A warrant of attachment against the property of one (1) or more defendants must be granted, upon the application of the plaintiff, as hereinafter prescribed, in an action upon one (1) or more of the following causes of action:
A. 
Upon a judgment.
B. 
Breach of contract, express or implied.
C. 
Wrongful conversion of personal property.
D. 
Any injury to person or property, in consequence of negligence, fraud or misconduct.
To entitle the plaintiff to such a warrant, he must show, by affidavit, to the satisfaction of the Court, as follows:
A. 
That a sufficient cause of action exists against the defendant to recover damages for one (1) or more causes specified in the last section. If the action is upon a judgment, or to recover 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.
B. 
That the defendant is either a foreign corporation, or not a resident of the City of Albany or any town adjoining thereto within the County of Albany; or, if the defendant is a natural person, and a resident of the City of Albany or any town adjoining thereto within the County of Albany, that he has departed, or is about to depart from the City of Albany or from any town adjoining thereto within the County of Albany, where he last resided to a place outside the City of Albany and any town adjoining thereto within the County of Albany, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed, 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 City of Albany or from any town adjoining thereto within the County of Albany, where the defendant, being a natural person, last resided, or being a corporation, has kept its principal office, to a place outside of the City of Albany and any town adjoining thereto within the County of Albany, 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; or where for the purpose of procuring credit or the extension of credit, the defendant has made a false statement in writing, under his own hand and signature, or under the hand and signature of a duly authorized agent, made with his knowledge and acquiescence, as to his financial responsibility or standing. Or that the defendant being a natural person of full age, and a resident of the City of Albany or any town adjoining thereto within the County of Albany, has been continuously without the United States for the space of six (6) months or more, immediately before the application, and either that he has not made a designation of a person upon whom to serve a summons in his behalf as prescribed in § 227 of the Civil Practice Act,[1] or that service upon the person so designated cannot be made, with due diligence, in the City of Albany or any town adjoining thereto within the County of Albany. The affidavit must be filed in the office of the Clerk of the Court.
[1]
Editor's Note: See now § 318 of the Civil Practice Law and Rules.
The warrant must be granted by the Court at the time when the summons is issued, and must be issued by the Clerk of the Court, and it must be indorsed upon or annexed to the summons. It must be subscribed by the Clerk, and must briefly recite the ground of the attachment. It must require the Marshal, to whom the summons is delivered, to attach on or before a day specified therein, which must be at least six (6) days before the return of the summons, and safely to keep, as much of the defendant's personal property, within the City of Albany or within any town adjoining thereto within the County of Albany, as will satisfy the plaintiff's demand, with the costs and expenses and to make return of his proceedings thereon to the Court, at least three (3) days before the summons is returnable. The amount of the plaintiff's demand must be specified in the warrant as stated in the affidavit.
Before granting the warrant, the Court must require a written undertaking to the defendant, on the part of the plaintiff, to the effect that, if the defendant recovers judgment, or the warrant of attachment is vacated, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which must be at least twice the amount of the plaintiff's demand, as stated in the warrant, and in no case less than two hundred dollars ($200.), and that if the plaintiff recovers judgment, he will pay to the defendant all money received by him from property taken by virtue of the warrant of attachment, or upon any bond given therefor, over and above the amount of the judgment and interest thereupon.
The Marshal to whom the warrant of attachment is delivered must execute it at least six (6) days before the return day of the summons, by levying upon so much of the property of the defendant hereinafter mentioned, as will satisfy the plaintiff's demand with costs and expenses and must safely keep the same to be disposed of as prescribed in this Part 2 and must immediately make an inventory thereof stating therein the estimated value of each article or item. Such levy can be made on the following property:
A. 
Goods and chattels of the defendant found in the City of Albany or within any town adjoining thereto within the County of Albany, not exempt from levy and sale by virtue of an execution, including money and bank notes.
B. 
The rights or shares which the defendant has in the stock of an association or corporation having a place of business in the City of Albany or in any town adjoining thereto within the County of Albany together with the interests and profits thereon, and the Marshal's certificate of the sale thereof entitles the purchaser to the same rights and privileges, with respect thereto, which the defendant had, when they were so attached.
C. 
Causes of action arising upon contract, including bonds, promissory notes, or other instruments for the payment of money only, negotiable or otherwise, whether past due, or yet to become due, executed by a corporation, or by a private person, either within or without the state, which belong to the defendant, and are found within the City of Albany or any town adjoining thereto within the County of Albany, and the levy of the attachment thereupon is deemed a levy upon, and a seizure and attachment of, the debt represented thereby.
A levy under a warrant of attachment upon personal property capable of manual delivery, including a bond, a promissory note, or other instrument for the payment of money, must be made by taking the same into the Marshal's actual custody. He must thereupon, without delay, deliver to the person from whose possession the property is taken, if any, a copy of the warrant, undertaking, and of the affidavits upon which the warrant was granted. Upon other personal property, it must be made by leaving a copy of the warrant, undertaking affidavits and a notice showing the property attached, with the person holding the same; or if it consists of a demand, other than as specified in this section, with the person against whom it exists; or, if it consists of rights or shares in the stock of an association or corporation, or interests or profits thereon, with the president, or other head of the association or corporation, or the secretary, cashier or managing agent thereof, if any personal property which the Marshal desires to levy upon, under a warrant of attachment is secured or concealed in a building or enclosure, the Marshal must publicly demand its delivery. If it is not delivered pursuant to the demand he may cause the building or enclosure to be broken open and may take such personal property into his possession.
Upon the application of a Marshal, holding a warrant of attachment, the president or other head of an association or corporation, or the secretary, cashier or managing agent thereof, or a debtor of the defendant, or a person holding property, including a bond, promissory note or other instrument for the payment of money, belonging to the defendant, must furnish to the Marshal a certificate, under his hand, specifying the rights or number of shares of the defendant, in the stock of the association or corporation, with all dividends declared, or encumbrances thereon, or the amount, nature and description of the property held for the benefit of the defendant, or of the defendant's interest in property so held, or of the debt or demand owing to the defendant, as the case requires.
If a person to whom application is made, as prescribed in the last section, refuses to give such a certificate; or if it is made to appear by affidavit, to the satisfaction of the Court, that there is reason to suspect that a certificate given by him is untrue, or that it fails fully to set forth the facts required to be shown thereby, the Court may make an order directing him to attend at the Court, at a specified time and submit to an examination, under oath, concerning the same.
The Marshal must, subject to the direction of the Court, collect and receive all debts, effects and things in action attached by him. He may maintain any action or special proceeding in his own name or in the name of the defendant, which is necessary for that purpose, or to reduce to his actual possession an article of personal property, capable of manual delivery, but of which he has been unable to obtain possession, and he may discontinue such an action or special proceeding at such time and on such terms as the Court directs.
Where a warrant of attachment or a writ of replevin is vacated or annulled, or an attachment is discharged, upon the application of the defendant, the Marshal must, except in a case where it is otherwise expressly prescribed by law, upon an order made by the Court to that effect, deliver over to the defendant, or to the person entitled thereto, upon reasonable demand, and upon payment of all costs, charges and expenses legally chargeable by the Marshal, all the attached personal property remaining in his hands, or that portion thereof as to which the attachment is discharged; or the proceeds thereof, if it has been sold by him.
The Marshal must, immediately after making inventory, and at least six (6) days before the return day of the summons, serve the summons, together with the warrant of attachment and inventory, upon the defendant, by delivering to him personally a copy of each, if he can, with reasonable diligence, be found within the City of Albany or in any town adjoining thereto within the County of Albany, or if he cannot be so found, by leaving a copy of each, at the last place of residence of the defendant in the City of Albany or in any town adjoining thereto within the County of Albany, with a person of suitable age and discretion, or if such person cannot be found there, by posting them on the outer door, and also depositing another copy of each in the post office, enclosed in a sealed post-paid wrapper, directed to the defendant at his residence; or if the defendant has no place of residence in the City of Albany or in any town adjoining thereto within the County of Albany by delivering them to the person in whose possession the property attached is found.
The defendant, or his attorney, or agent in his behalf, may, at any time before judgment is rendered in the action, execute and deliver to the Marshal an undertaking to the plaintiff in a sum specified therein, at least twice the value of the property attached, as stated in the inventory, with one (1) or more sureties, approved by the Marshal or by a Justice of the Court, and to the effect that if the judgment is rendered against the defendant and an execution is issued thereupon, within six (6) months after the giving of the undertaking, the property attached shall be produced to satisfy the execution. Thereupon the Marshal must deliver the property to the defendant.
If a person, not a party to the action, claims any property attached, which is not reclaimed by the defendant, as prescribed in the last section, he may, at any time after the seizure and before execution is issued upon a judgment rendered in the action, execute and deliver to the Marshal an undertaking in a penalty at least twice the value of the property claimed, and conditioned that, in an action upon the undertaking to be commenced within three (3) months thereafter, the claimant will establish that he was the general owner of the property claimed at the time of the seizure; or if he fails so to do, that he will pay to the plaintiff the value thereof, with interest. The Marshal must thereupon deliver the property claimed to the claimant.
A judgment for the plaintiff, in an action upon a bond, given as prescribed in the last section, must award to him the value of the property seized and delivered to the claimant with interest thereupon from the time of the delivery. If the amount so recovered exceeds the amount which the plaintiff recovers in the action in which the warrant of attachment was issued, he is liable to the defendant in that action for the excess.
If the warrant of attachment is vacated or annulled, the defendant may maintain an action, upon the undertaking specified in the last two (2) sections, in his own name, in the same manner and with the like effect as the plaintiff might have done if the warrant had remained in full force.
The Marshal executing the warrant of attachment must, at the time when and the place where it is returnable, make a return thereto, under his hand, stating all his proceedings thereupon. He must deliver to the Clerk, with the return, each undertaking delivered to him, pursuant to any of the foregoing provisions of this article, and a copy certified by him, of the inventory of the property attached. The return must state the manner in which the warrant and inventory were served, and, if they were served otherwise than by delivering a copy thereof to the defendant personally, the reason therefor, and the name of the person to whom the copy was delivered, unless his name is unknown to the Marshal; in which case the return must describe him so as to identify him, as nearly as may be.
A defendant, whose property has been attached, may, upon the return of the summons, or before such return on written notice of at least twenty-four (24) hours to the plaintiff or his attorney, apply to the Court to vacate or modify it, or to increase the plaintiff's security. Such an application may be founded upon the papers upon which the warrant was granted; or upon proof, by affidavit, on the part of the defendant, or upon both. If it is founded upon proof on the part of the defendant, it may be opposed by new proof, by affidavit, upon the part of the plaintiff, tending to sustain any ground for the attachment, recited in the warrant, but no other. The Court may, upon the return of the summons, or at any other time to which the action is adjourned, vacate the warrant of attachment upon his own motion, if he deems the papers upon which it was granted insufficient to authorize it.
Vacating the warrant of attachment does not affect the jurisdiction of the Court to hear and determine the action where the defendant has appeared generally in the action; or where the summons was served personally upon him, or where judgment may be taken against him, as being indebted jointly with another defendant, who has been thus summoned or has thus appeared. In every other case the Justice who vacates a warrant of attachment against the property of a defendant must dismiss the action as to him.
Where the defendant has not appeared, and the summons has not been personally served upon him, and property of the defendant has been duly attached by virtue of a warrant which has not been vacated, the Court must proceed to hear and determine the action; but in an action subsequently brought, the judgment is only presumptive evidence of the indebtedness, and the defendant is not barred from any counterclaim against the plaintiff. The execution, issued upon a judgment so rendered, must require the Marshal to satisfy it out of the property so attached, without containing a direction to satisfy it out of any other property.