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may state circumstances]; that deponent knew the person so served to be the person mentioned and described in said summons as defendant therein [or where identified by inquiry, state facts," as in Form No. 375].

[Jurat.]

FORM No. 370.

Another form; service on many defendants.

[Signature.]

71

[As in preceding Form to the *, continuing] at the time[s] and the place[s] and in the manner hereinafter stated, he served the within [or, annexed] summons [and complaint — or, and notice of judgment in case of default- or, and notice of no personal claim or, indorsement of reference to statute] upon the defendants named in said summons, to wit: on said U. V., at [specify particular place] in the village of

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in the county

; on said W. X..

; on said Y. Z., at by [etc., adapting

from preceding Form, from the †].

FORM No. 371.

The same: On infant under fourteen and next friend.72

[As in last Form but one, to the t, concluding thus:] an infant under 14 years of age, by delivering a copy thereof to him personally, and leaving the same with him, and at the same time and place [otherwise, according to the fact], deponent delivered a copy thereof to and left the same with W. Z., the father [or, mother — or, guardian or if neither was within the State, the person-indicating relationship, if any - then having the care and control

70 See note to paragraph 8, p. 639; if for any reason it is deemed desir able to show the details of what occurred, continue, for instance, thus: by tendering a copy thereof to him personally, and on his refusal to receive the same, deponent stated to him that they were the summons [and complaint or otherwise] in an action against him, and that he, deponent, thereby served them upon him, and deponent then laid them down upon defendant's desk, saying to him, "I hereby deliver these to you," and thereupon left the same with him. Matter of McGarren, 112 App. Div. 503, 98 N. Y. Supp. 415; Correll v. Grangeth, 12 Misc. 209, 34 N. Y.

Supp. 25. See also Wright v. Bennett, 30 Abb. N. C. 65, note.

It is the more usual practice, however, to merely make the formal statement of "delivering to and leaving with" defendant, unless the details are required upon a motion to vacate the alleged service.

71 Where the process server's knowl edge of the defendant rests upon his corresponding with a description, an affidavit cannot truthfully be made that the defendant was known to him, etc. See O'Connell v. Gallagher, 104 App. Div. 492, 93 N. Y. Supp. 643.

72 Under N. Y. Code Civ. Pro. § 426, subd. 1.

of said Y. Z., or, with whom said Y. Z. was then residing — or, in whose service said Y. Z. was then employed-in case of such service on person other than parent or guardian, adding oath that infant had none within this State]. That deponent knew the defendant Y. Z. so served to be the person mentioned and described in the said summons as defendant herein, and the said W. Z. to be his father [or otherwise, as above or, where identified by inquiry, state facts. See Form No. 375].

[Jurat.]

FORM No. 372.

[Signature.]

The same: · On judicially declared incompetent, by delivering copy to

committee.73

[As in last Form but two, inserting at the end:] And at the same time and place [or, otherwise according to the fact] deponent delivered a copy thereof to and left the same with W. X., whom deponent knew to be the committee of said Y. Z., duly appointed by the Court, at on or about the day of

19

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FORM No. 373.

Order requiring service of summons upon another person when defendant is incompetent, but not judicially so declared.74

[Title.]

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At a Special Term [etc.]

Upon reading and filing the affidavit of M. N., verified on the day of 19 , and the court having, in its opinion, reasonable ground to believe that the defendant herein by reason of habitual drunkenness [or specify any other cause] is mentally incapable adequately to protect his rights, although not judicially declared incompetent, it is

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ORDERED, That a copy of the summons be also delivered in behalf of said defendant to O. P., Esq., of and that service of said summons shall not be deemed complete until it is so delivered; and it is further

ORDERED, that notice of all further proceedings in the action

73 Plaintiff must first obtain leave

to sue. See Chap. II, Article VI, LEAVE TO SUE, pp. —,—.

74 Under Code Civ. Pro., § 427. As to the provision in the order for the further protection of defendant's

interest, see Behlen v. Behlen, 73 App. Div. 143, 76 N. Y. Supp. 747; American Mortgage Co. v. Dewey, 106 App. Div. 389, 94 N. Y. Supp. 808, 35 Civ. Pro. Rep. 48. In the latter case the plaintiff made the application.

be served upon said O. P., and he shall have the right to intervene and protect the interests of said defendant as he may be advised.

FORM No. 374.

Affidavit of service upon a person designated by defendant.75

[As in Form 369, to t, continuing:] by delivering to and leaving with O. P., of a true copy thereof.

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That said O. P. has been duly designated by the defendant, under § 430 of the Code of Civil Procedure, as a person upon whom a summons may be served during defendant's absence from the State of New York; that a certified copy of said designation and the consent of said O. P.,76 as duly filed in the office of the county clerk of County, are hereunto annexed, together with a certificate of said county clerk that no revocation of such designation or consent has been filed in his office."

77

That deponent knew the said O. P., so served by him, to be the person mentioned and described in the annexed designation and

consent.

[Jurat.]

FORM No. 375.

[Signature.]

Affidavit of personal service in matrimonial action.78

[As in Form No. 369, adding statement of how deponent knew the person served to be defendant, and the proper person to be served and how he acquired such knowledge, for instance thus:]

[Where deponent had previous personal knowledge] That deponent knows said Y. Z. to be such defendant and the proper person to be served with said summons, because he has known said defendant about two years last past, and also knew the plaintiff and defendant to live and cohabit together as man and wife at No. street, in the city of during the year 19, and has seen them introduce themselves as such; deponent has also seen their marriage certificate; deponent also knows defendant's father and mother, and brought a message from defendant to them.

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[Where deponent acquires his knowledge of identity at the time of service] That deponent knows said Y. Z. to be the defendant

75 The service is effective notwithstanding defendant has returned to the state. Code Civ. Pro., § 430.

76 The designation is ineffective until the consent also is filed. Lyster v. Pearson, 7 Misc. 98, 27 N. Y. Supp. 399.

77 The designation continues effective for three years, unless a different

time is specified in it. The death or incompetency of either party operates as a revocation, but the affidavit need not negative such a revocation in the first instance.

78 These special requirements of proof of such service are prescribed by N. Y. Gen. Rules No. 18.

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79

herein and the proper person to be served from the following facts: That previous to the aforesaid service on defendant of said summons and complaint, deponent obtained a full, concise, and minute description of said defendant from the plaintiff herein as to his appearance, height, color of hair, features, etc.; that said No. street [place where service was above alleged to have been made], is a hotel, known as the "Hotel Germania"; that deponent, on entering said hotel, did not meet any person until he reached the second floor, on which floor the office of the hotel is situated; here deponent saw only one person who answered the description of said defendant, and deponent accosted him and asked for " Mr. Y. Z."; said person immediately said, "I am he"; deponent then asked him again "Are you Y. Z.?" to which said person answered, "Yes, sir; I am; what do you want?" Deponent then delivered and served said summons and complaint upon defendant as aforesaid; that deponent did not see any person on said floor, or in the immediate neighborhood of said floor, whom he could interrogate as to the identity of said defend

ant.

That the plaintiff in this action was standing down stairs in lower hallway of said hotel, but out of sight of said defendant; that deponent, after said service, went down stairs and requested the plaintiff to look up, and deponent would speak to said defendant, and plaintiff should look at him and see if the person served as aforesaid is her husband; that deponent again went upstairs and accosted the said defendant, and the plaintiff herein looked up from down stairs (said defendant being in the lower hall, and could see to the head of the stairs on the second floor), where deponent accosted said defendant, he having a lamp in one of his hands, which threw a full glare over his features; deponent again asked defendant if he was Y. Z., said defendant answering, "Yes, sir, I am the man"; deponent then left and went down stairs, and said plaintiff told deponent that she recognized her husband in the man deponent accosted. That subsequently, and on the day of 19 deponent again went to said No.

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street, and on the second floor of said building deponent saw a man (unknown to deponent), and deponent asked him for "Mr. Y. Z."; that said person then pointed out to deponent the defendant herein, and said "that is Mr. Z."; that deponent recognized said person so pointed out as the defendant in this action,

79 Recognition by such description is not alone enough.

and as the person on whom deponent served said summons and complaint as aforesaid, and who admitted to deponent that he was the defendant in this action.

[Jurat.]

[Add, if practicable, corroborating affidavits.80]

[Signature.]

FORM No. 376.

Affidavit of service on a convict in prison.81

[Add to Form No. 369:]

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said defendant hav

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That said service was made in the presence of the superintendent in charge of the Reformatory at ing been theretofore sentenced to said Reformatory, by the Court [and said superintendent then and there stated to said defendant that he could defend said action and consult his attorney and counsel for the purpose.]82

FORM No. 377.

Affidavit of service on sheriff by serving under-sheriff or leaving at office.83

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[As in Form No. 369, to the *, continuing thus:] on the day of 19 deponent being then more than twentyone years [or, if a minor, state number of years] of age, he served the within [or, annexed] summons [and complaint] on said Y. Z., sheriff, defendant, by personally delivering a copy thereof to and leaving the same with M. N., defendant's under sheriff, at [stating particular place].

[Or, if at office, say, between the hours of

and

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84

with a person then in charge of the office of said sheriff, at No. street, in , to wit: defendant's under sheriff or, deputy sheriff O. P.- or, with a clerk in the employment of said sheriffin either case adding, said office being the place

80 This Form is from Kaiser v. Kaiser, 16 Hun, 602. See, also, Spaulding v. Lyon, 2 Abb. N. C. 203; Matter of McGarren, 112 App. Div. 503, 98 N. Y. Supp. 415; Randall r. Randall, 29 Misc. 423, 60 N. Y. Supp. 718; same case, with extensive note on this subject, 7 N. Y. Anno. Cas. 45; Fowler v. Fowler, 29 Misc. 670, 61 N. Y. Supp. 108; Fawcett v. Fawcett, 29 Misc. 673, 61 N. Y. Supp. 109. If copy complaint was not served with the summons, insert "and the inscription on the face of the annexed copy summons in the words 'action for a divorce' [etc., as in summors], was

legibly written [or, printed] on the face of the copy of the summons delivered to the defendant."

81 Such service is valid. Davis . Duffie, 1 Abb. Ct. App. Dec. 486; Slade v. Joseph, 5 Daly, 187.

82 This clause is not deemed essential to proof of service.

83 A proper method in actions for escape only. N. Y. Code Civ. Pro., $ 426, subd. 3. In other actions against a sheriff serve him personally. Sherman v. Conner, 16 Abb. Pr. (N. S.) 396.

84 The hours during which the sheriff's office is required to be open.

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