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366.

216,

98 V.Y. 665.

thereof, and of the order, at the residence of the defendant. with a person of proper age, if upon reasonable application, admittance can be obtained, and such person found wito will receive it; or if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant's residence, and by depositing another copy

thereof, properly inclosed in a post-paid wrapper, addressel í

to him, at his place of residence, in the post-office at the place where he resides; or upon proof being made by affidavits that no such residence can be found, service of the summons

may be made in such manner as the court may direct. 4 Civ. Pro. S 437. The order, and the papers upon which it was

granted, must be filed, and the service must be made, within 122 N.Y. 263.

ten days after the order is granted ; otherwise the order becomes inoperative. On filing an affidavit, showing service according to the order, the summons is deemed served, and the same proceedings may be taken thereupon, as if it had been served by publication, pursuant to an order for that pur

pose, made as prescribed in the next section. 6 Civ. Pro. $ 138. Cases in which service of summons by publica.

tion may be ordered. [Am'd 1879, 1884, 1899, amendment lo 36 Hun, 347.

take effect September 1, 1899.] --An order directing the service

of a summons upon a defendant without the state, or by 15 N. Y. State publication, may be made in either of the following cases : Rep. 903.

19 Abb. N. C. 406; 127 N. Y. 493; 3 App. Div. 26. 143 X Y. 172.

1. Where the defendant to be served is a foreign corporation; or, being a natural person, is not a resident of the state ; or where, after diligent inquiry, the defendant remains unknown to the plaintiff, or the plaintiff is unable to ascertain whether the defendant is or is not a resident of the state.

2. Where the defendant, being a resident of the state, has departed therefrom, with intent to defraud his creditor, or to avoid the service of a summons ; or keeps himself coucealed therein, with like intent.

3. Where the defendant, being an adult and a resident of the state, has been continuously without the state of New York more than six months next before the granting of the order, and has not made a designation of a person, upon whom to serve, a summons in his behalf, as prescribed in section four hundred and thirty of this act; or a designation so made no longer remains in force; or service upon the person so designated cannot be made within the state, after

diligent effort. 36 Hun, 347. 4. Where the complaint demands judgment annulling a 9. App. Div. marriage, or for a divorce, or a separation.

5. Where the complaint demands judgment, that the defendant be excluded from a vested or contingent interest in or lien upon, specific real or personal property within the state; or that such an interest or lien in favor of either party be enforced, regulated, defined, or limited ; or other. wise affecting the title to such property.

6. Where the defendant is a resident of the state or a domestic corporation; and an attempt was made to commence the action against the defendant, as required in chapter fourth of this act, before the expiration of the limitation applicable thereto as fixed in that chapter ; and the limitation would have expired, within sixty days next preceding the application, if time had not been extended by the attempt to commence the action.

401

Dig. 209

he

Id. 317.

161.

7. Where the action is against the stockholders of a cor. pirition, or joint-stick company, and is anthor ze by law of the state, and the defendant is a s'ockholder thereof. When a copy of the summos is requirid by subdivision first or sol division second of section four hundred and twenty-six of this act, or by section four hundred and twenty-nine of this act, to be delivered to a person other ibo the defendant, an order, directing the service of a copy of the summons upon such person without the state, or by publication, may be made as prescribed in this section, as if such person was the defendant in the action, and upon a Ferified complaint and the same proof with respect to such person as is required in the next succeeding section with respect to a defendant. And sections four hundred and foriy to four hundred and forty-four both inclusive, apply to the proceedings in like manner as if such person was a defendant.

$ 439. (Amd 1877, 1879.) The order must be founded 13 Week. upon a verified complaint, showing a sufficient cause of action against the defendant to be served, and proof by affidavit of 27 Hun, 40. the additional facts required by the last section; and also, 3. Civ: Pro. where the application is made upon the ground that the de

69; 4 id. 275.

36 Hun, 221, fendant is a foreign corporation, or not a resident of State, or in a case specified in subdivision fourth, fifth, or 112 N. Y.382. seventh of the last section, that the plaintiff has been or will 133 N. Y. 55. be unable, with due diligence, to make personal service of the 143N. Y. 172. summons, 9 App. Div. 461.

$ 440. (Am'd 1879, 1889.) The order may be made by a 4 Month. L. judge of the court or the county judge of the county where Bul. 36. the action is triable. It must direct that service of the sum- 9 Civ. Pro, mons, upon the defendant named or described in the order,

19 Abb. N. be made by publication thereof in two newspapers, designa- C 406. ted in the order as most likely to give notice to the defendant 2 N.Y.Supp. for a specified time, which the judge deems reasonable, pot 250. less than once a week for six successive weeks; or, at the op- 30 Hun, 204. tion of the plaintiff, by service of the summons, and of a copy 131 N. Y. 184. of the complaint and order, without the State, upon the de- 14_App. Div, Sendant personally, and if he is an infant under the age of fourteen years, also upon the person with whom he is sojourning; or, if the defendant is a corporation, upon an officer thereof, specified in section 431 or 432 of this act. It must also contain, either a direction that, on or before the day of the first publication, the plaintiff deposit in a specitied post-office, one or more sets of copies of the summons, complaint and order, each contained in a securely closed post-paid wrapper, directed to the defendant, at a place specified in the order; or a statement that the judge being satisfied by the affidavits upon which the order was granted, that the plaintiff cannot, with reasonable diligence, ascertain a place or places where the defendant would probably receive matter transmitted through the post-office, dispenses with the deposit of any papers therein.

$441. [Am'd 1877.] The first publication, in each news- 133 N. Y. 55. paper designated in the order, or the service upon the defendant without the State, must be made within three months after the order is granted. For the purpose of reckoning the time within which the defendant mit appear or answer, service by publication is complete up the day of the last publication, pursuant to the order; and service made without the State is complete upon the expiration thereafter of a time equal to that prescribed for publication.

$ 742. [-Im'd 1877.] Where service is made by publica- 4 Month. L. cation, the summons, complaint, an order, and the papers. Bul. 34. upon which the order was made, must be filed with the clerk, 38 lun. 15.2.

:

23 Misc. 299. on or before the day of the first publication; and a notice

subscribed by the plaintiff's attorney, and directed only to the
defendant or defendants to be thus served, substantial.y in
in the following form, the blanks being properly filled up:
must be subjoined to and published with the summons :
" To

The foregoing summons is served upon you, by publication, pursuant to an order of

” (tial ing the judge and his official title), “dated the

day of 18 and filed with the complaint in the office of the clerk of

at $ 443. (Amd 1877.] Where service is made without the State, the papers specified in the last section must be previously filed; and a notice must be served with the summons, in all respects like the notice required by the last section, except that the words, “ without the State of New York," must be substituted for the words, “by publication."

$ 444. Proof of the publication of the summons and notice must be made by the affidavit of the printer or publisher, or his foreman or principal clerk. Proof of deposit in the post-office, or of delivery, of a paper required to be deposited or delivered by the provisions of this article, must be made by

the affidavit of the person, who deposited or delivered it.. 30 N.Y.Stato

§ 445. [Am'd 1877.] Where the summons is served, purBep. 694. suant to an order made as prescribed in this article, and the 132 N.Y. 363. defendant so served does not appear, he, or his representa

tive, on application and sufficient cause shown, at any time before final judgment, must be allowed to defend the action ; and, except in an action for divorce, or wherein the contrary is expressly prescribed by law, the defendant, or his représentative, must, in like manner, upon good cause shown, and upon just terms, be allowed to defend, after final judgment, at any time within one year after personal service of written notice therof; or, if such a notice has not been served, within seven years after the filing of the judgment-roll. If the de fence is successful, and the judgement, or any part thereof, has been collected or otherwise enforced, such restitution may thereupon be compelled, as the court directs; but the title to property, sold, to a purchaser in good faith, pursuant to a direction contained in the judgment, or by virtue of an execu tion issued upon the same, shall not be affected thereby,

TITLE II.

Parties to an action.
ARTICLE 1. Parties generally.

2. Parties severally liable.
3. Parties prosecuting and defending as poor persons.
4. Infant plaintiffs and defendants.

ARTICLE FIRST.

PARTIES GENERALLY. & 4-16. Who may be joined as

ested, plaintiff's

450. When married woman is a 447. Id.; as defendants.

party.
448. Parties united in interest, 451. When defendant or
when to be joined; when

his name is unknown.

452. When court to decide con. defend for the whole.

troversy, or to order other 449, Trustee of express trist,

parties to be brought in. etc., may sue without per- 453. Supplemental summons.

beneficially inter

his

one or more may sue or

son

368.

C. 160

27 Hin, 596. $ 446. All persons having an interest in the subject of the

87 N. Y. 599. action, and in obtaining the judgment demanded, may be 10 Abb.N.C. joined as plaintiffs, except as otherwise expressly prescribed 100. in this act.

48 Hun, 596. U7NY.441; 5 N.Y. Supp. 189.

447. Any person may be made a defendant who has, 87 N. Y. 599. or claims an interest in the controversy, adverse to the plain- 28 Hun, !9.)

5 Civ. Pro. till, or who is a necessary party defendant, for the complete determination or settlement of a question involved therein; 18 Abb. N. except as otherwise expressly prescribed in this act. 14 N. Y. State Rep. 360 ; 47 Hun, 239; 90 Hun, 584.

123 N.Y. 532 $ 448. Of the parties to the action, those who are united 36 Hun, 400. in interest must be joined as plaintiffs or defendants, except as 50 N. Y. Supotherwise expressly prescribed in this act. But if the consent er. Ct. (J. & of any one, who ought to be joined as a plaintiff, cannot be S.) 301. obtained, he may be made a defendant, the reason therefor 2 How. Pr.

N. S. 396. being stated in the complaint. And where the question is one

19 Abb. N. of a common or general interest of many persons; or where c. 88. the persons, who might be made parties, are very numerous, 5 N. Y. Supp. and it may be impracticable to bring them all before the 399. court, one or more may sue or defend for the benefit of all.

$ 449. (Amd 1877.] Every action must be prosecuted in 1 How. Pr the name of the real party in interest, except that an execu- N. S. 509. tor or administrator, a trustee of an express trust, or a per- 22 Week. son expressly authorized by statute, may sue, without joining

Dig. 35. with him the person for whose benefit the action is prosecuted.

36 Hun, 362.

100 N. 9.35; A person, with whom or in whose name, a contract is made 105 Id. 65%! for the benefit of another, is a trustee of an express trust, 24 N.Y.State within the meaning of this section.

10 Misc. 410. Rep. 77; Id. 843; 53 Hun, 91; 129 N. Y. 237; 136 N. Y. 655; 28 App. Div. 862.

$ 450. (Amd 1877, 1879, 1890.) In an action or special pro- 1 Civ. Pro ceeding a married woman appears, prosecutes or defends 360; 6 Id alone or joined with other parties as if she was single. It is 51.

2 City (t. 57. not necessary or proper to join her husband with her as a par

14 Abh. N ty in any action or special proceeding affecting her separate c. 94

Id. property. The husband is not a necessary or proper party to an 333. action or special proceeding to recover damages to the person, 116 V. 7.584 estate or character of his wife, and all sums that may be re- 23 Abb. N. covered in such action or special proceedings shall be the sepa

135 N. 1. 201. rate property of the wife. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of another on account of the wrongful acts of his wife committed without his instigation. $ 451. (Amd 1879.) Where the plaintiff is ignorant of

52 How. Pr the name or part of the name of a defendant, he may desig

499. nate that defendant, in the summons, and in any other pro- 93 N.Y.89. cess or proceeding in the action, by a fictitious name, or by as 5. Civ. Prve much of his name as is known, adding a description, identify- 355. ing the person intended. Where the plaintiff demands judig- 98 N. Y. 665 ment against an unknown person, he may designate that person as unknown, adding a description, tending to identity him. In either case, the person intended is thereupon regarded as a defendant in the action, and as sufficiently described therein, for all purposes, including service of the summons, as prescribed in article second of the last title. When the name, or the remainder of the name, or the person, becomes known,

C. 332.

an order must be made by the court, upon such notice and such terms as it prescribes, that the proceedings alreadly taken be deemed amended, by the insertion of the true name, in place of the fictitious name or part of a name, or the designation as an unknown person ; and that all subsequent pro

ceedings be taken under the true name. 87 N. Y. 322: $452. The court may determine the controversy, as beId. 599 ; 98 tween the parties before it, where it can do so without prejuId. 239. dice to the rights of others, or by saving their rights; but where 18 Abb. N. a complete deterinination of the controversy cannot be had C. 160.

without the presence of other parties, the court must direct 47 Hun, 239; 50 Id. 236.

them to be brought in. And where a person, not a party to 18 N. Y. State the action, has an interest in the subject thereof, or in real Rep. 799. property, the title to which may in any manner be affected 5 . Y. Sup by the judgment, and makes application to the court to be eric (J. & made a party, it must direct him to be brought in by the 25N. Y. State proper amendment.

Rep. 978: 27 Id. 302; 34 I1, 351; 123 N. Y. 532: 127 Id. 452: 144 N. Y. 92: 82 Ilun, 219 85 Hun. 219; 85 Hun, 196; 89 llun, 382: 10 Misc. 325; 12 Mise, 77: 4 App. Div. 62; 810. 685; 14 Misc. 299; 18 Id. 173; 15 App. Div. 436; 20 Id. 480; 29 1d.

170, 152. 134 N.Y. 568. $ 453. [Am'd 1877.) Where the court directs a new de14 Misc. 299. fendant to be brought in, and the order is not made upon his

own application, a supplemental summons must be issued, directed to him, and in the same form as an original summons ; except that, in the body thereof, it must require the defendant to answer the original or the amended complaint, and the supplemental complaint, or either of them, as the case requires. And each provision of this chapter, relating to personal service, or a substitute for personal service of an original summons, applies to such a supplemental summons.

ARTICLE SECOND.

PARTIES SEVERALLY LIABLE. 2 154. Persons liable for the same 2 456. Proceedings in action demand may be sued to.

against defendants severgether.

ally liable. 455. Defendant so sued may 457. Application of this article apply for any relief,

to defendants jointly li

able. $ 454. (Am'd 1877.1 Two or more persons, severally lia. 6clv. Pro. able upon the same written instrument, including the parties 138 N.Y. 192. to a bill of exchange or a promissory note, whether the action 9 App. Div. is brought upon the instrument, or by a party thereto to re247.

cover against other parties liable over to him, may, all or any 16 Misc. 95. of them, be included as defendants in the same action, at the 23 App. Div. the option of the plaintiff.

$ 455. The joinder of a person, as defendant in an action, with another person, as prescribed in the last section, does not affect his right to any order or other relief, to which he would have been entitled, if he had been separately sued in the

action. 24 Hun, 265;

$ 456. Where a summons, issued against two or more de25 Id. 266.

fendants, alleged to be severally liable, is served upon some, 29 Abb. N.C. but not upon all of them, the plaintiff may proceed against 403.

those upon whom it is served, as if they were the only defend23 Misc. 34, ants named therein. Where it is served upon all of them, the

plaintiff may take judgment against one or more of them, where he would be entitled to judgment, if the action was against him or them alone. Where judgment is so taken, the clerk must, upon the plaintiff's application, enter an order,

238.

360,

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