Service of copy of complaint-Time of serving complaint - Enlarging time.

Section 2. Service of a copy of the complaint, in what cases necessary. The only case in which the Code expressly authorizes a defendant to demand a copy of the complaint, and gives him twenty days thereafter to answer it, is where there has been a personal service of the summons but no copy of the complaint has been served with it. Mackay v. Laidlaw, 13 How. 129. Under an order for the publication of a summons, a copy of the complaint may be mailed to the defendant, and in this case no further service can be demanded as a right, as the law presumes that the complaint was duly received by the defendant. Id.; Downer v. Mellen, 50 Barb. 232; and in no case is it obligatory upon the plaintiff to serve a complaint on a simple demand by the defendant, after the twenty days allowed by law for the making of such demand has expired. But the court may, in its discretion, and on such terms as may be just, order the plaintiff to serve a complaint after the time for demanding the same has expired. Engs v. Overing, 2 Code R. 79; Bennett v. Dellicker, 3 id. 117.

Section 3. Time of serving complaint. The Code provides that the plaintiff must serve a copy of the complaint upon the defendant within twenty days from demand. Code, § 130. But this rule does not require the plaintiff to wait for a formal demand. He may, at any time after the service of the summons, voluntarily serve the complaint. Van Pelt v. Boyer, 7 How. 325. When several demands are made at different times, but by the same attorney, representing separate defendants in the same action, the twenty days allowed for the service of each copy complaint runs from the date of the first demand. Luce v. Trempert, 9 How. 212. Except under an order enlarging the time for serving the complaint, service after twenty days from demand is a nullity. See § 6, post, 506.

Section 4. Enlarging time of service. Under the provisions of section 405 of the Code, the plaintiff may, upon an affidavit showing grounds therefor, obtain an order extending the time for serving a copy of the complaint. Littlefield v. Murin, 4 How. 306; S. C., 2 Code R. 128. If the time for serving the complaint has expired, this order can be obtained only on notice to the defendant; but if the application is made within the prescribed time, the order may be granted ex parte. Stephens v.. Moore, 4 Sandf. 674. If no notice is required, the application may be made to a county judge, but in other cases to a judge

Time to answer after service of the complaint.

of the supreme court, if the action is pending in that court. Code, § 405; Parmenter v. Roth, 9 Abb. N. S. 385; Rogers v. McElhone, 12 Abb. 292; S. C., 20 How. 441; Merritt v. Slocum, 3 id. 309; S. C., 1 Code R. 68. In case the order is obtained, the affidavit used on the motion, or a copy of the same, must be served with a copy of the order, or the order may be disregarded. Code, § 405. If the order is granted ex parte by a judge at chambers, it need not be entered with the clerk. Savage v. Relyea, 3 How. 276. The papers should be served in the same manner as other papers or orders in a suit. See Code, § 409.

Section 5. Time to answer after service of the complaint. As a general rule the defendant is allowed twenty days from the time of the personal service of the complaint, in which to serve his answer, and double the time is allowed when the complaint is served by mail. Code, §§ 130, 412.

By section 183 of the Code, the defendant is allowed twenty days after the service of an order of arrest, in which to serve an answer, instead of being required to answer in twenty days after the service of the summons.

Previous to the amendment of this section, a defendant was personally served with a summons, and within twenty days thereafter the plaintiff voluntarily served a copy of the complaint, and had the defendant arrested, from which he was discharged. No return of the service of the order of arrest, or of the complaint, was made, nor did the defendant appear in the action, or demand a copy of the complaint. At the end of twenty days from the service of the summons, the plaintiff entered judgment as for want of an answer. The defendant, after the entry of judgment, but within twenty days after the service of the complaint and order of arrest, moved to extend the time to answer, which motion was only granted on terms, and the entry of judgment was held to be regular. Van Pelt v. Boyer, 7 How. 325.

The time to answer may also be extended by an order for that purpose, or by the written stipulations of the attorneys, but not otherwise. McGowan v. Leavenworth, 2 E. D. Smith, 24; Code,

405. See Rule 16, Supreme Court. But no order extending the time to answer will be granted unless the moving party presents to the justice or judge to whom the application is made, an affidavit of merits or proof that it has been filed, or an affidavit of the attorney or counsel retained to defend the action,

Effect of an omission to serve the complaint.

that, from the statement of the case in the action made to him by the defendant, he verily believes that the defendant has a good and substantial defense upon the merits to the cause of action set forth in the complaint or some part thereof. And the affidavit must also state whether any extension of time to answer has been granted by stipulation or order. Rule 30, Supreme Court.

Section 6. Effect of an omission to serve the complaint. If a copy of the complaint is not served within twenty days after the demand therefor, the defendant may move to dismiss the complaint, under section 274 of the Code. This will, in effect, be equivalent to a motion to dismiss the action. Baker v. Curtis, 7 How. 478. See Judgment for Failure to Proceed, post, p.

This right is confined to defendants served with a summons. Thus, where several defendants are named in the summons, and a part only are served, those only who have been served can appear and ask a dismissal of the complaint under section 274, unless they have some right to defend which renders such appearance necessary. Tracy v. Reynolds, 7 How. 327. A plaintiff has a right in such cases to serve a complaint upon those who have been served with a summons, and to omit service upon the others, and those served with a complaint cannot ask the court to dismiss the complaint in favor of the other defendants. Travis v. Tobias, 7 How. 90.

Serving a copy of the complaint after the time for such service has expired is in effect equivalent to not serving it at all. The defendant need not receive the complaint so served, and may safely disregard it. It should, however, be promptly returned to the plaintiff, or the defendant will be held to have waived the irregularity by retaining it beyond a reasonable time. Baker v. Curtiss, 7 How. 478. See Rule 26, Supreme Court. This time has never been limited to a shorter period than the same day, or extended to one greater than six days. McGowan v. Leavenworth, 2 E. D. Smith, 24; Knickerbacker v. Loucks, 3 How. 64; Hollister v. Livingston, 9 id. 140; Levi v. Jakeways, 4 id. 126; S. C., 2 Code R. 29. But the defendant is under no obliga

tion to return a complaint served after the service of a notice of motion to dismiss the complaint. Baker v. Curtiss, 7 How. 478.

CHAPTER II.

SERVICE OF THE SUMMONS.

ARTICLE I.

THE SERVICE AND BY WHOM MADE.

Section 1. Service in general. In the previous chapter the essentials of a valid summons have been discussed at length. The remaining and most important consideration is the service of the summons when issued. Errors in the form of a summons may be corrected by amendment even after judgment; but no proceeding on the part of the plaintiff can remedy a jurisdictional defect arising from an insufficient service; and no delay to assert his rights, on the part of the defendant, will debar him from the privilege of setting aside, as void, such service and all the subsequent proceedings. It is not so essential to consider by whom a summons shall be served, as how such service shall be made. 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. Code, § 133.

Section 2. Service by sheriff. The sheriff, as the executive officer of the court, is, theoretically, the person to whom a summons may most properly be delivered for service. Service of process is in the line of his official duty, and if he fail or neglect to perform such duty or make the proper return, the party aggrieved thereby may serve on him a notice to return such process within ten days, or show cause at a special term why an attachment should not issue against him. Rule 10, Supreme Court. Wilson v. Wright, 9 How. 459. His certificate of service is conclusive evidence as against all parties but the defendant; and his fees for service are fixed by statute, and can be taxed in the bill of costs as disbursements. Van Rensselaer v. Chadwick, 7 id. 297; Case v. Price, 9 Abb. 111; 2 R. S. (644) 663. When a summons is placed in the hands of the sheriff for service he is liable to the plaintiff for any damages sustained by him from any neglect to make such service or the proper return. 2 R. S. (440) 458; Code, §§ 133, 419; Rule 10, Supreme Court.

Service by a private person-Service by a coroner, when proper.

Ledyard v. Jones, 7 N. Y. (3 Seld.) 551. None of these advantages can be claimed when service is made by a private person. See next section.

But the sheriff can make such service in an official capacity, only within the county in which he was elected, and any act performed by him out of such territorial limits is the act of a private person. Farmers' Loan and Trust Company v. Dickson, 17 How. 477; S. C., 9 Abb. 61; Thurston v. King, 1 id. 126; Morrell v. Kimball, 4 id. 352.

In no case is the sheriff required to serve a summons unless his fees for such service are prepaid. Wait v. Schoonmaker, 15 How. 460. But if he serves them without requiring prepayment, he cannot retain them, and refuse to make a return, because his fees are not paid. Ib. As to the amount of such fees, see Laws of 1871, ch. 415, § 1, subd. 1; Laws of 1872, ch. 26. Section 3. Service by a private person. The service of a summons by a private person, when properly made, is as valid and effective as a service by a sheriff. See Mills v. Corbett, 8 How. 500. The only distinctions made in respect to the service by persons in an official or a private capacity, relate to the character of the proof required, the right to a fixed compensation, and liability for negligence. A private person in making a service is required to know that the party served is the person mentioned and described in the summons as the defendant, and to carefully note the time, place and manner of the service. Rules 23, 24, Supreme Court.

A private person cannot claim as a right the fixed sum granted by law to an officer as a fee for the service of a summons. But he is entitled to a reasonable compensation, the amount of which must be determined by the clerk. Case v. Price, 9 Abb. 111; S. C., 17 How. 348; Benedict v. Warriner, 14 id. 568.

A constable is not regarded as an officer of a court of record for this purpose, and the service of a summons by him must be treated as a service by a private person.

Section 4. Service by a coroner, when proper. Whenever an action of replevin shall be brought by or against the sheriff of any county, the writ and all processes in the cause shall be awarded to and executed by the coroners of the county. 2 R. S. 551, Edm. Ed.; 3d R. S. (5th ed.) 849.

It is also provided, that whenever the sheriff of any county is a party in any suit, all process in such suit, except when other