sheriff with an order of arrest, and copy complaint, but was discharged from the arrest, because at the time of arrest he was attending court as a witness, no return of the service of the order or complaint was made by the sheriff, and the defendant not having served notice of appearance or an answer, the plaintiff, twenty days after service of the summons, but within twenty days from the service of the complaint, entered judgment as for want of an answer, and it was held he had a right to do so (Van Pelt v. Boyer, 7 How. 325).

§ 131. (Am'd 1851.) Notice of no personal claim.

In the case of a defendant against whom no personal claim is made, the plaintiff may deliver to such defendant, with the summons, a notice subscribed by the plaintiff or his attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects specific, real or personal property, and that no personal claim is made against such defendant, in which case no copy of the complaint need be served on such defendant, unless, within the time for answering, he shall, in writing, demand the same. If a defendant on whom such notice is served unreasonably defend the action, he shall pay costs to the plaintiff.

a. The omission of the plaintiff to serve the notice prescribed by this section does not deprive the court of the power, in equity cases, to awards costs against a defendant upon whom a copy of the complaint has been served for unreasonably defending the action (O'Hara v. Brophy, 24 How. 379).

b. As to the service of the notice of the object of the action, the law provides no fee, and the sheriff stands as to that precisely as any other person. The certificate of service should be embodied in the return to the summons, but whether it be or not, no fee for it can be allowed (Benedict v. Warriner, 14 How. 570). If the service is by the sheriff, the compensation cannot be allowed as a "sheriff's fee." The superior court allows 37 cents for the service of such notice, when it is shown to be a necessary and reasonable disbursement (Gallagher v. Egan, 2 Sand. 745). No charge for certificate of service is allowed (id.)

§ 132. (Am'd 1857, 1858, 1862, 1866.) Notice of lis pendens. Action, when deemed pending. Canceling notice.

In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, or whenever a warrant of attachment, under chapter four of title seven, part second of this Code, shall be issued, or at any time afterward, the plaintiff, or a defendant when he sets up an affirmative cause of action in his answer and demands substantive relief, at the time of filing his answer, or at any time afterwards, if the same be intended to affect real estate, may file with the clerk of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and the description of the property in that county

affected thereby; and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the parties thereto, and the time and place of recording the same.

From the time of filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby; and every person whose conveyance or incumbrance is subsequently executed, or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice, to the same extent as if he were made a party to the action.

For the purposes of this section, an action shall be deemed to be pending from the time of filing such notice; provided, however, that such notice shall be of no avail unless it shall be followed by the first publication of the summons on an order therefor, or by the personal service thereof on a defendant within sixty days after such filing.

And the court in which the said action was commenced may, in its discretion, at any time after the action shall be settled, discontinued, or abated, as is provided in section number one hundred and twenty-one, on application of any person aggrieved, and on good cause shown, and on such notice as shall be directed or approved by the court, order the notice authorized by this section to be canceled of record by the clerk of any county in whose office the same may have been filed or recorded; and such cancellation shall be made by an indorsement to that effect on the margin of the record, which shall refer to the order, and for which the clerk shall be entitled to a fee of twenty-five cents.

a. The notice under this section applies only to parties to the action and purchasers from them subsequent to the notice being filed (The People v. Conolly, 8 Abb. 128; see Chapman v. West, 17 N. Y. 125). It is a statute substitute for actual notice (Hall v. Nelson, 14 How. 32); and is as effectual against any disposition of the property described in it as an injunction (Stevenson v. Fayerweather, 21 How. 449). A purchaser from the defendant is bound by the decree in the action (Harrington v. Slade, 22 Barb. 162; and see Zeiter v. Bowman, 6 id 133; Griswold v. Miller, 15 id. 520; Patterson v. Brown, 32 N. Y. 81). Perhaps, for a plaintiff to retain the benefit of the notice filed under this section, he must prosecute his action diligently (see Myrick v. Selden, 36 Barb. 15). The notice should include only the property actually to be affected by the judgment, and where an attachment issues the notice should include only the property attached (Fitzgerald v. Blake, 28 How. 110). The notice may be amended (Vanderheyden v. Gary, 38 How. 367).

b. Notices of lis pendens to be recorded and indexed (Laws 1864, ch. 53; and see in Kings County, Laws 1859, ch. 212; in Queens County, Laws 1867, ch.

a. Foreclosure.-The notice must be filed in every case of foreclosure (Brandon v. M'Cann, 1 Code Rep. 38), and "at or after the time of filing the complaint" (Rule 71). A decree made without proof of filing the notice would be irregular, but not void (Potter v. Rowland, 8 N. Y. 448). A notice stating every requisite except where the mortgage is recorded would be good (id.)

§ 133. Summons, by whom served.

The summons may be served by, the sheriff of the county where the defendant may be found, or by any other person not a party to the action. The service shall be made, and the summons returned with proof of the service to the person whose name is subscribed thereto, with all reasonable diligence. The person subscribing the summons may, at his option, by an indorsement on the summons, fix a time for the service thereof; and the service shall then be made accordingly.

b. Where a plaintiff made a personal service of the summons on the defendant, and the defendant not appearing or answering the plaintiff made an affidavit of the service, and entered judgment, it was held that it was too late for the defendant, after judgment, to move to set aside the proceedings; that the service of the summons by the plaintiff was a mere irregularity, of which, if the defendant desired to avail himself, he should have moved promptly, and before judgment, to set aside the service (Myers v. Overton, 2 Abb. 344, 4 E. D. Smith, 428: Hunter v. Lester, 18 How. 347; 10 Abb. 260). Semble, a sheriff who is plaintiff may serve his own summons (Bennett v. Fuller, 4 Johns. 486). See Rule 8 as to compelling a return.

§ 134. (Am'd 1849, 1851, 1859.) Service of summons.

The summons shall be served by delivering a copy thereof as follows:

1. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, a director, or managing agent thereof; but such service can be made in respect to a foreign corporation, only when it has property within this State, or the cause of action arose therein, or where such service shall be made within this State personally upon the president, treasurer, or secretary thereof.

2. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian; or if there be none within the State, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed.

3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs in consequence

of habitual drunkenness, and for whom a committee has been appointed, to such committee and to the defendant personally. 4. In all other cases to the defendant personally.

Note to Subdivision 1.

a. Service on corporations.-The service must be on some one of the officers named (Arken v. Quartz Rock &c. Comp. 6 Cal. R. 186). A managing agent is one whose agency extends to all the business of the corporation (Brewster v. Michigan Central R. R. Co. 5 How. 183). A baggage-master (Flynn v. Hudson River R. R. Co. 6 id. 308), or one who merely sells tickets, is not to be deemed a managing agent on whom service of process may be made (Doty v. Michigan Central R. R. Co. 8 Abb. 427). A person acting under a power of attorney for an insurance company, located elsewhere, and authorized to effect insurance, was held to be à managing agent (Bain v. Globe Ins. Co. 9 How. 448). Where it is uncertain whether or not the party served is or is not a managing agent of the defendant, the burden is on the defendant to show the relation to it of the party served, and that he is not a managing agent (Donadi v. N. Y. State Mut. Ins. Co. 2 E. D. Smith, 519). The provision in this section is a substitute for the service by publication (Bates v. New Orleans &c. Railroad Co. 4 Abb. 77; 13 How. 516). Where there are two parties who make adverse claims to be officers of such corporation, the proper person to be served is the officer de facto (Berrian v. Metho. Soc. in New York, 4 Abb. 424; see Laws 1869, ch. 157); where the proof of service is the written admission of an officer of the corporation, the signature to such admission must be verified by affidavit (Jones v. U. S. Slate Co. 16 How. 129).

b. As to service on railroad corporation, see Laws 1854, ch. 282; Laws 1869, p. 274; and on foreign corporations, Laws 1855, ch. 279; on corporation of New York, Laws 1867, p. 1606; ante p. 14; on express companies, Laws 1866, ch. 411.

c. This section does not extend the jurisdiction of the courts against foreign corporations (Cumberland Coal Co. v. Sherman, 8 Abb. 243).

d. Service on supervisors.-1 R. S. 384, § 3.

e. Service on a convict in the State Prison is valid (Davis v. Duffie 4 Abb. N. S. 478; 3 Trans. Ap. 54).

f. Cause of action-Where it arises.—A cause of action is the right a party has to institute and carry through a proceeding (Meyer v. Van Collem, 28 Barb. 231). Where a railroad company, chartered by the State of Vermont, by its president, drew a bill of exchange in the State of Vermont, payable in New York, and drawn upon J. W. B., the treasurer of the said company in Boston, and accepted and indorsed in Boston by J. W. B. as treasurer of said company, and by the said J. W. B. sold to the Bank of Commerce in Boston, the bill on maturity was presented for payment in New York, and was there protested for nonpayment,-held that the cause of action arose in this State (Bank of Commerce v. Wash. and Rutland R. R. Co. 10 How. 1; Conn. Mut. Ins. Co. v. Cleveland R. R. Co. 23 How. 180; 26 How. 226). Where a loan is made by one non-resident to another, out of this State, and secured by a draft drawn upon a person residing within this State, the cause of action cannot be said to have arisen within this State (Western Bank v. City Bank of Columbus, 7 How. 238). Where a contract is made at one place and is to be performed at another, the cause of action upon such contract arises at the latter place (Burckle v. Eckhart, 3 N. Y. 132; see Story, Conflict of Laws, § 317, 47 Barb. 29). Where does a cause of action arise discussed (Cumberland Coal Co. v. Sherman, 8 Abb. 249; Campbell v. Proprietors of Champlain R. R. 18 How. 412; Conn, Mut. Ins. Co. v. Cleveland R. R. Co, 41 Barb. 28; Artisans Bank v. Park Bk. id. 599; Jewell v. Wright, 30 N. Y.

Note to subd. 3.

a. Lunatics. The provision for service on a lunatic does not dispense with the rule of law forbidding an action against one judicially declared a lunatic, unless by leave of the court. The proper course for a party who has a claim against a lunatic or his estate, after office found, is to apply to the supreme court by petition for the payment of the debt, or for leave to bring a suit for the purpose of establishing the claim (Soverhill v. Dixon, 5 How. 109; Crippen v. Culver, 13 Barb. 424). If the court is satisfied that the debt is justly due, the committee will be ordered to pay it out of the estate; or, if the claim is doubtful, the court will either have it settled by a reference, or give the claimant permission to establish his claim by an action (Re Hopper, 5 Paige, 489; Williams v. Cameron, 26 Barb. 172). An action against the lunatic, commenced without the permission of the court, would be restrained (Re Heller, 3 Paige, 199; but see Robertson v. Lain, 19 Wend. 650). A judgment in an action commenced without such leave would be of no avail (Clark v. Dunham, 4 Denio, 262; Heller's case, 3 Paige, 201). It may be set aside on motion or by an action (Demilt v. Leonard, 11 Abb. 252; 19 How. 140). Such a judgment is not void (Sternberg v. Schoolcraft, 2 Barb. 153; and see Griswold v. Miller, 15 id. 650; and 2 Paige, 422).

b. Service on an insane person who has no committee must be by a personal service on such person (Heller v. Heller, 6 How. 194).

Note to subdivision 4.

c. Personal service.-When the summons in an action is not legally served, the court has no jurisdiction of the defendant, and all proceedings based on the pretended service are void (Bulkley v. Bulkley, 6 Abb. 307).

d. "Service means, serving the defendant with a copy of the process, and showing him the original if he desires it" (Goggs v. Huntingtower, 12 M. & W. 502; Williams v. Van Valkenburgh, 16 How. 152). And the copy summons must be delivered to and left with the defendant (Rule 18). A mere manual delivery of the summons is not good service, unless the summons be left with the defendant (Beekman v. Cutter, 2 Code Rep. 51; and see Niles v. Vanderzee, 14 How. 547, and note to section 138). Where the defendant refuses to accept the summons, service may be made on him by "laying it down at any appropriate place in his presence." Effecting a service by forcibly thrusting the paper upon the person of the defendant is improper, and where service was so effected the court will set it and all subsequent proceedings aside (Davison v. Baker, 24 How. 39). Where, however, a defendant refused to receive a process, it was held that laying it on his shoulder was good service (Bell v. Vincent, 7 D. & R. 233).

e Place of service.-The service of the summons must, except in the cases provided for in § 135, be within the territorial jurisdiction of the court (Litchfield v. Burwell, 5 How. 341; Fiske v. Anderson, 33 Barb. 75; Morrell v. Kimball, 4 Abb. 352). Acceptance of service out of the State would not confer jurisdiction (id.) unless followed by an appearance in the action. But in all actions in which the superior court of the city of New York has jurisdiction by subd. 1 of § 33 of the code, and in an action against several persons jointly liable on contract, when one of them resides in the city of New York, the summons may be served in any county of the State; and that it is only in those actions of which jurisdiction is acquired by the fact of the personal service of the summons on all the defendants within the city of New York that service of the summons out of the city of New York is unauthorized and invalid (Porter v. Lord, 4 Abb. 43; 4 Duer, 682). Process may be served on board a British man-of-war lying within the jurisdiction of the court (1 Opin. Atty. Gen'l. 87).

f. The court refused to set aside the service of a summons, made upon a resident of New Jersey, at a time when he was attending as a witness and party in a suit in which he was a defendant (Pollard v. Union Pacific R. R.