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the court must direct them to be brought in. And where a person, not brought in a party to the action, has an interest in the subject thereof, or in real

TITLE 2. ties to be

Supplemental

property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.

§ 453. Where the court directs a new defendant to be brought in, summons. and the order is not made upon his own application, a supplemental summons must be issued, directed to him, and in the same form as an original summons; except that, in the body thereof, it must require the defendant to answer the original or the amended complaint, and the supplemental complaint, or either of them, as the case requires. And each provision of this chapter, relating to personal service, or a substitute for personal service of an original summons, applies to such a supplemental summons.

Persons

liable for the same demand may be sued together.

Defendant so sued

ARTICLE SECOND.

PARTIES SEVERALLY LIABLE.

SECTION 454. Persons liable for the same demand may be sued together.
455. Defendant so sued may apply for any relief.

456. Proceedings in actions against defendants severally liable.
457. Application of this article to defendants jointly liable.

§ 454. Two or more persons, severally liable upon the same written instrument, including the parties to a bill of exchange or a promissory note, whether the action is brought upon the instrument, or by a party thereto to recover against other parties liable over to him; may, all or any of them, be included as defendants in the same action, at the option of the plaintiff.

§ 455. The joinder of a person, as defendant in an action, with may apply another person, as prescribed in the last section, does not affect his right to any order or other relief, to which he would have been entitled, if he had been separately sued in the action.

for any relief.

Proceedings in action

fendants

severally

liable.

§ 456. Where a summons, issued against two or more defendants, alleged to be severally liable, is served upon some, but not upon all of against de them, the plaintiff may proceed against those upon whom it is served, as if they were the only defendants named therein. Where it is served upon all of them, the plaintiff may take judgment against one or more of them, where he would be entitled to judgment, if the action was against him or them alone. Where judgment is so taken, the clerk must, upon the plaintiff's application, enter an order, directing that the action be severed, and that the plaintiff may proceed against the other defendants. In any subsequent proceeding, the plaintiff may use, together with a certified copy of such an order, a copy of a paper constituting a part of the judgment-roll, with like effect as if it was the original.

Applica

tion of this

§ 457. The last three sections do not affect a defence or other objecarticle to tion of a defendant, growing out of the failure to join in the action defendants two or more persons jointly liable; and, as regards the other parties liable. to the action, persons jointly liable are regarded as one party, for every purpose contemplated by those sections.

jointly

86

ART. 8.

ARTICLE THIRD.

PARTIES PROSECUTING AND DEFENDING AS POOR PERSONS.

SECTION 458. Who may petition for leave to prosecute as a poor person.

459. Contents of petition.

460. When and how leave granted.

461. Not liable for costs and fees.

462. When leave may be annulled.

463. When defendant may petition to defend as a poor person
464. Contents of petition.

465. Proceedings thereon.

466. Appeal, when party prosecutes or defends as a poor person.
467. Costs in favor of petitioner.

leave to

von for prosecute person.

as a poor

§ 458. A poor person, not being of ability to sue, who alleges that Who may he has a cause of action against another person, may apply, by petition, to the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute as a poor person, and to have an attorney and counsel assigned to conduct his action. § 459. The petition must state:

1. The nature of the action brought, or intended to be brought. 2. That the applicant is not worth one hundred dollars, besides the wearing apparel and furniture, necessary for himself and his family, and the subject-matter of the action.

It must be verified by the applicant's affidavit, and supported by a certificate of a counsellor at law, to the effect that he has examined the case, and is of opinion that the applicant has a good cause of action.

Contents of petition.

how leave

§ 460. The court to which the petition is presented, if satisfied of When and the truth of the facts alleged, and that the applicant has a good cause granted. of action, may, by order, admit him to prosecute as a poor person, and assign to him an attorney and counsel to prosecute his action, who must act therein without compensation.

for costs

§ 461. A person so admitted, may prosecute his action, without pay- Not liable ing fees to any officer; and he shall not be prevented from prosecuting and fees. the same, by reason of his being liable for the costs of a former action, brought by him against the same defendant,* if judgment is rendered against him, or his complaint is dismissed, costs shall not be awarded against him.

leave may be an

$462. If the person so admitted is guilty of improper conduct in the When prosecution of his action, or of wilful or unnecessary delay, the court may, in its discretion, annul the order admitting him to prosecute as a nulled. poor person; and he shall thereafter be deprived of all the privileges Conferred thereby.

fendant

fend as a

§463. A defendant in an action involving his right, title, or interest, When dein or to real or personal property, may petition the court, in which the may petiaction is pending, for leave to defend the action as a poor person, and tion to deto have an attorney and counsel assigned to conduct his defence. poor per464. The petition must contain the same matters, respecting the son. ability of the petitioner, required to be contained in a petition for leave petition. to prosecute as a poor person; and it must be supported by a similar certificate, relating to the defence.

Contents of

So in the original.

TITLE 2. Proceed

on.

§ 465. The provisions of this article, relating to the order, to be ings there made upon an application for leave to prosecute as a poor person, and the proceedings subsequent thereto, apply to the order and subsequent proceedings, upon an application for leave to defend as a poor person. Appeal, § 466. An order, made as prescribed in this article, does not authorize when party prosecutes the petitioner to take or maintain an appeal, as a poor person; but or defends where an appeal is taken by the adverse party, the order is applicable. in favor of the petitioner, as respondent in the appeal.

as a poor person. Costs in favor of

§ 467. Where costs are awarded in favor of a person, who has been petitioner. admitted to prosecute or defend as a poor person, as prescribed in this article, they must be paid over to his attorney, when collected from the adverse party, and distributed among the attorney and counsel assigned to the poor person, as the court directs.

Right of infant to bring action.

Guardian for infant plaintiff must be appointed.

Application therefor.

Applica

pointment

ARTICLE FOURTH.

INFANT PLAINTIFFS AND DEFENDANTS.

SECTION 468. Right of infant to bring action.

469. Guardian for infant plaintiff must be appointed.

470. Application therefor.

471. Application for appointment of guardian for infant defendant.
472. Guardian, how appointed. Clerk, when to act.

473. Guardian for infant defendant in certain real actions.

474. Guardian not to receive property until security given.
475. Security.

476. Last two sections not to apply to general guardian.
477. Liability of defendant's guardian for costs.

§ 468. Where an infant has a right of action, he is entitled to maintain an action thereon; and the same shall not be deferred or delayed, on account of his infancy.

§ 469. Before a summons is issued, in the name of an infant plaintiff, a competent and responsible person must be appointed, to appear as his guardian for the purpose of the action, who shall be responsible

for the costs thereof.

§ 470. The guardian must be appointed upon the application of the infant, if he is of the age of fourteen years, or upwards; or, if he is under that age, upon the application of his general or testamentary guardian, if he has one, or of a relative or friend. If the application is made by a relative or friend, notice thereof must be given to his general or testamentary guardian, if he has one; or, if he has none, to the person with whom the infant resides.

§ 471. An infant defendant must also appear by guardian, who must tion for ap be a competent and responsible person, appointed upon the application of guardian of the infant, if he is of the age of fourteen years, or upwards, and defendant. applies within twenty days after service of the summons; or, if he is

for infant

under that age, or neglects so to apply, upon the application of any other party to the action, or of a relative or friend of the infant. Where the application is made by a person other than the infant, notice thereof must be given to his general or testamentary guardian, if he has one within the State; or, if he has none, to the infant himself, if he is of the age of fourteen years, or upwards, and within the State or, if he is under that age, and within the State, to the person with whom he resides.

ART. 4.

Clerk,

§ 472. The court in which the action is brought, or a judge thereof, Guardian, or, if the action is brought in the supreme court, the county judge of how ap the county where the action is triable, may appoint a guardian ad litem pointed. for an infant, either plaintiff or defendant, as prescribed in this article. when to The clerk must act in that capacity, where the court or the judge appoints him. No person, other than the clerk, shall be appointed such a guardian, unless his written consent, duly acknowledged, is produced to the court or judge making the appointment.

act.

for infant

in certain

§ 473. Where an infant defendant resides within the state, and is Guardian temporarily absent therefrom, the court may, in its discretion, make defendant an order designating a person to be his guardian ad litem, unless he, incerta or some one in his behalf, procures such a guardian to be appointed, tions. as prescribed in the last two sections, within a specified time after service of a copy of the order. The court must give special directions in the order, respecting the service thereof, which may be upon the infant. The summons may be served by delivering a copy to the guardian so appointed, with like effect as where a summons is served without the state upon an adult defendant, pursuant to an order for that purpose, granted as prescribed in section four hundred and thirty-eight of this act; except that the time to appear or answer is twenty days after the service of the summons, exclusive of the day of service.

§ 474. Except in a case where it is otherwise specially prescribed by Guardian law, a guardian, appointed for an infant, as prescribed in this article, not to reshall not be permitted to receive money or property of the infant, other erty until security than costs and expenses allowed to the guardian by the court, until he given. given sufficient security, approved by a judge of the court, or a County judge, to account for and apply the same, under the direction of the court.

$475. The security must be a bond to the infant, in such penalty as Security. the judge directs, not less than twice the sum, or the value of the property, to be received, executed by the guardian and at least two sureties approved by the judge, and filed in the office of the clerk. The infant, or any other party to the action, may afterwards apply for an order, directing a new bond to be given, with an increased penalty; or the court may so direct, of its own motion.

sections

8476. The last two sections do not apply to the general guardian of Last two the infant, who has been appointed his guardian ad litem, as prescribed not to apis this article; but the court may, at any time, require the general plyt guardian to give additional security for the faithful discharge of his guardian. trust, before receiving money or property of the infant, under a judgment or order in the action.

general

defend

8477. A person appointed guardian, as prescribed in this article, for Liability of an infant defendant in an action, is not liable for the costs of the action, ant's guarunless specially charged therewith by the order of the court, for per- dian for sonal misconduct.

costs.

89

TITLE 1.

CHAPTER VI.

PLEADINGS IN COURTS OF RECORD, INCLUDING COUNTER
CLAIMS.

TITLE I.-THE CONSECUTIVE PLEADINGS IN AN ACTION.

II. PROVISIONS GENERALLY APPLICABLE TO PLEADINGS.

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TITLE I.

The consecutive pleadings in an action.

ARTICLE 1. Complaint.

2. Demurrer.

3. Answer.

4. Reply.

ARTICLE FIRST.

COMPLAINT.

First

pleading to be com

plaint.

plaint,

served.

SECTION 478. First pleading to be complaint.
479. Copy complaint, when to be served.
480. Consequence of failure.

481. Complaint what to contain.

482. When interlocutory and final judgment may be demanded.
483. Causes of action to be separately stated.

484. What causes of action may be joined in the same complaint.

* 485. When cause of action deemed single.

*486. When alternative legal or equitable judgment may be demanded.

§ 478. The first pleading, on the part of the plaintiff, is the com plaint.

§ 479. If a copy of the complaint is not delivered to a defendant, ‹ Copy com- the time of the delivery of a copy of the summons to him, either withi when to be or without the State, his attorney may, at any time within twenty d after the service of the summons is complete, serve upon the plainti attorney a written demand of a copy of the complaint, which must 1 served within twenty days thereafter. The demand may be incorp rated into the notice of appearance. But where the same attorne appears for two or more defendants, only one copy of the complai need be served upon him; and if after service of a copy of the cor plaint upon him, as attorney for a defendant, he appears for anoth defendant, the last defendant must answer the complaint, within twen days after he appears in the action.

Conse

quence of failure.

§ 480. If the plaintiff's attorney fails to serve a copy of the i plaint, as described in the last section, the defendant may app the court for a dismissal of the complaint.

*Stricken out.

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