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11 Civ. Pro. 452.

63 How. Pr. 79; 66 Id. 97.

63 How. Pr. 79; 66 Id.97.

15 Week.

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.

§ 421. The defendant's appearance must be made by serving upon the plaintiff's attorney, within twenty days after service of the summons, exclusive of the day of service, a notice of appearance, or a copy of a demurrer or of an answer. 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. [Am'd 1877.] A defendant, upon whom the plaintiff 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. [Am'd 1877.] Where a personal claim is not made against a defendant, a notice, subscribed by the plaintiff's at torney, 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.

§ 424. A voluntary general appearance of the defendant Dig. 25. is equivalent to personal service of the summons upon him.

108 N.Y. 355.

40 Hun, 313.

$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 service cannot be made afterwards. Where a summons is delivered 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. [Am'd 1879.] Personal service of the summons 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 person 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, idiocy, 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 habitual drunkenness, or for any other cause, is mentally 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. [Am'd 1877.] In a case specified in subdivision first or second of section four hundred and twenty-six of this 3 Month L. act, where the court has, in its opinion, reasonable ground to Bul. 99. believe, that the interest of the person, other than the defendant, to whom a copy of the summons has been delivered, is adverse 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, made, 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 his 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 committee duly appointed for him, is sufficient personal service upon the defendant.

§ 430. A resident of the State of full age, may execute, 105 N. Y. 340. under his hand, and acknowledge, in the manner required by law to entitle a deed to be recorded, a written designation of another resident of the State, as a person upon whom to serve a summons, or any process or other paper for the commencement of a civil special proceeding, in any court or before any officer, during the absence from the United States of the

? 1080, Consol. Act.

121 N.Y. 224.

87 N.Y. 137. aff'g, 24

person making the designation; and may file the same, with the written 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 specified therein, if any; or, if no period is specified for that purpose, for three years after the filing thereof. But it is revoked earlier, by the death or legal incompetency 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 clerk must file and record such a designation, consent, or revocation; and must note, upon the record of the original designation, 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 proceeding, against the person making it, in any court or before any officer, may be served upon the person so designated, in like manner and with like effect, as if it was served upon the person making the designation, notwithstanding the return of the latter to the United States.

§ 431. Personal service of the summons upon a defendant, being a domestic corporation, must be made by delivering a copy thereof, within the State, as follows:

I. 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 city lacks either of those officers, to the officer performing corresponding functions, under another name.

3. In any other case, to the president or other head of the corporation the secretary or clerk to the corporation, the cashier, the treasurer, or a director or managing agent.

§ 432. [Am'd 1877.] Personal service of the summons, 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 corporation lacks either of those officers, to the officer performing corresponding functions, under another name.

35 Hun, 869.
26 N.Y. State
Rep. 440.
116 N.Y.437.

136 N.Y, 343.

2. To a person designated for the purpose by a writing, under the seal of the corporation, and the signature of its presi 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, to be authenticated as he deems proper, and he may refuse to file it without such an authentication. An exemplified copy of a designation so filed, accompanied with

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. If 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 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 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 commenced 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 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.

2 435. Order for service of summons when defendant not found, etc.

436. How service must be made. 437. Papers to be filed; proof of service.

438. Cases in which service of summons by publication, etc., may be ordered.

439. Papers upon which order for publication may be made.

440. By whom order may be
made; contents of order.
441. When publication must be
commenced; when ser-
vice deemed complete.
442. Papers to be filed; notice
to defendant.

443. Id.; when service is made
without the State.

444. Proof of service.

445. Defendant when allowed
to defend.

§ 435. [Am'd 1877 & 1880.] Where a summons is issued in any court of record, an order for the service thereof upon a defendant residing within the State may be made by the court or a judge thereof, or the county judge of the county where the action is triable, upon satisfactory proof, by the affidavit 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 upon 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.] The order must direct, that the ser

26 Hun, 463. 13 Civ. Pro. 278.

46 Hun, 515. 122 N.Y. 263.

4 Civ. Pro. 366.

vice of the summons be made, by leaving a copy 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 a person found who 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, addressed to him, at his place of residence, in the post-office at the place where he resides.

§ 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 be

6 Civ. Pro. 216.

comes 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 purpose, made as prescribed in the next section.

§ 438. [Am'd 1879 & 1884.] An order, directing the service of a summons upon a defendant, without the State, or by 36 Hun, 347. publication, may be made in either of the following cases:

98 N.Y. 665.

15 N.Y.State Rep. 903.

36 Hun, 347.

19 Abb. N. C. 406. 127 N. Y. 493.

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 creditors, or to avoid the service of a summons; or keeps himself concealed therein, with like intent.

3. Where the defendant, being an adult, and a resident of the State, has been continuously without the United States 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. 4. Where the complaint demands judgment annulling a 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 otherwise 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 the time had not been extended by the attempt to

commence the action.

7. Where the action is against the stockholders of a corporation, or joint-stock company, and is authorized by a law of the State, and the defendant is a stockholder thereof.

When a copy of the summons is required by subdivision first or subdivision second of section four hundred and twenty-six

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