§ 622. [Repealed, 1877.] § 623. [Amended, 1877.] Damages, how ascertained. The damages, sustained by reason of an injunction, may be ascertained and determined by the court, or by a referee, appointed by the court, or by a writ of inquiry, or otherwise, as the court shall direct; and the decision of the court thereupon, or an order confirming the report of the referee, is conclusive, as to the amount of those damages, upon all the persons who have executed the undertaking, unless it is reversed upon appeal. The court may, in its discretion, direct that the sureties have notice of the hearing, or of an appeal, and may prescribe the time and manner of giving them notice. Co. Proc., last sentences of 222 and 224, and part of 145: 2 R. S. 190. Lawton v. Green, 64 N. Y. 326; Garcie t. Sheldon, 3 Barb. 232; Wilde v. Joel, 15 How. 320; Patterson v. Bloomer, 9 Abb. N. S. 27; Hotchkiss v. Platt, 7 Hun, 56; Bray v. Poillon, 4 T. & C. 663 ; s. c., 2 Hun, 383; Leavittv. Dabney, 2 Sweeney, 613. What damages may be recovered: See Lawton . Green, supra; Hotchkiss e. Platt, & Hun, 46; Hovey v. Rubber Tip Pencil Co., 33 N. Y. Supr. 428; 50 N. Y. 335; Park v. Musgrave; Troxell . Haynes, 16 Abb. N. S. 1; McDonald . James, 38 N. Y. Supr. 76; Andrews v. Glenville Woolen Co., 50 N. Y. 282; Roser. Post, 56 id. 603; Disbrow v. Garcia, 52 id. 654; Baylis v. Scudder, 6 Hun, 300; Allen v. Brown, 5 Lans. 511. $624. Damages sustained by a third person.Where the defendant enjoined was an officer of a corporation, or joint-stock association, or a bailee, a gent, trustee, or other representative of another, and the damages, sustained by him, are less than the sum specified in the undertaking, the court or the referee may also separately ascertain and determine the damages sustained, by reason of the injunction, by the corporation, association, or person, whom the defendant represents, to an amount not exceeding the surplus of the sum specified in the undertaking; and those damages may be recov ered in a separate action, brought as prescribed in the next section. New. Andrews v. Glenville W. Co., 50 N. Y. 282. - $625. Action on the undertaking. Where the damages have been ascertained by the decision of the court, or the confirmation of a referee's report, as prescribed in the last two sections, any person, entitled to the benefit of an undertaking, executed pursuant to the pro visions of this title, may bring an action thereon, without further leave of the court. New. See Griffing v. Slate, 5 How. Pr. 205; Higgins v. Allen, 6 id. 30; N. Y. C. Ins. Co. v.Safford, 10 id. 344; Wilde v. Joel, 15 Id. 320; Hovey v. Rubber Tip Pencil Co., 47 id. 289. ARTICLE THIRD. VACATING OR MODIFYING AN INJUNCTION ORDER. SEO. 626. Application to vacate or modify, without notice. 627. Id.; upon notice. 628. When prior motion not to prejudice subsequent application, 629. New undertaking may be required. 630. Verified answer to have the effect only of an affidavit. § 626. Application to vacate or modify, without notice. - Where the injunction order was granted without notice, the party enjoined may apply, upon the papers upon which it was granted, for an order vacating or modifying the injunction order. Such an application may be made, without notice, to the judge who granted the order, or who held the term of the court where it was granted; or to the general term of the court. It cannot be made without notice, to any other judge or term, unless the applicant produces proof, by affidavit, that, by reason of the absence or other disability of the judge who granted the order, the application cannot be made to him; and that the applicant will be exposed to great injury, by the delay required for an application upon notice. The affidavit must be filed with the clerk: and a copy thereof, and of the order vacating or modifying the injunction order, must be served upon the plaintiff's attorney, before that order takes effect New. $ 627. [Amended, 1879.] Application to vacate or modify upon notice. Where the injunction order was granted without notice, or where it was granted upon notice, with leave to apply to vacate or modify it, the party enjoined may apply, upon notice, to the judge who granted it, or to the court, at a term where a contested motion in the action may be heard, for an order, vacating or modifying the injunction order. Such an application may be founded upon the papers upon which the injunction was granted; or upon proof, by affidavit, on the part of the defendant; or both. Where it is founded upon proof on the part of the de fendant, it may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain the injunction. Co. Proc., 225 and 226, am'd. Affidavit includes verified answer. See 1630, post. Fowler r. Burns. 7 Bosw. 637; Hollinsv. Mallard, 10 How. 540. See Voorhies' and Walt's Codes, note; 2 Walt's Pr. 113 et seq. § 628. When prior motion not to prejudice subsequent application. The granting or denial of an ap plication, made as prescribed in the last section, founded only upon the papers upon which the injunction order was granted, does not prejudice a subsequent application, seasonably made, founded upon proof, by affidavit, on the part of the defendant. And the granting or denial of either application does not prejudice a subsequent application, seasonably made, founded upon the failure of a complaint, which had not been made at the time of the former application, to set forth a cause of action, sufficient to entitle the plaintiff to the injunction ⚫rder, upon one or more grounds, recited therein. New. § 629. New undertaking may be required. Upon the hearing of an application, upon notice, to vacate or modify an injunction order, the court or judge may require a new undertaking, in the same or in a different sum, to be given by the plaintiff, with the like sureties, and to the like effect, as upon granting an original order. The persons executing the new undertaking become liable thereon, as if they had executed it upon the granting of the original order. The persons who executed the original undertaking remain liable thereon, until the new undertaking is given and approved, and no longer. New. $630. Verified answer to have the effect only of an affidavit. — Upon the hearing of a contested applica tion for an injunction order, or to vacate or modify such an order, a verified answer has the effect only of an affidavit. New. § 631. [Repealed, 1877.] § 632. [Repealed, 1877.] § 633. [Repealed, 1877.] 634. [Repealed, 1877.] TITLE III. Attachment of property. ARTICLE 1. Cases where a warrant of attachment may be granted; and proceedings upon granting the same. 2. Executing the warrant, pending the action. 3. Vacating or modifying the warrant; discharging the attach ment. 4. Regulations where there are two or more warrants against the same defendant. 5. Proceedings after judgment; rights of parties and duties of the sheriff, after the warrant is vacated or annulled, or the attachment discharged. ARTICLE FIRST. CASES WHERE A WARRANT OF ATTACHMENT MAY BE GRANTED; AND PROCEEDINGS UPON GRANTING THE SAME. 8EO. 635. In what actions a warrant of attachment may be granted. 636. What must be shown to procure the warrant. 637. Warrant in action against public officer, etc., for peculation. 638. When and by whom the warrant may be granted. 639. Affidavits to be filled. 640. Security on obtaining warrant. 641. Contents of warrant; to whom directed. 642. Validity of undertaking. § 635. [Amended, 1877.] In what actions a warrant of attachment may be granted. A warrant of attachment against the property of one or more defendants in an action, may be granted upon, the application of the plaintiff, as specified in the next session,* where the action is to recover a sum of money only, as damages for one or more of the following causes: 1. Breach of contract, express or implied, other than a contract to marry (1) 2. Wrongful conversion of personal property. 3. Any other injury to personal property, in consequence of negligence, fraud or other wrongful act. This and the following sections are substitutes for Co. Proc., 227 and 229. "Injury to property." See 2. subd. 9, temporary act, post. Attachment not a matter of right. Sartwell. Field (Ct. App.), 15 Alb. I. J. 332. See notes to Voorhies' and Wait's Codes, 18 227 and 229. (1) Crossman v. Lindsley, 42 How. 107. § 636. [Amended, 1877.] What must be shown to procure the warrant. To entitle the plaintiff to such Error in engrossing for "section". a warrant, he must show, by affidavit, to the satisfaction of the judge granting the same, as follows:(1) 1. That one of the causes of action specified in the last section exists against the defendant. If the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him.(2) 2. That the defendant is either a foreign corporation or not a resident of the State; or, if he is a natural person and a resident of the State, that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein 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 State, 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.(3) (1) Manton v. Poole. 4 Hun, 638; Fitzgerald v. Belden, 49 How. 225; Richter v. Wise, 6 T. & C. 70; s. c., 3 Hun, 398; Kifer v. Webster, 6 id, 526; Crandall e. McKays, id. 483 (2) Richter v. Wise, 6 T. & C. 70; s. c., 3 Hun, 398. (3) Mayor r. Genet, 63 N. Y. 646; Ogdensburgh, etc., R. R. Co. r. Lake Champlain R. R. Co., 6 T. & C. 488; Fitzgerald v. Belden, 49 How. 225: Blake e. Bernhard, 6 T. & C. 74; s. c., 3 Hun, 396; Yates v. North, 44 N. Y. 271; Murphy v. Baldwin, 41 How. 270. Of National Banks: Southwick e. First National Bank, 7 Hun, 96; Central National Bank v. Richland National Bank, 52 How. 136. 637. [Amended, 1877.] Warrant in action against public officer, etc., for peculation.-A warrant of attachment, against the property of one or more defendants in an action, may also be granted, upon the appli cation of the plaintiff, where the complaint demands judgment for a sum of money only; and it appears, by affidavit, that the action is brought to recover money, funds, credits, or other property, held or owned by the State, or held or owned, officially or otherwise, for or in behalf 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 in the obtaining, reception, payment, conversion, or disposition of which, without right, he has aided or abetted; or to recover damages for so obtaining, receiv |