Notice of motion to set aside plaintiff's proceedings. the defendant to bail, and afterward obtained possession of the property under the provisional remedy given in section 206 of the Code. Having a right to no remedy but that first chosen, the affidavit, requisition and undertaking must be set aside on motion, and the property restored to the defendant. Chappel v. Skinner, 6 How. 338. The motion will be proper where the affidavit upon which the plaintiff obtained the delivery of the goods is defective. Depew v. Leal, 2 Abb. 131; Wisconsin Marine and Fire Insurance Co. Bank v. Hobbs, 22 How. 498. So where the plaintiff proceeds as in an action of replevin, but demands relief inconsistent with such action, this motion will be proper. Spalding v. Spalding, 3 How. 297; S. C., 1 Code R. 64; Dows v. Green, 3 How. 377; Seymour v. Van Curen, 18 id. 94. The party seeking this relief by motion should put in only a limited or special appearance, as a general notice of appearance will be deemed a waiver of irregularities. Hyde v. Patterson, 1 Abb. 248. So where the defendant gives a counter security, and obtains a redelivery, he will waive his right to set aside the plaintiff's proceedings. Nicoll v. Pinner, 10 How. 376; Wisconsin Marine and Fire Ins. Co. Bank v. Hobbs, 22 id. 494. Notice of Motion to set aside Plaintiff's Proceedings. SUPREME COURT. A. B., plaintiff, agst. C. D., defendant. Sir: Take notice, that upon the affidavit, a copy of which is herewith served upon you, and upon the complaint and all the proceedings in this action, the undersigned will move this court at the next special term thereof, to be held at the on the day of in the of 18 at the opening of the court, or as soon thereafter as counsel can be heard, that the affidavit made by the plaintiff in this action, and the requisition to the sheriff in the county of indorsed thereon, and all proceedings taken by the plaintiff or by the said sheriff, respectively, by virtue thereof, may be set aside as void (and irregular for that, etc., specifying the irregularity), and that the property taken by the sheriff, under said affidavit and requisition, may be restored by him to the said defendant (and for the costs of this motion), or for such further order or relief as the court may grant in the premises. Dated 18 Yours, etc., Attorney for defendant. To G. H., Redelivery of property to defendant. Section 12. Redelivery of property to defendant. a. In general. Under the former practice no provisions were made for the return to the defendant of the property taken in replevin, except where judgment had been rendered in his favor in the progress of the action. Section 211 of the Code gives to the defendant three days in which to determine whether he will allow the plaintiff to hold the property taken, or will cause it to be restored to his own possession. If he elects to reclaim the property, he must, within these three days, require the officer who served the replevin papers to return the property to him, at the same time delivering to the officer the undertaking required in section 211 of the Code. M'Cann v. Thompson, 13 How. 380; Graham v. Wells, 18 id. 376. The effect of this demand is, not to entitle the defendant to an immediate return of the property, but to prevent its delivery to the plaintiff. To perfect the defendant's right to a redelivery of the property taken, he must proceed to have his sureties justify as provided in section 212 of the Code. Graham v. Wells, 18 How. 376. When the sureties have so justified, the sheriff must deliver the property to the defendant. Code, § 212; Grant v. Booth, 21 How. 354. Notice by defendant to Sheriff to return Property. (Title of cause.) To , sheriff of You are hereby required to return to the defendant the personal property taken and held by you in this action. (Date.) Section 13. Undertaking given by the defendant. (Signature.) a. In general. In order to obtain the return of the property taken by the sheriff, the defendant must deliver to the sheriff a written undertaking executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against the defendant. Code, § 211. When more than two sureties join in executing the undertaking the entire sum in which they must justify must be in the aggregate equivalent to that of two sufficient bail. Thus, if the value of the property as stated in the plaintiff's affidavit is $20,000, each of the Undertaking by defendant in replevin. sureties executing the undertaking, if there are but two of them, must make oath that he is worth the sum of $40,000, over and above all debts and liabilities; or, if there are more than two sureties to the undertaking, they must justify in the aggregate amount of $80,000. Grant v. Booth, 21 How. 354; Graham v. Wells, 18 id. 376. The promise contained in the undertaking may be made to the plaintiff or to the sheriff, or it may be made generally, specifying no particular obligee. Slack v. Heath, 4 E. D. Smith, 95; Decker v. Judson, 16 N. Y. (2 Smith) 439. Undertaking by Defendant in Replevin. SUPREME COURT. A, B., plaintiff, agst. C. D., defendant. Undertaking on the part of the defendant to prevent the delivery of personal property. WHEREAS, The plaintiff in this action has claimed the delivery to him of certain personal property specified in the affidavit made on behalf of the plaintiff for that purpose, of the alleged value of dollars, and has caused the same to be taken by the sheriff of the county of , pursuant to the second chapter of the seventh title of the second part of the Code of Procedure, but the same has not yet been delivered to the plaintiff. AND WHEREAS, the defendant is desirous of having the said personal property returned to him: Now, therefore, we, M. N., by occupation a and O. K., of of , by occupation a do hereby undertake and become bound to the plaintiff in the sum of dollars, for the delivery of the said property to the plaintiff, if such delivery shall be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant in this action. Dated STATE OF NEW YORK, } County of On this day of M. N. O. K. A. D. 18, before me, the subscriber, appeared M. N. and O. K., to me personally known to be the same persons described in and who executed the above undertaking, and severally acknowledged that they executed the same. (Signature.) STATE OF NEW YORK, } M. N. and O. K., being severally sworn, each for himself says, the said M. N. says he is a householder of the county of in this State, and that he is worth in property not exempt from execution the sum of dollars, over and above all debts Justification of defendant's sureties. and responsibilities which he owes or has incurred; and the said O. K. for himself says, that he is a freeholder of the county of in this State, and that he is worth in property not exempt from execution the sum of dollars, over and above all debts and responsibilities which he owes or has incurred. day} (Signature.) Sheriff's approval of Sureties. M. N. I certify that I approve of the sureties in the foregoing undertaking. O. P., Sheriff. Section 14. Justification of defendant's sureties. a. In general. The defendant's sureties, upon a notice to the plaintiff, of not less than two nor more than six days, must justify before a judge in the same manner as upon bail on arrest. Code, § 212. But there is no prescribed time within which the sureties must give this notice or appear and justify. The plaintiff has ample security for the property independently of such justification. Graham v. Wells, 18 How. 376. Notice of Justification to be Annexed to a Copy of the (Title of cause.) Undertaking. Take notice, that the sureties in the annexed undertaking will justify before the Hon. at the in the at (Date.) a justice of the at chambers, of on the day of 18, "Plaintiff's Attorney. Section 15. Sheriff's liability. until justification. a. To defendants. The sheriff's liability to the defendant commences with the taking of the property described in the affidavit of the plaintiff. It is continued until the expiration of the three days within which the defendant must except to the plaintiff's sureties, if at all. If no objection is raised within that time, the sheriff's liability to the defendant is at an end. But, if within that time the defendant excepts to the plaintiff's sureties, the Sheriff's liability to plaintiff Liability to third parties. sheriff's liability will continue until the sureties have justified or new ones have been substituted and justified. b. To plaintiff. But if, before the three days have expired, the defendant, on a proper undertaking, requires the return of the property, the sheriff's liability to the plaintiff commences and continues until the defendant's sureties have justified. Should these sureties fail to justify, the sheriff will be liable until he has delivered up the property to the party prevailing in the action. Code, §§ 210, 212; Graham v. Wells, 18 How. 376. Whenever the sheriff is liable to either party to the action, he is entitled to retain, in his own possession, the property taken. Ib. Where the defendant has been arrested in the action, and has given the undertaking with sureties, as prescribed in section 211, and thereupon has been discharged from arrest, the sheriff will become liable in the same manner and to the same extent as the original bail, if the sureties fail to justify; and if the plaintiff recovers in the action, the sheriff may be compelled to satisfy the judgment, either by producing and delivering the specific property, or by paying such sum as may, from any cause, be recovered against the defendant. McKenzie v. Smith, 27 How. 20. c. Liability to third parties. The liability of a sheriff to a third party whose goods he has taken upon a replevin process, is based upon principles and measured by rules totally different from those which determine his liability in taking the goods of a stranger upon an execution or an attachment. If an execution is issued against the property of A., and the sheriff takes the property of B. thereon, he will be liable to an action at the suit of B. The same rule applies, where, upon an attachment against the property of A., the property of B. has been taken. Rogers v. Weir, 34 N. Y. (7 Tiff.) 463. But if in an action of replevin the sheriff is required by his process to take from the possession of A. certain specified chattels which are in fact the property of B., no action will lie against him for the trespass. Hallett v. Byrt, Carthew, 380; Foster v. Pettibone, 20 Barb. 350; King v. Orser, 4 Duer, 431; Shipman v. Clark, 4 Denio, 446; State v. Jennings, 14 Ohio St. 73; Willard v. Kimble, 92 Mass. (10 Allen) 211. The reason for this distinction is to be found in the requirements of the process under which the sheriff acts in the several cases mentioned. The command inserted in an execution is general and merely directs the taking of the property |