard, 10 How. 540; Hascall v. Madison University, 1 Code R. N. S. 170; S. C. 8 Barb. 174; Schoonmaker v. Reformed Protestant Dutch Church of Kingston, 5 How. 265; S. C. 3 Code R. 232; Krom v. Hogan, 4 How. 225;

2 Code R. 144; Roome v. Webb, 3 How. 327; S. C. 1 Code R. 114.

The cases holding that an answer verified is not an affidavit upon which to vacate an injunction, are as follows: Blatchford v. Neu York and New Haven Railroad Co. 7 Abb 322; Millikin v. Cary, 3 Code R. 250; S. C. 5 How. 272; Servoss v. Stannard, 2 Code R. 56; Hartwell v. Kingsley, id. 101; S. C. 2 Sandf. 674; Benson v. Fash, 1 Code R. 50. See, also, Minor v. Buckingham, 8 Abb. 68, and Powell v. Clark, 5 Abb. 70; also, Merrimack Manufacturing Co. v. Garner, 2 Abb. 318; S. C. 4 E. D. Smith, 387. See § 225, ante, note e.

b. Motion to continue.-The plaintiff is at liberty to read additional affidavits in support of an application to continue an injunction, when the defendants have read affidavits in opposition to the motion. Childs v. Fox, 18 Abb. 112; S. C. 2 Rob. 650. And a decision to that effect is not reviewable by the general term. Ib.

SECTION 227.

CHAPTER IV.

Attachment.

Property of foreign corporation and of non-resident, or absconding or concealed defendants, may be attached.

228. Warrant, by whom granted.

229. In what cases warrants may be granted.

230. Security in obtaining warrant.

231. Warrant, to whom directed and what to require.

232. Mode of proceeding in executing warrant.

233. Proceedings in case of perishable property or vessels.

234. Interest in corporations or associations liable to attachment.

235. Attachment, how executed on property incapable of manual delivery.

236. Certificate of defendant's interest to be furnished by corporation.

237. Judgment, how satisfied.

238. When action to recover notes, etc. of defendant may be prosecuted by plaintiff in the action in which the attachment issued.

239. Bond to sheriff on attachment, how disposed of, on judgment for defendant. 240. Discharge of attachment and return of property, or its proceeds, to defendant, on his appearance in action.

241. Undertaking on the part of the defendant.

242.

243.

When sheriff to return warrant and proceedings thereon.
Sheriff's fees.

§ 227. (Am'd 1857, 1866.) Property of foreign corporations and of nonresidents, or absconding or concealed defendants may be attached.

In an action arising on contract for the recovery of money only, or in an action for the wrongful conversion of personal property, against a corporation created by or under the laws of any other State, government or country, or against a defendant who is not a resident of this State, or against a defendant who has absconded or concealed himself, or whenever any person or corporation is about to remove any of his or its property from this State, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete any of his or its property, with intent to defraud creditors, as hereinafter mentioned, the plaintiff, at the time of issuing the summons, or any time afterwards, may have the property of such defendant or corporation attached, in the manner hereinafter prescribed, as a security for the satisfaction of such judgment as the plaintiff may recover; and for the purposes of this section an action shall be deemed commenced when the summons is issued; provided, however, that personal service of such summons shall be made, or publication thereof commenced within thirty days.

a. Nature of the remedy by attachment. The remedies afforded by the chapter of the Code relating to attachments are not cumulative; they are the only remedies which the law provides in such cases. Skinner v. Stuart, 39 Barb. 206; S. C. 24 How. 489; 15 Abb. 391. An attachment under the Code is not original process, and by it a suit is not commenced, nor upon it alone can a judgment be obtained; but it is a provisional remedy adopted in a suit already commenced. Furman v. Walter, 13 How. 348; Cole v. Kerr, 2 Sandf. 660. See § 228 (n.) |

The attachment issued under the Revised Statutes (2 R. S. 230, §§ 26, 28, 1st ed; Act of 1831, p. 404, §§ 34, 35, amended by act of 1842, ch. 107, p. 74; 2 R. S. §§ 2, 3, 1st ed.), however, is the original process by which suits are commenced. id. Fraser v. Greenhill, 3 Code R. 172. The remedy under the Code differs from that under the Revised Statutes in another respect; the attachment under the Revised Statutes was for the benefit of all the creditors, while that under the Code is for the benefit of the attaching creditor alone. id. Fisher v. Curtis, 2 Code R. 62; S. C. 2 Sandf. 660.