An order of a arrest, warrant of attachment
or requisition to replevy, issued by or out of the City Court of Albany,
shall be served and executed by a Marshal of said Court.
An order to arrest the defendant must be granted
upon the application of the plaintiff, directed to any Marshal of
said Court, in the following cases, but no female can be arrested
except for a willful injury to person or property:
A. In an action for the recovery of damages, in a cause
of action not arising on contract, when the defendant is not a resident
of the City of Albany or any town adjoining thereto within the County
of Albany, or is about to remove therefrom, or when the action is
for a willful injury to person or property.
B. In an action for a fine or penalty, or for money or
property embezzled or wrongfully misapplied or converted to his own
use by a public officer, or an officer, of a corporation, or an attorney,
factor, broker, agent or Clerk, in the course of his employment as
such, or by any other person acting in a fiduciary capacity.
C. Where the defendant has been guilty of a fraud in
contracting the debt, or incurring the obligation for which the action
is brought, or in concealing or disposing of the property for the
taking, detention, or conversion of which the action is brought, except
that no order of arrest shall be granted in an action specified in
this subsection where the debt contracted or the obligation incurred
over all payments and setoffs or the property taken, obtained or converted,
amounts to, or is valued at one hundred dollars ($100.) or less.
D. When the defendant has removed, concealed, or disposed
of his property, or is about to do so, with the intent to defraud
his creditors, except that no order shall be granted in such an action
unless the plaintiff's claim or demand over all payments and setoffs
exceeds one hundred dollars ($100.).
Before an order of arrest shall issue, the party
applying must prove to the satisfaction of the Court, by the affidavit
of himself or some other person, the facts on which the application
is founded, and the amount of his debt or claim over all payments
and setoffs. The plaintiff must also execute and file with the Clerk
of the Court, a written undertaking, to the effect that if the defendant
recovers judgment the plaintiff will pay to him all costs that may
be awarded to the defendant, and all damages which he may sustain
by reason of the arrest not exceeding the sum specified in the undertaking,
which must be double the amount claimed. But the proof and security
required by this section shall not be necessary where the order of
arrest is issued for the violation of a bylaw or ordinance of the
City of Albany, or for the recovery of a penalty or a forfeiture under
the statutes of this state, where the City of Albany or any department
of the government of said City authorized by statute to maintain an
action, or if the people of the State of New York are plaintiffs.
An order of arrest must direct that the summons
accompanying it be made returnable immediately upon the arrest of
the defendant, and it must specify the amount of the undertaking or
the sum which the defendant must furnish in order to be released from
custody.
The Marshal, upon arresting the defendant, by virtue of such an order, must at the same time serve upon him the summons, and also a copy of the order of arrest, and of the papers upon which it was granted. He must forthwith bring the defendant before the Court, if the Court is then in session; otherwise, unless undertaking is given, or deposit, made as prescribed in §Â
30-49 of this article, he must take the defendant to the jail of the county. The keeper thereof must confine the defendant therein. On the next day thereafter when said Court is in session, the Marshal must take the defendant from the jail and bring him before the Court.
The Marshal making the arrest must immediately
give notice thereof to the plaintiff, and indorse on the order of
arrest, and subscribe a certificate stating the time of serving the
same, and of giving notice to the plaintiff.
The defendant may deliver to the Marshal a written
undertaking to the plaintiff, in the sum specified in the order of
arrest, executed by one (1) or more sureties, to the effect that the
defendant will attend in person at the opening of the Court on the
next day thereafter when it is there in session, or he may deposit
with the Marshal the sum specified in the order of arrest. In either
case the Marshal must forthwith release him from custody.
The defendant may give the undertaking, or make
the deposit, immediately upon his arrest, at any hour of the day or
night; and he must have reasonable opportunity to seek for and procure
sureties to the undertaking or the amount of deposit required, before
being committed to jail. Where a deposit is made, the money deposited
must, before the expiration of the next day thereafter, not being
Sunday, or a public holiday, be paid by the Marshal into court, by
paying the same directly to the Clerk thereof, which said deposit
shall be regarded as an undertaking, and shall have the same force
and effect and no other.
At any time after the return of the Marshal,
and before final judgment, the Court may order a defendant released
from custody upon filing an undertaking or making a deposit. The sum
to be deposited, or the sum specified in the undertaking, must be
fixed by the Court. The undertaking must be to the effect that the
defendant will at all times render himself amenable to any mandate
which may be issued, to enforce a final judgment against him in the
action.
Unless undertaking is given, or a deposit is
made, as prescribed in the last three (3) sections, the defendant
must remain in the jail by virtue of the order of arrest, until final
judgment in the action; and if the judgment is against the defendant,
until the return of an execution against property issued thereupon.
But the Court must direct him to be brought into court at the time
of trial; and it may, in its discretion, direct him to be brought
into court at any other time. In either case he must be taken from
the jail, and brought into court accordingly. Nothing in this section
shall be so construed as to prevent a defendant at any time after
judgment from being admitted to the jail liberties in the manner provided
by law, whether formal execution against the person has issued or
not.
The Marshal making the arrest, or another Marshal
by direction of the Court, must keep the defendant in custody, unless
he shall give the security for his appearance, or until he is duly
discharged by order of the Court; but in no case can such detention
exceed forty-eight (48) hours, excluding Sundays and legal holidays,
from the time of his first being brought before the Court, unless
within that time the trial of the action be commenced, and formally
proceeded with, and resumed without any interruption other than the
necessary recess of the Court.
If the defendant makes application for an adjournment,
or demands a jury trial at the time he is brought before the Court,
before it can be granted, he must, unless he has given an undertaking
or made a deposit, execute an undertaking to the effect that he will
appear on the adjourned day, and not depart until duly discharged
according to law, or until after the trial and judgment, and that
he will surrender himself into custody if any execution be issued
upon the judgment when obtained against him in the action.
A defendant, arrested as prescribed in this article, may, without notice, upon the appearance of the plaintiff before the Court, or at any time afterward before judgment, upon two (2) days' notice given personally to the plaintiff, or to his agent or attorney who appeared for him before the Court, apply to the Court for an order discharging him from arrest. The application may be founded upon the papers upon which the order of arrest was granted, and upon the complaint, if it has been made. The Court must grant the application, where it appears that the case is not within the provisions of §Â
30-44 of this article. The Court must also, upon the defendant's application, grant an order discharging him from arrest, if the plaintiff fails to take out an execution, upon a judgment in his favor, before the expiration of twenty-four (24) hours after he is entitled thereto.
This article does not abridge or otherwise affect
a privilege from arrest given by law, or a right of action for the
breach thereof. A privileged person is entitled to be discharged from
arrest, by the order of the Court before which he is brought, upon
proof, by affidavit, of the facts entitling him to a discharge; or
he may apply for and obtain an order for his discharge, as prescribed
in § 841 of the Civil Practice Act.