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| 416. Action to be commenced 2 426. How personal service of by summons; time when
summons made upon a court acquires jurisdic
natiiral person, tion.
427. 428. Id.; in certain cases of 417. Requisites of summons.
infancy, or lunacy, etc., 418. Form of summons.
not judicially declared. 419. Service of copy complaint 429. Id.; when delivery of copy or notice with summons;
to lunatic dispensed with. consequence of failure. 430. Designation, by a resident, 420. Cases where such service
of a person upon whom must be made.
to serve a summons (ilir21. Appearance of defendant.
ing his absence; effect 422. When defendant must an
and revocation thereof. swer at time of appear- 431. How personal service of ing.
summons made upon a 423. Notice of no personal
domestic corporation. claim ; effect of service 432. Id. ; upon a foreign corthereof.
poration. 424. Effect of voluntary appear- 433. Service of process, etc., to ance.
commence a special pro425. Summons ; when and by
mons, etc.; how made. $ 416. A civil action is commenced by the service of a 130 N 1 071 summons. But from the time of the granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nevertheless, jurisdiction thus acquired is conditional, and liable to be divested, in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act, to be done after the granting of the provisional remedy.
$ 417. (Am'd 1877, 1879.] The summons must contain the 18 Abb. N title of the action, specifying the court in which the action is C. 199. brought, the names of the parties to the action, and, if it is brought in the supreme court, the name of the county in which the plaintiff desires the trial; and it must be subscribed by the plaintiff's attorney, who must add to his signature hus office address, specifying a place within the State where there is a post-office. "If in a city, he must add the street and street number, if any, or other suitable designation of the particular locality.
418. (Am'd 1877.] The summons, exclusive of the title 130 N. Y 671 of the action and the subscription, must be substantially in the following forin, the blanks being properly filled :
"To the above named defendant: You are hereby summoned to answer the compiaint in this action, and to serve a copy of your answer on the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint.
$ 419. (Amd 1879.) A copy of the complaint may be served with the summons. If a copy of the complaint is not served with the summons, the plaintiff cannot take judgment by default without application to the court, unless either the defendant appears, or by* a notice is served with the summons, stating the sum of money for which judgment will be taken, and the case is one embraced in the next section. $ 420. (Amd 1877.) Judgment may be taken without 21 Abb. N.C. So id original.
14 App. Dir.
79: 66 Id. 97.
application to the court, where the complaint sets forth one or more causes of action, each consisting of the breach of an express contract to pay, absolutely or upon a contingency, a sum or sums of money, fixed by the terms of the contract, or capable of being ascertained therefrom, by computation only; or an express or implied contract to pay money received or disbursed, or the value of property delivered, or of services rendered by, to, or for the use of, the defendant or a third person ; and thereupon demands judgment for a sum of money only. This section includes a case, where the breach of the contract, set forth in the complaint, is only partial; or where the complaint shows that the amount of the plaintiff's demand has been reduced by payment, counterclaim, or other
credit. 11 Civ. Pro. § 421. The defendant's appearance must be made by
serving upon the plaintiff's attorney, within twenty days after 63 How. Pr. 70; 66 Id. 97. service of the summons, exclusive of the day of service, a 15 'App. Div: notice of appearance, or a copy of a demurrer or of an an
A notice or pleading, so served, must be subscribed by the defendant's attorney, who must add to his signature his office address, with the particulars prescribed in section four hundred and seventeen of this act, concerning the office address of the plaintiff's attorney.
$.422. (Amd 1877.) A defendant, upon whom the plain83 How. Pr. tiff has served, with the summons, a copy of the complaint,
must serve a copy of his demurrer or answer upon the plaintiff's attorney, before the expiration of the time, within which the summons requires him to answer. If a copy of the complaint is not so served, a notice of appearance entitles him only to notice of the subsequent proceedings, unless within the same time he demands the service of a copy of the complaint as prescribed in section four hundred and seventy-nine of this act.
§ 423. [Amd 1877.) Where a personal claim is not made against a defendant, a notice, subscribed by the plaintiff's attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affect specific real or personal property, and that a personal claim is not made against him, may be served with the summons. If the defendant so served, unreasonably defends the action, costs
may be awarded against him. 16 Week. 8 424. A voluntary general appearance of the defendant
Dig. 25. is equivalent to personal service of the summons upon him. 108 N.Y. 355.
$ 425. The summons may be served by any person, other than a party to the action, except where it is otherwise specially prescribed by law. The plaintiff's attorney may, by an indorsement on the summons, fix a time within which the service thereof must be made in that case, the ser. vice cannot be made afterwards. Where a summons is de livered for service to the sheriff of the county, wherein the defendant is found, the sheriff must serve it, and return it, with proof of service, to the plaintiff's attorney, with reasonable diligence.
$ 426. [Amd 1879.) Personal service of the summons 46 Hun, 313. upon a defendant, being a natural person, must be made by
delivering a copy thereof, within the State, as follows:
1. If the defendant is an infant, under the age of fourteen years, to the infant in person, and also to his father, mother,
or guardian, or, if there is none within the State, to the per son having the care and control of him, or with whom he resides, or in whose service he is employed.
2. If the defendant is a person judicially declared to be incompetent to manage his affairs in consequence of lunacy, idioer, or habitual drunkenness, and for whom a committee has been appointed, to the committee, and also to the defendant in person.
3. If the action is against a sheriff, for a cause specified in section one hundred and fifty-eight of this act, by delivering it to the defendant in person, or to his under-sheriff in person, or at the office of the sheriff during the hours when it is required by law to be kept open, to a deputy-sheriff or a clerk' in the employment of the sheriff, or other person in charge of the office. 4. In any other case, to the defendant in person.
$ 427. If the defendant is an infant of the age of fourteen 34 Hun, 183; years, or upwards, or if the court has, in its opinion, reason- 47 Id. 606. able ground to believe, that the defendant, by reason of 2 N. Y. An. habitual drunkenness, or for any other cause, is mentally Cases, 117. incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, the court may, in its discretion, with or without an application therefor, and in the defendant's interest, make an order, requiring a copy of the summons to be also delivered, in behalf of the defendant, to a person designated in the order, and that service of the summons shall not be deemed complete, until it is so delivered.
$ 428. [Amd 1877.) In a case specified in subdivision first or second of section four hundred and twenty-six of this 3 Month in act, where the court has, in its opinion, reasonable ground to Bul. 99. believe, that the interest of the person,other than the defendant, 27 App. Div. to whom a copy of the suminons has been delivered, is adverse 279. to that of the defendant, or that, for any reason, he is not a fit person to protect the rights of the defendant, it may likewise make an order, as prescribed in the last section. In a case specified in subdivision second, the court may, as a part of the same order, or by a separate order, macie, in like manner and upon like ground, at any stage of the action, appoint a special guardian ad litem to conduct the defence for the incompetant defendant, to the exclusion of the committee, and with the same powers, and subject to the same liabilities, as a committee of the property.
$ 429. Where the defendant has been judicially declared 15 Civ. Pro to be incompetent to manage his affairs, in consequence of 39. lunacy, and it appears satisfactorily to the court, by affidavit, that the delivery of a copy of the summons to him, in person, will tend to aggravate bis disorder, or to lessen the probability of his recovery, the court may make an order, dispensing with such delivery. In that case, a delivery of a copy of the summons, to a connittee duly appointed for him, is sufficient persnal service upon the defendant.
$ 130. Desiguation, loy a resident, of a person upon 105 N. Y. 340 whom to serve a summon , dwing his absence; ellect and revo.ation thereof, [Jul 1899, amendment to take det September 1, 1390.) A resident of the state, of full age, Willy execute, under his hand, and acknowledge, in the uauner required by lw to entitle a ded to be recorded, a writen designition of another resident of the state, as a per-on upon whom to serve a simmons, or any process or other paper for the commencement of a civil special procee iing, in any court or before any officer, during the
absence from the state of New York of the person makibg the designation ; and may file the same, with the writien consent of the person so designated, executed and acknowledged in the same manner, in the office of the clerk of the county, where the person making the designation resides. The designation must specify the occupation, or other proper addition, and the residence of the person making it, and also of the person designated ; and it remains in force during the period specitied therein, if any; or, if no peri d is specified for that purpose, for three years after the filing thereof. But it is revoked earlier, by the death or legal in. competency of either of the parties thereto; or, by the filing of a revocation thereof, or of the consent, executed and acknowledged in like manner. The cler« must file and record such a designation, consent, or revocation ; and must note, upon the record of the original desiguation, the filing and recording of a revocation. While the designation remains in force, as prescribed in this section, a summons, or any process or other paper for the commencement of a civil special proceedi g, agaiust the person making it, in any court or before any fficer, may be sei ved 1pon the person so designated, in like manner and with 1 ke effect, as if it were served personally upon the person making the desig is tion, notwithstanding the return of the latter to the stute of
New York. 2 1080, Con- $ 431. Personal service of the summons upon a defend
ant, being a domestic corporation, must be made by deliver12 Misc. 478. ing a copy thereof, within the State, as follows:
1. If the action is against the mayor, alderman, [aldermen] and commonalty of the city of New York, to the mayor, comptroller, or counsel to the corporation.
2. If the action is against any other city, to the mayor, treasurer, counsel, attorney, or clerk; or, if the eity lacks either of those officers, to the officer performing correspond
ing functions, under another name. 121 N.Y. 224.
3. In any other case, to the president or other head of the 16 Misc. 4. corporation the secretary or clerk to the corporation, the
cashier, the treasurer, or a director or managing agent. 87 N.Y. 137.
$ 432. [Am'd 1877.] Personal service of the summons, aft's, 24
upon a defendant, being a foreign corporation, must be made Hun, 238. by delivering a copy thereof, within the State, as follows:
1. To the president, treasurer, or secretary ; or, if the corRep. 410.
poration lacks either of those officers, to the officer perform115 N.Y.437. ing corresponding functions, under another name. 3 App Div.572,
2. To a person designated for the purpose by a writing, un146 N.Y. 281: der the seal of the corporation, and the signature of its presi.
35 Hun, 869. 26 N.Y. State
dent, vice-president, or other acting head, accompanied with the written consent of the person designated, and filed in the office of the Secretary of State. The designation must specify a place, within the State, as the office or residence of the person designated ; and, if it is within the city, the street, and street number, if any, or other suitable designation of the particular locality. It remains in force, until the filing in the Same office of a written revocation thereof, or of the consent, executed in like manner ; but the person designated may, from time to time, change the place specified as his office or residence, to some other place within the State, by a writing, executed by him, and filed in like manner. The Secretary of State may require the execution of any instrument, specified in this section, w be authenticated as he deems proper, and he may refuse to file it without such an authentication. An exemplifiud copy of a designation so filed, accompalied with
136 N.Y. 343.
13 Misc. X5
a certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it.
3. It such a designation is not in force, or if neither the per- 104 N.Y.477. son designated, nor an officer specified in subdivision first of 85 Hun, 403. this section, can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein; to the cashier, a director, or a managing agent 1 App. Div. of the corporation, within the State.
$433. The provisions of this article, relating to the mode of service of a summons, apply likewise to the service of any process or other paper, whereby a special proceeding is coinmenced in a court, or before an officer, except a proceeding to punish for contempt, and except where special provision for the service thereof is otherwise made by law.
$ 434. Proof of service, as prescribed in this article, must 16N.Y.265 be made by affidavit, except as follows:
1. If the service was made by the sheriff, it may be proved by his certificate thereof.
2. If the defendant served is an adult, who has not been judicially declared to be incompetent to manage his affairs, the service may be proved by a written admission, signed by him, and either acknowledged by him, and certified in like manner as a deed to be recorded in the county, or accompanied with the affidavit of a person, other than the plaintiff, showing that the signature is genuine,
A certificate, admission, or affidavit of service of a summons, must state the time and place of service. A written admission of the service of a summons, or of a paper accompanying the same, imports, unless otherwise expressly stated therein, or otherwise plainly to be inferred from its contents, that a copy of the paper was delivered to the person signing the admission.
ARTICLE SECOND. SUBSTITUTES FOR PERSONAL SERVICE IN SPECIAL CASES. ( 435. Order for service of sum- @ 440. By whom order may be mons when defendant not
made; contents of order. found, etc.
441. When publication must be 436. How service must be made.
commenced; when ser437. Papers to be filed; proof
vice deemed complete. of service.
442. Papers to be filed; notice 438. Cases in which service of
without the State. 139. Papers upon which order 444. Proof of service.
for publication may be 445. Defendant when allowed
to defend. $ 435. (Amd 1877 & 1880.) Where a summons is issued in 26 H11n, 463, any court of record, an order for the service thereof upon a 13 Civ. 'Pro. defendant residing within the State may be made by the court 278. or a judge thereof, or the county judge of the county where 46 Hun, 515. the action is triable, upon satisfactory proof, by the affidavit 122 N. Y. 263, of a person, not a party to the action, or by the return of the sheriff of the county where the defendant resides, that proper and diligent effort has been made to serve the summons upen the defendant, and that the place of his sojourn cannot be ascertained, or, if he is within the State, that he avoids service, so that personal service cannot be made.
$ 436. [Am'd 1877, 1896.) The order must direct, that 22 Miso. 542. the service of the summons be made, by leaving a copy