XVI.

NOTICE OF OBJECT OF ACTION, TO ACCOMPANY SUMMONS.

The object of the action, in which a summons is herewith served upon you, is [Here insert clear and concise statement of the object of the suit.

If property is sought to be affected by it, insert description of such property.] And no personal claim is made against you.

Dated.

C. D., Plaintiff's Attorney.

The following statements of the object may be adopted in some of the specific cases in which this course is expedient:

IN FORECLOSURE.

To foreclose a mortgage executed by E. F. to G. H., on the

for securing the sum of

described premises.

[Copy description in full, from mortgage.]

day of

with interest, upon the following

IN PARTITION.

To make partition in due form of law between the parties entitled thereto, of the following described premises.

[Copy in description of property, the same as inserted in the complaint.]

In other actions, vary the statement according to the nature of the case, making any description of property agree with that inserted, or intended to be inserted, in the complaint.

Title.

XVII.

NOTICE OF LIS PENDENS.

Vol. I., § 60; Code, § 132.

N. B.-The names of all the parties should be given in full.

Notice is hereby given, that an action has been commenced and is pending in this court, upon the complaint of the above named plaintiff, against the above named defendants.

[Here state object of action, and give description of the property in the county in which the notice is filed, intended to be affected thereby.] Dated, &c.

C. D., Plaintiff's Attorney.

The following are forms of statement of the object, &c., for specific cases:

IN FORECLOSURE.

For the foreclosure of a mortgage, bearing date the

thousand eight hundred and the office of the

executed by A. B. of

of the county of

on the

, in Liber

of Mortgages, page

one thousand eight hundred and

and that the mortgaged premises in the last-mentioned county affected by the said foreclosure are situate in the [state situation] in the last mentioned county, and are described in the said mortgage as follows, to wit: [Copy in description from mortgage.]

IN PARTITION.

For the partition in due form of law between the parties entitled thereto, of the premises hereinafter more particularly mentioned and described; and that the premises whereof a partition is sought to be made as aforesaid, are situate in the county of and are known and described as follows: [Insert full description of property to be partitioned, copied from the last deed. under which the premises are held; or, if the description there contained be insufficient, then, a corrected one, according to the circumstances.

at

IN EJECTMENT.

To recover the possession of the premises hereinafter more particularly mentioned and described; and that the premises, whereof possession is sought to be recovered as aforesaid, are situate, &c., and are known and described as follows:

[Insert full description. If such a description be contained in the instrument under which the plaintiff claims title, insert it as it there appears; if not, then draw up a full and complete one.]

WHERE AN ATTACHMENT HAS BEEN ISSUED.

[After stating, in general terms, the object of the action, whatever that object may be, continue thus]:

And that a warrant of attachment, under chapter 4, of title 7, part 2, of the Code of Procedure, has been issued in this action, directed to the sheriff of the county of and lodged with such sheriff, which is intended to affect the

real estate in the said county, hereinafter described, to wit:

[Here insert sufficient description of property sought to be affected.]

XVIII.

Title, &c.
County of

AFFIDAVIT OF SERVICE OF SUMMONS.

Vol. I., §§ 54 and 58 (a); Rule 18.

SS.

A. B. (description of deponent), being duly sworn, deposes and says, that on the day of at (state place of service) he served the summons in the above entitled action (hereunto annexed) upon C. D., the defendant (or, one of the defendants), therein, by delivering a copy thereof to him, the said C. D., personally, and leaving the same with him. He further saith, that at the time of such service, he knew C. D., the person so served as aforesaid, to be the person mentioned and described in the said summons as C. D., the defendant (or one of the defendants) therein.

Sworn, &c.

A. B.

If, as is very usual, a copy of the complaint is served with the summons, vary thus.:

He served the summons in the above entitled action, together with a copy of

the complaint therein (respectively hereunto annexed) upon C. D., &c., “by delivering copies of the said summons and complaint to him," &c.

If, instead of the complaint, a copy of the notice of the object of the action is served simultaneously, vary the allegation accordingly.

Several services may, if convenient, be included in one affidavit, by altering the above form, taking care to make a separate and specific allegation, as to the time and place of each such service.

SHERIFF'S CERTIFICATE.

Is usually annexed to, or indorsed upon, the original of the summons, or other process or paper, a copy whereof is served.

Title.

County of X.

SS.

I, C. D., sheriff of the county of X., in the state of New York, do hereby certify that, on the at W., in the said county, I served the

day of

summons in this action, the original whereof is hereunto annexed,

[Or vary statement according to circumstances, the original process or paper being identified as that of which a copy is served.]

upon E. F., the defendant (or one of the defendants,) in the above entitled action, by delivering a copy thereof to him, the said E. F., personally, and leaving the same with him.

Dated, &c.

C. D., Sheriff.

XIX.

SUBSTITUTED SERVICE, UNDER STATUTE OF 1853.

Vol. I., 49-55.
SHERIFF'S RETURN.

Title, &c.,

I, A. B., sheriff of the county of , duly authorized to serve the process for the commencement of this action, which process is hereto annexed, do hereby return and certify, pursuant to the statute in such case made and provided, that proper and diligent effort has been made by me to serve such process on C. D., the defendant in this action, who resides at X., within my bailiwick, and that the said C. D. cannot be found, so that the same service cannot be made by me personally, by such proper and diligent effort as aforesaid.

Or, if so, "that the said C. D. avoids and evades such service, so that," &c. N. B. These facts may also be shown by affidavit, and, in cases of evasion, it may be better to state facts showing such evasion a little more fully.

If the sheriff cannot certify as to the residence of the defendant, that fact should also be shown by affidavit.

ORDER TO BE APPLIED FOR.

On reading and filing the annexed return (or affidavit), and on motion, &c., It is ordered, and I do hereby direct that service of the summons in this action be made, by leaving a copy thereof at the residence of C. D., the above-named defendant, at in the county of with some person of proper age, if admittance can be obtained, and such proper person found who will receive the same; or, if admittance cannot be obtained, or any such proper person found

who will receive the same, then, by affixing the same to the outer or other door of said residence, and by putting another copy thereof, properly folded or envel oped, and directed to the said C. D., at his place of residence, into the post office in the said city (or town) of where he, the said defendant, resides,

A. B., of, &c., being duly sworn, deposes and says that a summons has been issued in this action, that a cause of action on the part of A. B., the plaintiff, exists against C. D., the defendant therein, and that the said defendant cannot, with due diligence, be found within this state.

So far, in all cases; under the first three subdivisions, continue as follows: Under subdivision 1:

That the said defendants are a foreign corporation, carrying on business at in the state of and not incorporated by the laws of this state, *but they the said defendants have property within this state, to wit (give short particulars of property).

Or after *

But the above cause of action arose therein (according to circumstances). Under subdivision 2 :

That the said defendant, being a resident within this state, has departed therefrom with intent to defraud his creditors,

or, has departed therefrom with intent to avoid the service of the summons in this action,

or, keeps himself concealed therein, with intent to avoid the service of the summons in this action.

Here add, in all cases under this subdivision, full particulars, as to inquiries, and attempts made with a view to serve the defendant with process, and their result; giving, in detail, any circumstances tending to show a fraudulent departure, or a fraudulent concealment.

Under subdivision 3:

That the said defendant resides at

in the state of

and is not a

resident of this state, but has property therein, to wit

[give short particulars of property].

And this court has jurisdiction of the subject of this action.

Under subdivision 4, model the affidavit as follows:

A. B., &c., deposes and says, that a summons has been issued in this action, which is brought for (state nature of action,) and the subject whereof is real property at in the county of in this state (or, is personal property in

this state.)

That the above-named defendant, C. D., is a proper party to such action, and has or claims a lien or interest, actual or contingent, in the aforesaid property, to wit (state short particulars of claim).

Or, instead, if the fact be so,

That the above-named defendant, C. D., is a proper party to such action, and

that the relief demanded therein consists in wholly (or, partly) excluding him, the said defendant, from any interest or lien in the aforesaid property.

Add, in both cases, that the said defendant cannot, after due diligence, be found within this state.

Subjoin an allegation, either that he is a non-resident, or else that due dili gence has been used to serve him, without success; giving circumstances and reasons tending to show such diligence. See supra, under subdivision 2. Under subdivision 5:

A. B., &c., deposes and says that a summons has been issued in this action, which is brought by the plaintiff against the defendant, for a divorce in a case prescribed by law, to wit, on the ground of, &c. (state ground on which divorce is sought, in the words or to the effect of the statute), and that a cause of action in the plaintiff exists against the defendant in respect thereof; that the said defendant cannot, &c. Conclude as under last subdivision.

Under the concluding clause of the section, introduced in 1860, model the affidavit thus:

That a summons has been issued in this action, which is brought for the foreclosure of a mortgage on real estate, to wit, upon certain lands and premises at in the county of within this state, and a certain party (or certain

parties), to wit:

[Here insert statement showing the nature of the lien or interest on the premises claimed or claimable by the party or parties sought to be foreclosed.] have an interest in (or, a lien upon) such mortgaged premises, and such party is (or, and such parties are) unknown to the plaintiff, and the residence of such party (or, parties) cannot, with reasonable diligence, be ascertained by him.

IN ALL CASES AS ABOVE,

Whenever the residence of the defendant is unknown, insert allegation to that effect, and also statements, to show that reasonable diligence has been used to ascertain his address, but without success.

Title, &c.

ORDER FOR PUBLICATION.

It appearing to my satisfaction, by the affidavit of S. T., that the above-named defendant, C. D., cannot, after due diligence, be found within this state, and that a cause of action in favor of the plaintiff exists against him, the said defendant. (Or, and that the subject of this action is real property within this state, and the defendant, C. D., is a proper party thereto, and has or claims a lien or interest actual or contingent therein).

[Or vary this statement otherwise, so as to bring the case exactly within the terms of the subdivision, whichever it may be, under which relief is sought to be invoked.]

And, it also appearing by affidavit, as aforesaid, that the said defendant (is a foreign corporation and has property within this state).

[Or, if relief be invoked under any other branch of the provisions of the section, recite in conformity with the affidavit, so as to bring the case within the proper subdivision, using the exact wording of that subdivision.]

Now, therefore, on motion of R. S., attorney for the plaintiff, I do hereby order that service of the summons in this action be made upon the said defendant, C.D., by the publication thereof in two newspapers, to wit, in the and the

published in the county of and which I do hereby designate as most likely to give notice to the said defendant, and that such publication be continued in such newspapers once in each week for six successive weeks. And I do hereby further direct a copy of the summons and complaint in this action to be forth