50 N. Y. Super. Ct. (J. & S.) 301. 50 N. Y. Super. Ct. (J. & S.) 301. 49 N.Y. Sup- 16 Civ. Pro. 31 N.Y.State Rep. 143; 33 Id. 70. 123 N.Y. 138. 72 N. Y. 442; 79 Id. 579. 11 Rep. 750. 35 Hun, 553. 101 N. Y. 539, aff'g, 32 Hun, 612. 128 N.Y. 324. out by the court, upon motion, and upon such terms as the court deems just. § 539. A variance, between an allegation in a pleading and the proof, is not material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. If a party insists that he has been misled, that fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court. Thereupon the court may, in its discretion, order the pleading to be amended, upon such terms as it deems just. § 540. Where the variance is not material, as prescribed in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs. § 541. Where, however, the allegation to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, within the last two sections, but a failure of proof. § 542. Within twenty days after a pleading, or the answer or demurrer thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings already had. But if it is made to appear to the court, that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term, for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just. § 543. Where a pleading is amended, as prescribed in the last section, a copy thereof must be served upon the attorney for the adverse party. A failure to demur to, or answer the amended pleading, within twenty days thereafter, has the same effect as a like failure to demur to, or answer the original pleading. § 544. [Am'd 1877.] Upon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made; including the judgment or decree of a competent Court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof. The party may apply for leave to make a supplemental pleading, either in addition to, or in place of, the former pleading. In the former event, if the application is granted, a provisional remedy, or other proceeding already taken in the action, is not affected by the supplemental pleading; but the right of the adverse party to have it vacated or set aside, depends upon the case presented by the original and supplemental pleadings. § 545. [Am'd 1877.] Irrelevant, redundant, or scandalous matter contained in a pleading, may be stricken out, upon the motion of a person aggrieved thereby. Where scandalous matter is thus striken out, the attorney whose name is subscribed to the pleading may be directed to pay the costs of the motion, and his failure to pay them may be punished as a contempt of the court. § 546. [Amid 18.) Where one or more denials or allega- $ Huz, 70. tions, contained in a pleading. are so miedone or uncertain that the precise meating or appuratore thereof is not appar ent, the court may require the preading to be made dedite and certain, by ainenfment. $547. [Repealed 1871) CHAPTER VIL GENERAL PROVISIONAL REMEDIES IN AN ACTION. TITLE IIL-ATTACHMENT OF PROPERTY. TITLE IV.—OTHER PROVISIONAL REMEDIES; GENERAL AND MISCELLANEOUS PROVISIONS. TITLE L Arrest, pending the action, and proceedings thereupon. ARTICLE 1. Cases where an order of arrest may be granted, and persons liable to arrest. 2. Granting, executing, and racating or modifying the order 3. Discharging the defendant upon bail or deposit: justifica- 4. Charging and discharging bail. ARTICLE FIRST. CASES WHERE AN ORDER OF ARREST MAY BE GRANTED, AND 2548. No person to be arrested in civil proceedings,with- 549. When the right to arrest 550. When the right to arrest depends partly upon extrinsic facts. 551. Order, when and where granted. 552. Foreign judgment not to 554. Idiot, lunatic, or infant un- 555. Person sued in a represen- arrested. § 548. [Am'd 1877.] A person shall not be arrested in a civil action or special proceeding, except as prescribed by statute. The writ of ne exeat is hereby abolished. 28 Hun, 338. 67 How. Pr. 275. § 549. [Am'd 1877, 1879, 1886.] A defendant may be ar- 9 Daly, 383. rested in an action, as prescribed in this title, where the action is brought for either of the following causes : 12 Daly, 516; 8 N. Y. State Rep. 851; 21 Abb. N. C. 257; 22 93; 25 N. Y. State Rep. 629; 5 N. Y. Supp. 746; 6 Id. 405; 132 N. Y. 507. Id. 73; 23 IN. 122 N. Y. 551; 1. To recover a fine or penalty. 2. To recover damages for a personal injury; an injury to 14 Hun, 518. property, including the wrongful taking, detention or conver- 66 How. Pr. sion of personal property; breach of a promise to marry; 474 misconduct or neglect in office, or in a professional employ- 14 Daly, 448. ment; fraud or deceit; or to recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof; or to recover for money received or to recover prop erty or damages for the conversion or misapplication of property where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by a public officer or by an attorney, solicitor or counsellor, or by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker, or other person in a fiduciary capacity. Where such allegation is made, the plaintiff cannot recover unless he proves the same on the trial of the action; and a judgment for the defendant is not a bar to the new action to recover the money or chattel. 3. To recover moneys, funds or property held or owned by 30 Hun, 553. 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 to recover damages for so obtaining, receiving, paying, converting or disposing of the 21 Hun, 459. 49 N. Y. Super. Ct. (J. & S.) 273. 12 Daly, 516. 1 How. Pr. N. S. 88. 24 N.Y.State Rep. 632; Id. 697. 6 N. Y. Supp. 197. 93 N. Y. 363; 94 Id. 473. 12 Daly, 516. 21 Abb. N. same. 4. In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or that he has since the making of the contract, or in contemplation of making the same, removed or disposed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with like intent; but where such allegation is made, the plaintiff cannot recover unless he proves the fraud on the trial of the action; and a judgment for the defendant is not a bar to a new action to re cover upon the contract only. § 550. [Am'd 1877, 1879, 1886.] A defendant may also be arrested in an action wherein the judgment demanded requires the performance of an act the neglect or refusal to perform C. 257; Id. which would be punishable by the court as a contempt where the defendant is not a resident of the State, or being a resident, is about to depart therefrom, by reason of which nonresidence or departure there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual. 321. 22 Hun, 565. § 551. [Am'd 1877, 1886.] In a case specified in the last section the order of arrest can be granted only by the court, is always in its discretion, and may be granted or served either before or after final judgment, unless an appeal from the judgment is pending upon which security has been given sufficient to stay the execution thereof. In either of the cases specified in section five hundred and forty-nine the order cannot be served after final judgment; but it may be granted where a proper case therefor is presented at any time before final judgment. § 552. The recovery of judgment in a court, not of the State, for the same cause of action; or, where the action is founded upon fraud or deceit, for the price or value of the property obtained thereby; does not affect the right of the plaintiff to arrest the defendant, as prescribed in this title. § 553. [Am'd 1877.] A woman cannot be arrested, as prescribed in this title, except in a case where the order can be granted only by the court; or where it appears, that the ac tion is to recover damages for a wilful injury to person, character or property. § 554. [4m'd 1877.] A lunatic, an idiot, or an infant under the age of fourteen years, if arrested, may be discharged from arrest, as a privileged person, in the discretion of the court. The application for his discharge may be made, in his behalf, by a relative, or by any other person whom the court or judge permits to represent him, for the purpose. $555. A person prosecuted in a representative capacity, as heir, executor, administrator, legatee, devisee, next of kin, assignee, or trustee, cannot be arrested, as prescribed in this title, except for his personal act. ARTICLE SECOND. GRANTING, EXECUTING, AND VACATING OR MODIFYING THE § 556. [Am'd 1877.] An order for the arrest of the de- 15 Hun, 446. fendant, except as otherwise prescribed in section five hundred and fifty-one of this act, must be obtained from a judge of the court in which the action is brought, or from any county judge. § 557. [Am'd 1877, 1879.] The order may be granted, in a case specified in section five hundred and forty-nine of this act, where it appears by the affidavit of the plaintiff or any other person, that a sufficient cause of action exists against the defendant, as prescribed in that section. It may be granted, in a case specified in section five hundred and fifty of this act, upon the like proof that a sufficient cause of action exists against the defendant, as prescribed in that section, and of the other matters, extrinsic to the cause of action, specified in that section. The affidavit may also contain any statement tending to determine the amount of bail to be required. 8 558. [Am'd 1877, 1879, 1886.] Subject to the provisions of the last preceding section the order may be granted at any time after the commencement of the action. It may also be granted to accompany the summons, but at any time after the filing or service of the complaint the order of arrest must be vacated on motion if the complaint fails to set forth a sufficient cause of action as required by section five hundred and forty-nine of this act, but where the order is applied for after the filing or service of the complaint, the court before granting the same may without notice direct the service of an 14 Hun, 29. 74 N. Y. 491. 16 Week. Dig. 502. 21 Abb. N. C. 257; 22 Id. 455. 125 N.Y. 364, amended complaint so as to conform to the allegations required in subdivisions two and four of section five hundred and forty-nine of this act. § 559. [Am'd 1879.] Except where the action is brought for a cause specified in subdivision third of section five hun dred and forty-nine of this act, or in a case where it is specially prescribed by law that security may be dispensed with, or the security to be given is specially regulated by law, the judge, before he grants the order, must require a written undertaking, on the part of the plaintiff, with two sufficient sureties, to the effect that, if the defendant recovers judg ment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which 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 at least equal to one-tenth of the amount of bail required by the order, and not less than two hundred and fifty dollars. § 560. Where the order can be granted only by the court, an undertaking on the part of the plaintiff may be dispensed with. If it is required, its form, and the security to be given thereupon, must be such as the court prescribes. § 561. [Am'd 1877.] The order must be subscribed by the plaintiff's attorney, and, except where it is granted by the court, by the judge. It may be directed, either to the sheriff of a particular county, or, generally, to the sheriff of any county. It must require the sheriff forthwith to arrest the defendant, if he is found within his county; to hold him to bail in a specified sum; and to return the order, with his proceedings thereunder, as prescribed by law. The plaintiff's attorney may, at his option, by an endorsement upon the order, or, where it was granted by the court, upon the copy thereof, delivered to the sheriff, fix a time within which the defendant must be arrested. In that case he cannot be arrested afterwards under the same order. § 562. [Am'd 1877, 1879.] The order of arrest, or, where it is granted by the court, a certified copy thereof, subscribed by the plaintiff's attorney; and in either case, the papers upon which the order was granted, with the undertaking, if any, must be delivered to the sheriff, who, upon arresting the defendant, must deliver to him a copy thereof. The papers upon which the order was granted, with the undertaking i any, must be filed with the order of arrest, or a certified copy thereof, at the time prescribed for filing the same in section five hundred and ninety of this act. § 563. The sheriff must execute the order by arresting the defendant, if he is found within his county, and keeping him in custody, until discharged by law. § 564. [Am'd 1877.] This title does not abridge or affect a privilege from arrest given by law, or a right of action for a breach thereof. A privileged person is entitled to be discharged from arrest, where other provision is not made therefor by law, by the court, or a judge thereof; or by the county judge of the county, or a judge of a superior city court of the city, where the arrest was made. The order must be made, upon proof, by affidavit, of the facts entitling the applicant to the discharge; and the arrest and discharge are not a bar to a new arrest, after the privilege has ceased. The court or |