ATTACHMENTS §§ 969-970 1. He must pay over to the plaintiff all money attached by him, and the proceeds of all sales of perishable property, or of any vessel or share or interest therein, or animals, sold by him, or of any debts, or other things in action collected or sold by him; or so much thereof as is necessary to satisfy the judgment. 2. If any balance remains due, he must sell under the execution the other personal property attached, or so much thereof as is necessary; including rights or shares in the stock of an association or corporation, or a bond or other instrument for the payment of money, executed and issued, with the interest coupons annexed, if any, by a government, state, county, public officer, or municipal or other corporation, which is in terms negotiable, or otherwise, whether past due, or yet to become due; but not including any other debt or thing in action. are insufficient to satisfy the judgment and the execution requires him to satisfy If the proceeds of that property it out of any other personal property of the defendant, he must sell the personal property upon which he has levied by virtue of the execution. If the proceeds of the personal property applicable to the execution are insufficient to satisfy the judgment, the sheriff must sell under the execution all the right, title and interest which the defendant had in the real property attached at the time when the notice was filed, or at any time afterwards, before resorting to any other real property. 3. If personal property attached, belonging to the defendant, has passed out of the hands of the sheriff without having been sold or converted into money, and the attachment has not been discharged as to that property, he must regain possession thereof if practicable; and for that purpose he has all the authority which he had to seize the same under the warrant. property from him is liable to double damages at the suit of the party aggrieved. A person who willfully conceals or withholds such 4. Until the judgment is paid, he may collect the debts and other things in action attached, and prosecute any undertaking, which he has taken in the course of the proceedings, and apply the proceeds thereof to the payment of the judgment. 5. At any time after levying the attachment, the court, upon the petition of the plaintiff, accompanied with an affidavit specifying fully all the proceedings of the sheriff since the levy under the warrant, the property attached, and the disposition thereof; and the affidavit of the sheriff showing that he has used diligence in endeavoring to collect the debts and other things in action attached, and that a portion thereof remains uncollected, may direct the sheriff to sell the remaining portion, upon such terms and in such manner as it thinks proper. Notice of the application must be given to the defendant's attorney if the defendant appeared in the action. the summons was not personally served on the defendant, and he did not appear, the court may make such order as to the service of notice as it thinks proper, or If may grant the application without notice. Source CCP 708 unchanged-Revisers' Note. Star (*) means read Not into note heading. History-Subd 1 taken from CP 8 237 subd 1 (Arkenburgh 114 AD 436, 99 NYS 1127, afd 188 NY 552). amendment to CP in c 438, laws 1849 (Scott Subd 4 originally adopted as 94 NY 508). Debts collected against defendant's father's decedent estate (Arkor sold Unliquidated claim enburgh 114 AD 436, 99 NYS 1127, afd 188 NY 552). Personalty properly sold-Foreign corporation, certificates of stock of (PxWynn 167 AD 572, 152 NYS 679). Person concealing property Hable-Returned to sheriff, not wilful (Scott 94 NY 508). Debts and things in action collectible-*Injunction pending, restraining collection (Shea 149 AD 583, 134 NYS 315). Not attached (Nassau Bank 44 Hun 55). Warehouse receipt (Castriotis 229 NY 74). 99 NYS 1127, afd 188 NY 552). debtor's liability for money embezzled by sheriff 8970. When attached property to be restored to defendant. Where a warrant of attachment is vacated or anulled, or an attachment is discharged, upon the application of the defendant, the sheriff, except in a case where it is otherwise specially prescribed by law, must deliver over to the defendant, or to the person entitled thereto, upon reasonable demand, and [in case of the discharge of the attachment], upon payment of all costs, charges and expenses, legally chargeable by the sheriff, all the attached personal property remaining in his bands, or that portion thereof as to which the attachment is discharged; or the proceeds thereof if it has been sold by him. Source CCP § 709, amended as indicated by brackets-Revisers' Note. The provision for payment to the sheriff of costs, charges and expenses as a condition of the surrender by him of attached property where the warrant has been vacated or annulled or the attachment discharged has been held unconstitutional so far as relates to the case of an attachment vacated or annulled. Bowe 36 Hun 407; Weston 45 Hun 219, approved in PittsfieldNatl Bank 140 NY 321; Lawlor 2 AD 552, 38 NYS 36, afd 149 NY 591; O'Brien 43 Mis 327, 87 NYS 131; French 179 AD 371, 165 NYS 86. Star (*) means read Not into note heading. Section constituional-*In so far as to compel defendant to pay sheriff's fees upon vacation of attachment (O'Brien 43 Mis 327, 87 NYS 131: Bowe 36 Hun 407, 8 CivP 33, 2 HowNS 440). In what cases restoration made Day 87 NY 56. No service of summous or publication within period; replevin maintainable (Peetsch 31 AD 255, 53 NYS 438). Over objection of plaintiff, on payment of fees (Jones 114 AD 120, 99 NYS 789). Vacation of attachment (Harnick 178 NYS 136), person whose claim sheriff bound by to contest (Bowe 1 HowNS 21). * Payment of costs and expenses legally chargeable necessary-Bankruptcy causing dissolution of attachment (Wilkinson 80 AD 378, 81 NYS 82). *Poundage where attachment remains as to part of property sufficient to pay it (Plummer 88 AD 452, 85 NYS 107). Rent of premises to store property, on previous agreement (Bowe 36 Hun 407, 8 Civl 33, 2 HowNS 440). Sheriff's fees: on discharge by defendant giving undertaking (Jones 119 AD 817, 104 NYS 935; Lawlor 16 Mis 151, 38 NYS 297, 25 CivP 235; Lawlor 2 AD 552, 38 NYS 36, dis 149 NY 591), on vacation (Bowe 66 How 41; Hall 66 How 31, 4 CivP 148; Bowe 4 CivP 154). Cited as to-Attorney, of defendant liable for sheriff's fees on attachment vacated (GadskiTauscher 44 Mis 418, 89 NYS 1019). Compensation of sheriff (Woodruff 90 NY 521). Defendant liable for sheriff's fees (Esselstyn 82 AD 474. 81 NYS 532). Election of remedies by sheriff to recover fees on attachment (Hall 34 Hun 467). Limitation of action for wrongful delivery of attached property to third person by sheriff (Bernard 41 F 30). Nonliability of obligors on bond given to indemnify sheriff for wrongful refusal to surrender property (Bowe 105 NY 322). Payment of sheriff's fees on discharge of libel in admiralty (Georgeanna 31 F 405). Poundage lien on discharge of attachment by defendant giving undertaking, discharged (Haase 38 NYS 432). Power of court to direct payment of poundage by defendant (Treadwell Co 75 AD 478, 78 NYS 283). Taxing sheriff's fees on attachment issued by state court before removal of cause (Cincinnati 207 F 768). Vacation of attachment conditioned on payment of fees, not allowed (Union DistrictCo 6 NYS 539). § 971. Additional provision for defendant's relief. Where the sheriff is required by this act to deliver attached property or the proceeds thereof to the defendant, he must also deliver to him, unless otherwise specially directed by the court or judge, all books of account, vouchers, evidence of debt, muniments of title, or other papers, relating to the property, either real or personal, or to its proceeds; together with all undertakings relating thereto which he has taken in the course of the proceedings and which have not been fully satisfied; except an undertaking given by the defendant upon the discharge of property. He also must deliver a written assignment, duly acknowledged, of each undertaking so delivered, and of each other instrument to which the defendant is thus entitled, an assignment of which is necessary to perfect or protect the defendant's title thereto. The defendant, upon his own application only, also must be substituted in place of the sheriff, or the sheriff and the plaintiff jointly, in an action brought as prescribed in this act; but the court or judge may impose, as a condition of granting the order of substitution, such terms as justice requires, with respect to indemnity and payment of expenses. The defendant's right with respect to property attached and not disposed of, and an undertaking or other instrument to which he is thus entitled, are the same as those of the sheriff, while the warrant was still in force, except where his rights are specially defined or regulated by law. Source CCP § 710, substance unchanged-Re- not relating to personalty seized (SpringfieldNat visers' Note. Bank 180 AD 406, 167 NYS 476). Documents which need not be delivered-Books § 972. Cancelling notice attaching real property. At any time after the warrant of attachment has been vacated or annulled, or the attachment has been discharged as to real property attached, the court, in its discretion, upon the application of any person aggrieved and upon such notice as it deems just, may direct that any notice, filed for the purpose of attaching the property, be cancelled of record by the clerk of the county where it is filed and recorded. The cancellation must be made by a note to that effect on the margin of the record, referring to the order; and, unless the order is entered in the same clerk's office, a certified copy thereof must be filed therein at the same time. Source CCP § 711 unchanged-Revisers' Note. | denied Effect to annulment of warrant suspendMotion to cancel notice filed with clerk on levy ed by stay (McKean 24 Mis 511, 53 NYS 980). § 973. When sheriff to return warrant and his proceedings. Where a warrant of attachment has been vacated or annulled, the sheriff forthwith must file in the clerk's RECEIVERS §§ 973-974 office a warrant with a return of his proceedings thereon. Upon the application of either party, and proof of the sheriff's neglect, the court may direct him so to do, forthwith, or within a specified time. Source CCP 712 unchanged-Revisers' Note. Sheriff must return warrant-Altho his term of office expired before warrant annulled (Bernard 41 F 30). cated nor annulled (Tuck 63 Hun 345, 17 NYS Return of attachment not authorized-Neither va915, afd 137 NY 630). § 974. Receivers, generally. In addition to the cases where the appointment of a receiver is specially provided for by law, a receiver of property which is the subject of an action in the supreme court or a county court may be appointed by the court, in either of the following cases: 1. Before final judgment, on the application of a party who establishes an apparent right to, or interest in, the property, where it is in the possession of an adverse party and there is danger that it will be removed beyond the jurisdiction of the court, or lost, materially injured, or destroyed. 2. By or after the final judgment, to carry the judgment into effect, or to dispose of the property, according to its directions. 3. After final judgment, to preserve the property during the pendency of an appeal. The word "property," as used in this section, includes the rents, profits, or other income, and the increase, of real or personal property. Source CCP 713 unchanged-Revisers' Note. | terlocutory judgment tho parties in possession "Interest in, the property"-Inserted for express purpose of covering receivership in mortgage foreclosure (Hollenbeck 94 NY 342). Remedy exclusive-So far as section covers appointment of receivers (Dazion 66 AD 575, 73 NYS 328). equitable to do so (US 32 Mis 378, 66 NYS not parties to suit (Smith 13 Hun 671), *inCo 180 AD 69, 167 NYS 245), mortgagor sol1), mortgagor responsible (Manhattan LifeIns vent, property adequate (USLifeInsCo 32 Mis 378. 66 NYS 1; Degener 6 NYS 474: Shotwell quate or mortgagor insolvent (Syracuse 31 Barb 3 EdwCh 588). *not appearing property inadeAppointment of receiver before final judgment quate and mortgagor insolvent (Bursh BrewingCo proper-Action: *no allegation moneys will be 201: Burlingame 12 Hun 144), property inadelost or defendant insolvent (Gillig 5 NYS 380), *recover money (O'Mahoney 62 NY 133). 41 AD 204, 58 NYS 812), *value of premises in excess poration: insolvent (Mosher 88 Hun 394, 34 NYS swering (Conroy 150 AD 832, 135 NYS 419). of debt (Eidlitz 40 AD 446, 59 NYS Cor- 54), without notice to owner, who defaulted an816), on mere allegation of mismanagement *Mortgagee not entitled as matter right to rewithout showing defendant insolvent (Hastings ceiver, tho mortgage so stipulates (Schwarz 178 121 AD 815, 106 NYS 639). (Walling 108 NY 173), debtor having large 542, 109 NYS 968; Brick 19 Mis 218. 43 NYS Creditor's action AD 641. 165 NYS 491; Jarmulowsky 125 AD amount of personal property (Starr 1 Barb 70). 301). Fraud: danger of further waste of securities (O'Mahoney 62 NY 133). Partnership action, but (Ashley 59 AD 611, 69 NYS 173), defendant not for dissolution: *no allegation defendant not *No facts showing alleged fund in danger denying fraud (Congelton 56 AD 67, 67, NYS responsible (Greenwald 118 AD 29. 103 NYS 747), no specific property claimed (Mack 74 123), oust defendant from management but not AD 145, 77 NYS 574). *Fraudulent conveyance, to set aside, plaintiff protected by lis pendens 708). for dissolution (Shubert 122 AD 701. 107 NYS (National Bank 38 AD 123, 56 NYS 545). solvent defendant and danger property will be dis- berg 53 Mis 13. 102 NYS 925 Kirkwood 64 AD Partnership dissolution In- 262): *existence of partnership in doubt (Bim(Smith sipated (Morse 155 AD 633, 140 NYS 1043). 615. 72 NYS 291), *no claim defendants insol2 NYS *Interpleader, property in possession of plaintiff vent (LaFemina 72 AD 474. 76 NYS 576). *annul agreement respecting, plaintiff not show- partnership not terminated (Greenwald 118 AD Day 46 AD 148. 61 NYS 793), *partnerLand: ship denied (McCarty 16 Mis 132, 38 NYS 820). ing moneys which defendant will receive will 29, 103 NYS 123), *success of partnership due more than equal his claim (Rappaport 135 AD to one partner, who is solvent (Cohn 132 AD 386, 120 NYS 461), enforce lien on in danger 849. 117 NYS 633). of being lost (Gallagher 27 Hun 375), recover showing all other appropriate available remedies possession of held by purchaser (Guernsey 9 Hun exhausted (Liby 68 AD 15. 74 NYS 57). *Replevin: plaintiff not 79) Lispendens, plaintiff adequately protected cific performance, vendee in possession (Pomerantz by (Jones 40 F 314). Mortgage foreclosure (Hol- 141 AD 864, 126 NYS 649). lenbeck 94 NY 342, rvg 29 Hun 94: Curren 106 ing interest in property not party to *SpeMis 652, 176 NYS 573; Fletcher 35 AD 586. (Shubert 122 AD 701, 107 NYS 708). *Third person hav55 NYS 146; HollandCo, 85 Hun 454, 32 NYS after, but before judgment to continue receiver830) after commencement of action, if security ship. 30 days after judgment or decision after in jeopardy (Hamilton 36 Hun 139), after in-appeal (Colwell 119 NY 408). Will, determine action *Trial, validity of (Johnson 91 Hun 163, 36 NYS 287). Appointment by final judgment proper-Order made before judgment but in contemplation of judgment (Colwell 4 NYS 7). Appointment after final judgment proper-PxPost 5 NYS 726. Insolvent corporation: to carry judgment into effect (King 51 Hun 550, 4 NYS 247, afd 113 NY 476), to collect assets (Glines 68 Hun 511, 22 NYS 1023). Appointment to preserve property during appeal pendency proper-Colwell 119 NY 408. Mortgage foreclosure, ground rent in arrears and security doubtful (Howard 170 NY 498). *Receiver appointed before final judgment cannot be continued pending appeal (Colwell 4 NYS 5). "Property"-Only property subject of action (PxPost 5 NYS 726). Who may not apply-Person (O'Mahoney 62 NY 133). not interested Who may appoint Court on own motion (O'Mahoney 62 NY 133). Mortgage foreclosure in discretion of supreme court (Rider 84 NY 461). Supreme court irrespective of any express contract between parties (Woerishoffer 120 AD 319. 105 NYS 506), this section (Hollenbeck 94 NY 342, rvg 29 Hun 94; King 51 Hun 550, 4 NYS 247, afd 113 NY 476). Not within section-Partnership dissolution, appointment of receiver under CCP § 1947 (Alford 29 Hun 633). Receivers of insolvent corporations (Mabon 156 NY 196; PxPost 5 NYS 726). Cited but not applied-Grover 72 AD 575, 76 NYS 559. § 975. Application for appointment of receiver. Notice of an application for the appointment of a receiver in an action, before judgment therein, must be given to the adverse party, unless he has failed to appear in the action and the time limited for his appearance has expired. But where an order has been made [directing the service of the summons upon a defendant by publication], the court, in its discretion, may appoint a temporary receiver, to receive and preserve the property, without notice, or upon a notice given by publication or otherwise, as [may be] proper. But where the action is for the foreclosure of a mortgage, which mortgage provides that a receiver may be appointed without notice, notice shall not be required. Source CCP § 714, substance unchanged-Re- | diction of insolvent corporation obtained by service visers' Note. Star (*) means read Not into note heading. Section mandatory-Appointment without notice void unless within exceptions (Dazian 66 AD 575, 73 NYS 328). and appearance by attorney (Ettlinger 66 Hun 94, 20 NYS 772, afd 142 NY 189). Mortgage so providing (Cohn 182 AD 245, 169 NYS 604). *Not within exceptions (Jarmulowsky 125 AD 542, 109 NYS 968). Order for publication made (Straus 181 AD 877, 169 NYS 442; Fletcher 35 AD 586, 55 NYS 146; Citizens' SavBank 11 AD 63, 42 NYS 481; Forster 73 Hun 244, 25 NYS *No order for publication made (Finck 171 NYS 408; Coleman 37 Mis 517, 75 NYS 973). Owner in default, foreclosure action (Con. roy 150 AD 832, 135 NYS 419). Persons entitled to notice All who have appeared in action (Attrill 25 Hun 509). Defendant who has appeared (Frankenstein 73 AD 352, 76 NYS 818). *Receiver in supplementary pro-1032). ceedings of property of mortgagor, not being adverse party (Grover 72 AD 575, 76 NYS 559). Receiver appointed without notice Altho parties have stipulated for notice, but inability to give notice or prejudice from delay should appear (Woerishoffer 120 AD 319, 105 NYS 506). Juris Cited but not applied-McCarthy 13 Hun 579; Curren 106 Mis 652, 176 NYS 573. § 976. Security. A receiver, appointed in an action or special proceeding, must execute and file with the proper clerk, before entering upon his duties, a bond to the people, with sufficient sureties, in a penalty fixed by the court, judge or referee making the appointment, conditioned for the faithful discharge of his duties as receiver. The court, or, where the order was made out of court, the judge making the order by or pursuant to which the receiver was appointed, or his successor in office, at any time may remove the receiver or direct him to give a new bond, with new sureties, with the like condition. But the foregoing provisions of this section do not apply to a case where special provision is made by law for the security to be given by a receiver, or for increasing the same, or for removing a receiver. A receiver who, having executed and filed a bond as provided for in this section, before presenting his accounts as receiver, must give notice to the surety or sureties on his official bond of his intention to present his accounts, not less than eight days before the day set for the hearing on said accounting. The same notice must be given to such surety or sureties where the accounting is ordered on the petition of a person or persons other than the receiver, and in no case shall the receiver's accounts be passed, settled or allowed, unless the said notice provided for in this section shall have first been given to the surety or sureties on the official bond of such receiver. Source CCP § 715, substance unchanged-Revisers' Note. Star (*) means read Not into note heading. Bond required-Receiver appointed in matrimonial action (Spies 92 AD 175, 86 NYS 1043; See note 6 CivP 399). Bond sufficient-As common law bond altho running to plaintiff Instead of people (Carl 51 AD 5, 64 NYS 1077). Receiver de facto, obligors estopped to deny validity of appointment (Thomp son *Not executed by receiver or approved (Edgerley 140 AD 419, 125 NYS 353). Removing receiver-See note on (6 CivP 400). Who is proper clerk"-Clerk of county in which action triable (MulsteinCo 213 NY 308). Notice of accounting necessary-Omission prevents action against surety on bond (Stratton 86 AD 551, 83 NYS 780), in absence of misconduct constituting breach of contract of suretyship (Stratton 69 AD 322, 74 NYS 670). Notice of accounting insufficient-Not written no 16 AD 160, 44 NYS 723). *Executed to clerk instead of to people (Gillin 9 StR 538),tice (Brand 149 NYS 1072). § 977. Powers of receivers to hold real property. A receiver appointed by or pursuant to an order or a judgment in an action in the supreme court or a county court may take and hold real property upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respecting the disposition thereof. § 978. Disposition of property in action or proceeding. Where it is admitted by the pleading or examination of a party, that he has, in his possession or under his control, money or other personal property capable of delivery, which, being the subject of the action or special proceeding, is held by him as trustee for another party, or which belongs or is due to another party, the court, in its discretion, may grant an order, upon notice, that it be paid into or deposited in court, or delivered to that party, with or without security, subject to the further direction of the court. Source CCP § 717 unchanged-Revisers' Note. I was a firm debtor altho selected to liquidate partDelivery of money not ordered-Firm funds not nership affairs (Weston 8 NYS 633). ordered delivered by one to another partner who Cited but not applied-Winkler 22 AÚNC 87. § 979. Disposition of property by sheriff on order of court. Where the court has directed a deposit or delivery, as prescribed in the last section, or where a judgment directs a party to make a deposit or delivery, or to convey real property, if the direction is disobeyed, the court, by order, besides punishing the disobedience as a contempt, may require the sheriff to take, and deposit or deliver, the money or other personal property, or to convey the real property, in conformity with the direction of the court. Source CCP § 718 unchanged-Revisers' Note. Cited but not applied-Lamaster 20 AыNC 151. § 980. Sale of perishable property. It shall be lawful for the court in which an action or special proceeding is pending, or a judge thereof, on the application of any party, to make any order for the sale, by any person or persons named in such order, and in such manner, and on such terms as the court or judge may think desirable, of any goods, wares, or merchandise, which are the subject of such action or special proceeding, and which may be of a perishable nature or likely to be injured from keeping. Source New; derived from English Practiceorder 50, rule 2--Revisers' Note. Section ARTICLE 62 REAL PROPERTY ACTIONS; GENERAL PROVISIONS 981. Defendant, how prevented from committing waste or damage. 982. When order for survey may be made. 983. Contents and service of order. 984. Authority of party under order. 985. When and how court may compel delivery of possession of real property to purchaser, 986. Sale; notice of; how conducted. 987. Purchases by certain officers prohibited; penalty. 988. Persons bound by judgment in certain actions. 989. Special proceedings to recover real property. |