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Cornell Law School Library
ornell Universi

KFN6003.W28
SERVICE OF PAPERS

UNDER THE

New York Code of Civil Procedure

AND STATUTES,

WITH DECISIONS FROM OTHER STATES AND
APPENDIX OF FORMS.

BY _
HENRY E. WARNER,

CouNSELOR AT Law, AND AUTHOR oF “LAW OF EVIDENCE
UNDER THE CODE oF CivIL PROCEDURE OF THE
STATE OF NEW YORK,”’ ETC,

BANKS & BROTHERS,
NEW YORK AND ALBANY, N. Y.

1890.
DQ. SFE

 

Copyright, 1890,
By BANKS & BROS.

 
iii

PREFACH.

Tus is the first time that the subject of the service of
papers has beeat, considered in a work, by itself.

The states, and ‘the ‘decisidns velating thereto, are scat-
tered through many volumes, and the nearest approach to
a compilation or classification of the law respecting the
service of papers in an action, or civil special proceeding, is
to be found in the very brief treatment of the subject by a
few text books.

The importance of those decisions, numerous as they are,
and affecting as they do the jurisdiction of courts in matters
coming before them for adjudication, and the large number
of various proceedings in which the service of papers is
assimilated to the service of a summons in a civil action,
render it necessary that they all be included, with convenient
references, in one volume.

The design has been to cite such cases from other states as
are in harmony with the law and decisions of this State, and,
as far as respects the latter, to make the work as exhaustive
as possible.

Each casé has been verified, and the endeavor has been to
make the work reliable and useful.
iv PREFACE.

The author submits the work to the profession, trusting
that it may prove of some value to them.
HENRY E. WARNER.

Nort Tonawanpa, N. Y., March, 1890.
Vv.

CONTENTS.

PAGE.

PREBA CB ey siwicssauisi acai ssenoons pee eaunanicd 6 alae digi iby elbiolaigia'e dig Sistema ee iii
TABLE OF CASES..........00ece eens sib lerelteial Sietewwiaterate Sila sere Ae ae

PERSONAL SERVICE OF THE SUMMONS. .......0ccecee cece eee e ee eeeees 1-56

When and by whom served.......... ccc es cece ccc c neces eee eeeeaees 1

by. PH Vate: Person wis eeccescodevisiewee es esos ee oe oy die AR RE 1

by, SHETUE 2. soo lw Gate ayee ieee ues trae nets wee ete i hele lenses 2

DY. COPONED io: nvsatesnsstinera aie Megan i sigiteiee ese ese deka reese. 4

Personal service of summons upon natural person...............-..-- 4

SELVICE Of COPYiicss cca see swasapieniacdere aang gasses sie gis alee ik 5

WLODE COPY. sis saweie emetic sope sieeve eb seeeaGesy Gawsamwnrls 6

SUbAIVISIONSONEwinissearcncternsis ea Ga es vielen ede RGSS ER awaneAUe RRND 6

GW josics sai lisisivia's wo a aiealetate ss 2 s$ie OS RUR ES ONS ReSeeNetS 7

three! sia scene aana sane pan'p sd oe SNe O eR Guba 7

LOUP sa vawscauniieds sade esas e bees RedeeRR eee. 8

service, HOW Made. «esasaciens dvsssssveseiersresdecesseeenawuss 8

when sufficient .........-..0...... soentaneaes Mesieuanestees 9

Dy WIOIENCE acirag.scsvaceyeis 6 545 alec w oe ene aaalesars leisis Mramsbaveedebesnla 9

by fraud sescc0 50000535 a ee id SusbetSvauave aeonale de denies aaa sea 10

time of service................ pogierachve dateid eee e Aaa eessGiern eisaners sivinee odie:

SCFVICEON SUNAY be0.cs.cbs ok cas nie bow Gh wes euatemaenadwogen 13

PaAlWCdayjsisscske gen case tend ce cameeaada ganas 14

Half holiday... 30.65 keh ange abaersaoeye ener.’ 14

ClECHONAYs aw sitaak acudiad Gatcegae sae ema 44 14

day of town meeting...........0.. cece ee ee ee ee eee 15

PIACE OF SPVICE i ose dee Shvasls adulind Medinet aiaoussue ee cewes 15

service within territorial jurisdiction.............+. ..00% fae LD

on man-of-war, CtC....... eee erence eee oee a egislee seis 18

on a county or town........ cose evccoscccce weaasecee 18

on a city or village...... $43 OU s ERS RU OER CU REaER, LS

ON APHISONEL. 4.6 ss eectisesssreieavowserasseneessions 19
vi CONTENTS.
PAGE
Personal service on husband and wife................ ae aareiiats Bavnnwre wees 20
OM WITESS eisdranndae cade toleieivans Veen teu ualen eed an 20
on ambassador....... ceeeeeee ee eeee Sob Cpe uieanaere sient: (28
Service of summons, when lunacy, etc., not judicially declared.......... 24
Service on other than incompetent person..............cceeeeeeeeecens 25
When delivery of copy of summons to lunatic dispensed with........... 25
Designated Sérvice Of SUMMONS «i000 teas yesees Mae +s 0A Wee eNe tos 26
Personal service of summons on domestic corporation..............65 . 27
domésti¢ Corporation defined... 2 ccc wa weiecs cn aawawiemeecc aes dees 28
on Officersiof the: corporation «oo. cease eden sc aee a neneae sete 28
who is a@.managing- agent... ccscssaaui needa edd tee eaeeeaee oes eedee 29
Personal service of summons on foreign corporation..........-.6e.eee ee 82
under Code of Procedure...........eseseeee eee ceeeeeee sieraeeeees 384
undér Codé of Civil Procedure... .. oi. e0ceseans sccc itawestoceseeee 35
definition of foreign corporation...........+. eee cere soe reese 85
legislature may regulate ServiCe. 0.1.26... e ee ee eee eee eee eee 35
SUDGIVISION: ONG, 25.5.6 siden csia dae ce eeReatehee oe oe ee MedeeGnenaeys 35
EWOrss oScsewiecie teen Se eee aes Hiiwe ge ewweeaaastes a7
THERES coed ces dances eee stesodvan cu c's eesheweontawr e4 387
property within the State icccsors occas cddeneoeasiierrs 37
where cause of action ariseS ...-..... ee cece cece cece eee 38
who are managing agents.........6. eee cence eee eeeee 41
Service of process, etc., to commence a special proceeding.............. 43
Proof of personal service of summons....... Ry ide RESO Se Aelancnietiars 43
Affidavit Of SOrVICCscncei sy seas sie wwmscicne dee vey waU mame ea siees 44
by WHOM Made.44 same e en nomen Seehawep te aoraed 44
ACC ia view hebeaniet dese ese pee eat de aaa menses 44
time, place, and manner of service, ete.......--..-... eee 45
in actions for: divorce s.ccaiic cies nncmrede sop wie ane tude males 46
HIN ‘OF PLOOk sisi aced eo haw ates sresroye moore athe ee. sin 6.9.4. eis aipini and 47
disputing the service...........6 sinh avbeauacd ialsi 5-8 0: gadeasdea coualetmacee 1
defective service, how cured............6 cescceesceereve 48
Sheriff's certificate Of SCrvic@... 66. e cece eee eee eee eee eens 48
proof by affidavit... .....c.e cee e eect eee e nee e cere eneseee 48
by whom made.. ....... 2 eee eee (aibiadedep Saab op NEE Bk ede 49
requisites of certificate.............4- Pan eeiaeee to a coos 49
SffectiOf CertiACabesntacsiinseciaso0.0.9) sdsdalecniowe re need aieededs 50
AAMission: Of ‘SCLVICEE cwainenaeed sad abe dhNeens aaah weiae wees Rees 4 Ok

POOAGiOF SERVICES ¢.csasdiereierg wscraararesnge sie he bse vermieiene Jeeaasanee OL
CONTENTS. vii

PAGE.
Proof of Personal Service, (Continued.)

sufficiency of admission....... ste e aie nis aie we wer aaleeiMesieisesere OL,

time and place of service .......... « vankaenasauaecesesme- D2

verification of signature to admission........ isGeiniceswan 30d

defective proof, how cured.......... Dare oaiennaveraste Serie caster ADE

Effect of voluntary appearance. ...........0e.e0 iddsiwawsmecewesew OF

SUBSTITUTED SERVICE OF SUMMONS........--+00 sescccosecccseecs 56-GC4

substitute for personal service in special caseS.......seececceeceeess 06

effect of substituted service........... She Meaharsicaen sien TOL

facts necessary to be shown by affidavit.....scecccosseees OF

affidavit held sufficient.............06. Aare gteces 59
insufficient............0008 ale lalaiale ereieleisie oso 60

form OF alfidavitia.iiassece eeeee ce eoeng Sidieisee writa terete aie 61

How substituted service must be made...........ceccceee eee e ee eeee 61
Papers to be filed; proof of service. ......... cece eceecee core eeeees 62
SERVICE OF SUMMONS BY PUBLICATION...........0006 siesesweoricaaies C4111
Cases in which service of, summons by publication made............ 64
general provisionS..............+e06 sraaeleves sGiisiate'e oreecess 66
UNKNOWN OWDETS... 1... ee reece eccceevcene Mibsnesememwenas OS
SUDCIVISION TWOxaescesesesitee oe  oeweeee a o6te Se Weiseasieanes OS.
Papers upon which order for publication made...... dA ame ae eR ORE 69
statute to be strictly pursued..................00- sineernadne ss 69
sufficiency of evidence to give jurisdiction............. ees 10

the verified complaint................0.00- Sid sissies eva cees 72

the afMdaVIt.siacces oes sees vevesscewinwnwees siaieiee sidisaarecsutha 33
proof, how Madesscscxyeenseesaas ye asses cieties cesseeceeoe TD

by whom made: sxxiceaswmeormiads t2454 60 eee cee ssearwiowcein ~ UE

PELE p53. pide Be ef Qaeweneoneeesan sss oetioe oes seioswace ys WA
place Of takings. cecudaleseenineveaa sauce epee oseicis\e siaveiareuce 7 A
allegations made upon information and belief............. 15

proof of residence..........ceeeeeneeeceeneees savegeemene: 50

proof of due diligence............e cece cece eens Sabie Mie state? UL

when proof sufficient............. seRstatgledse'vece': 18
insufficient....... ehecsuateeatels eesccecccccs Sl

property within the State...........ceseseeeee soesececcce 82

AVOIGING SCLVICE. eves secs i ioe Meee eeowsie ers sinvenseove Od
Order, by whom made.............eeeeeeeee ewer « Hinveseasesa BD
compliance with the statute........... ceneeey coscceccoeosce SD

by whom order made............-..2006 oes ecceevccreccoer: 86

general requisites of the order........+.++0- eee seasiowlena 87
vill CONTENTS.

SERVICE oF SumMONS, ETC., (Continued.) PAGE.
publication of the summons............. simerese wereaiewlaleeine (09
complaint.........cceee eee eee aa 91

personal service without the State............. seers mains 91

deposit of papers in the post-office........... wibwvatulaiamonys 93

service on non-resident infant defendant.........-......64-- 96

When publication to be commenced...........-.ece ee eee eee Heonasar 9G
When service by publication deemed complete.............seeeeeeee 96
computation Of time......... ccc cece cece cece cence ee eeceees 97
commencement of time to ANSWEP..... 2... cece cece eee e eens 98

Service by publication when warrant of attachment is granted....... 99
Papers to be filed; notice to defendant............ cece eee e cence 104
filing PApeTrs........ cece sce sce e eee c nent eee ecetaneearane 105

NOUMCO).i dw cei seaces s eee EIOSwES BNET TLE sehR MES RAE 105

Notice where service is made without State...........sceeeeeeevees 106
Service where party is UNKNOWN.......... cece e eee ewes seein 107
Service by publication in matrimonial actions..................008 108
Proof of service by publication...........eceeeeeeeceeeeereeeeeress 109
Defendant when allowed to defend........... csseceseeccsccceeaes 110
IRREGULAR, DEFECTIVE OR FRAUDULENT SERVICE.....+..- 0002000 111-116
What iS: SUGh Services a srcscsisiaisg eects W Sidtajniarcspiareiets Gre miele 4's wee meaner 111
Amendment of irregularities... 0.0... 0. cece cece cece cece e ween eens 112
Remedy for defective service...... cece cee c cece eee e eer e eet neeeeeee 113
SERVICE OF COMPLAINT........0.0ceeeeeeee sesar aed os overorasatotanns eee+. 116-120
Service of copy complaint or notice with summons................- 116
Copy complaint, when to be served...........eeceeeee seer e eee enes 117
Consequence of failure to serve complaint..............0 secon 119
SERVICE OF NOTICE OF APPEARANCE, ETC........ceeeeceeeee eevee 120-122
Appearance of defendant............. cc cece cece cece eee e cece eens 120
SERVICE OF ANSWER OR DEMURRER..... sg Seeseuarereecere Gib hee woe eaten 123-125
Answer or demurrer, how served...........eceeeeeeeeeeeeeee aiden 123
SERVICE OF PLEADING..........cc cs cecee reece eens coeeeeceeeeees 125-129
When pleading to be served........... sc ceee eee e rece cee eeeseneees 125
When defendant to serve copy answer on co-defendant.............5 127
Service of amended pleading............ ccc ese e ce cee eee eeeeeees 129
SERVICE OF NOTICES OR OTHER PAPERS IN ACTION,.......+ asset 130-156
Personal service Of PapeTS........ cee cce cece sev eecncececeeeeeuees 130
THOUE OF SEFVICEs..i6ed. 56 bc os eae earenere ees Saseaewws ose 132

time of service on attorney ........... iavincled BSrasaschete eters averse 133

Service of papers, where service not personal......sesseeeeereeeess 133
CONTENTS. ix

SERVICE OF PAPERS, ETC., (Continued.) PAGE.
SUbdiVisiON ONC scesaiccnns ests eww eienmean nee geese wy eee 134
Service by Mail... .... cece eee eee cence eee eee e eee renee ees 134
WOW MAME sinescreperersierece civics eG Leisure ww lels Nene pees 1384
who to be served........e cece cece cree eet ereeeceeee 135
deposit in what post-office........... (aaswawedacn 135
when service deemed sufficient..............-.- sees 136

how paper inclosed and directed ............eeeeeeee 13.
prepayment of postage...........eeee sence eens ncedees 139
place of residence............-0eeeeeee pistes taaaaves 140
SUDCIVISION: TWO. seco. alae ROMER SIE Tec oF es See Es eee 140
thYrOG cick menses cee eae tues ees e ey 141
Double time when served through post-office..........seeeeeeeeeee 145
When service to be made on attorney..... 2.0... cece cece cece 146
How service made upon a non-resident party ..........0eeeeeeeeeee 149
Service on non-resident attorneys.......... 0. cece eee eee eee ences 150
Proceedings upon death or disability of attorney...........--.0.eeee 150
Service through branch post-office in New York city.............06. 151
This article not applicable to service of summons, etc.............. 152
Service of notice cof trial: vxscseains es yess ees es Bide eens 152
Proof of service of paper, etc.......... pshsediusbtbe 6 $5 Gad vate co sae Seanciggnengas 154
SERVICE OF MISCELLANEOUS PAPERS....-.--.0---00+ BSH teusaniaae 156-221
Subpeena issued out of a court Of record.............e cece eee 156
Order for taking deposition.......... 6.0 c eee e eee e cent eee eee 159
Order of arrest and other papers........... ee eee cece eee eee eens 161
Injunction order and papers upon which order granted......... 163
Notice of application for money paid into court in partition..... 166
Summons in action by a private person fora penalty or forfeiture 167
State writswr<scics cg vaunmaserraiesgee et eee. a gee eaa ie 167
Writ of habeas corpus......... 600. cee cece eee eee eee 168, 169
Fees to persons not Officers... 1... cee cece eee eee 169
When person conceals himself.............2 0 ccc e eee eee 170
Order for discharge of prisoner..... 2.0.2.0... 2.000 cece 170

Notice of application for peremptory writ of mandamus... 171
~ Alternative writ of mandamus .....................00.8- 172
Notice of filing return to alternative writ of mandamus... 173

Writ of prohibitionyoc ccc ccccccc eens ees cv awuww ceeare 174
Notice of application for writ of certiorari, etc............ 174
Writ Of CértiOrarisssns saver secure ens es acewsuaeennns « 175

Order to show cause in proceedings for insolvent discharge
from his debts sisscctscossniesnecess seed as enews 176
x CONTENTS.

PAGE.
SERVICE OF PAPERS, ETC., (Continued.)
Proof of service of order to show cause.........20.ee0% deimnwehnoe seul
Papers on application for discharge from imprisonment on execution 179
when service cannot be made......... 0... eee e eee eee neon . 180
When Staté 18:3. 6PeditOt occas ceca ne ea hana mate aes eae 181
Precept in summary proceedingS............ 0c... cece eee reece wees 181
when to be served on landlord of bawdy-house............. 184
Proof Of SGPVIGe: OF PRECEDE. oc cseredieraned steve bbs ne eeloeuned Hae . 184
Affidavit and warrant in proceedings to punish fcr a contempt...... 188
Order to show causc in proceedings to punish for a contempt........ 187
Petition and notice in proceeding to discover death of life-tenant.... 189
Order in proceedings to discover death of life-tenant....... begins . 189
Notice of sale in foreclosure by advertisement..................0005 190
service of the notice by mail... 2... cece eee eee eee eee 191
Notice of application for surplus money......-.......e cece ee eee 199
Order and affidavit in supplementary proceedings.................. 192
Warrant of arrest on judgment debtor...) 00... ccc eee ee eee eee e es 194
SERVICE OF PROCESS OF A SURROGATE’S COURT. ... 0.0.00... cece ee 195-207
« Citation in the Stat@is¢.2es45 ssadesmtigews eeeeas we eauariawes oes 195
Substitute for personal service upon a resident.............eceeeeee 198
Citation by publication or without the State...................e ee 199
upon persons UNKNOWN, Ct... 16. cee eee eee 200
contents of order, when and how made...........-..0.000% 200
what time required for delivery of a copy..........eeeee-ee 202
Citation upon a corporation, infant, lunatic, ete............... eee ee 202
Citation in certain cases of infancy or lunacy..........-.. 0.0 eee ee 203
Publication of citation, ete .ss-.ccscviniact seek ee vee ey's maeweretere & 204
Proof of service of citation, subpoena, etc...... 0.6... cece eee eee ee 205
Papers upon attorney appearing in Surrogate’s Courts.............. 207
SERVICE OF SUMMONS, ETC., IN JUSTICES’S COURTS..... 0.00.02 0005 208-220
Service of Summons cadceccasa ca seoose aceon aaesseyeyssaase 208
who may serve SUMMONS..... 0.0.0... 0 .cceeeeseeeeeeeeeenes 208
who to: béiserved ciiccaiuvec ev eine einer aii eienee srs ewe 209
wWhereservice to be Maden os sis ciseiwcenonmecs si ceeasiess eae 209
MAMMEL OF SERVICE Miia acrasinisy-wialy ex see swEw ESE Lace wae wed ees 210
Service of summons upon acorporation.......00.00 02 eee eee sees 211
domestic corporation, ete......... 62... 0-5 et
‘i on an express company...........+.--- whe 218

and warrant of attachment......e.eeeseeeee 213
CONTENTS.

SERVICE OF Suymons (Continued.)

XL

Return. OF SUMMONS siasiosiisasada reas eones oe eeeank sedan hs 215
Service of subpcena from Justice’s Court..........0.... esata ca sesncsgs 216
Service of notice of appeal upon Justice... 2... cee eee ee eee ee eee 218
UPON TESpONeNt..w... oe. pedre ssedaceaunes 218

Summary of Miscellaneous Sections............0. eee e eee ee eee ence ees 221
HOYINS a 0 idin'd eahlaeiede den saad Gadaamedarweugaen Saye pet Me eAR es, cicreloewn tet:

ETN Coe aie eo celaica cic were cca ica ted oye NaravNaiaa aes sank gelesen arene armueiermewaseERS Maan
xii

TABLE OF CASES CITED.

A
YEAR, PAGE.
1885 Abbott v. Curran..........eee eee 98 N. Y. 665........ jeden nea 68
1859 Abrahams v. Mitchell........... 8 Abb. 123............65- 93, 98, 123
1887 Adams v. Adams...........0..4. 9 At. Rep. 100.........0ee eee eee 6
1887 Adams v. Adams.............04- 11 E, Rep. 128...........00006- 6
1880 Adams v. Nellis............ee0 59 How. Pr. 385.........00eeeee 149
1853. Adams v. Town............0565. SiCal, 247 e-cc62 si dase ey 155
1874 Adrience v. Lagrave............. 15 Abb. N.S. 275............ 11, 12
1856 Akin v. A. N. R. R. Co.......... 14 How. Pr. 387.........00006 11, 153
1881 Alb’y S. Inst. v. Burdick........ BT Ne Ys 4G crease oes s 128
1858 Alderson v. Bell................- 9 Cal. Qos Setiiiinebermaseea. ar 53
1854 Allen v. Allen ................65 11 HOW. Pie 29 Tie ccsiecssacceee eee 68
1872 Allen v. Malcolm................ 12 Abb. N.S. 338........ 16, 17, 56, 78
1878 Allen v. Meyer.............2-005 BIN: Mee Vistheacncty steer eee ees 100
18s8 Allen v. Caspari ............-.-- 14 At. Rep. 12................ 16
1848 Anderson v. Johnson............ PSandt, T1Sio. ccukwne kee eeenes 217
1887 Andrews v. Borland............. 10 N. Y. State R. 397....... 6... 78
1825 Andrews v. Herriot.............. 4 Cow. 508, 524,n..........006. 60
1888 Andrews v. Lembeck............ 18 N. E. Rep. 483..........0.4. 21
1884 Andrews v. Snyder.............. Gr Ci¥. PrO. B88. cc 2.5 -osee cece 219
1888 Andrews v. Townshend.......... 16 N. Y. State R. 876........... 52
1879 Angell v. Lawton................ AON. We S40 vas arisav sae doud 68
1803 Anonymous .............. eee eee A. CAIs TB saearntuecd 24.6:5- 000.9 Baie yeas 141
1836 AnonyMouS,.............ee eee ee 18 Wend. 578...............65- 142
1838 Anonymous....... shaving Rigpeiee ee tare LO Wend. Slawisssaceeae et dees 139
1841 Anonymous........ oy apace st nec 20 WENA, OT fic asic nannies iiss 188, 155
1841. Anonymous........... eyauacaschee esol, Hill, 21%i a 6405406 135, 138, 189, 155
1848 Anonymous............. 0.22 eee 1 Code R. 102..............0.48- 91
1848 Anonymous.....................5 How. Pr. 293...........6. 00 91
1849 Anonymous............ ee cere eee 4 How. Pr. 112...........-.... 8
1883 Argall v. Bachrach.............. 18 W’k Dig. 267............-. 76, 77
1856 Arken v. Q. R., ete., Comp...... GiCal 186) gc atin tak Mate naeddiess 28
1864 Artisans’ B’k v. Park B’k........ 41) Bar. 899 wigs cgaecccnenesctiete 40

1877

Asinari v. Volkening............ 2 Abb. N.C. 454..... 00.00.06. 142
xiv

TABLE OF CASES CITED.

YEAR. PAGE.
1880 At. ete. Tel. Co. v. B. etc. R. R. Co.46 Super. Ct. 408...........005 12, 36
1882 At. etc. Tel. Co. v. B. etc. R. R. Co.87 N. Y. 358......-...08. o++2012, 36
1879 Att’y-Gen. v. G. M. L. Ins. Co...77 N. Y. 275. .... cece ee eeceee 56
1866 Ayres v. Western R. R. Co....... 48 Barb, 182............4 java: d22
B.

1804 Bachelor v. Bachelor............ To MaS8., 256 sic eee ees ou ees 90
1861 Bacon v. Hart.............. séasel Black: (U.S.) o8.0s2c0e5.c00ss 131
1854 Bain v. Globe Ins. Co............ 9 How, Pr. 448 wwscscacacccs see's 31
1853 Baker v. Curtiss ................ 7 How: Pri 478: «eee ceex 119, 120, 126
1869 Baker vy. Stephens............... 10 ADD. Ni Ss Ve cauwicsareeiasaney 58, 61
1873 Baker v. Wales................6 45 Hows Pt. 13T scisesdeades cess 11
1873 Baker v. Wales ............0.56. 14 Abbi N.S: O8li ves ce sivng dees 12
1860 Ballard v. Bancroft............ Ol GeO; 108 sss ee doeds ed ae 11
1864 Ballard v. Burrows.............. 2 RODE. QUG istiwintarscerveae ciereareaes 16
1854 B’k of Com. v. R. & W. R. R. Co.10 How. Pr. 1......... 30, 38, 40, 41
1875 B’k of Havana v. Moore.........5 Hum, 624.2... ccceeesccerene 163
1877 Barber v. Goodell................ 56: How. Pr. B64 6.60 c0c8 ettvni 49
1863 Barker v. Cook ...........00000e LGA DD: 83i5.2ccceiccdoiekeasrns 162, 163
1863 Barker v. Cook.............0+.-. 40 Barb. 254,............. . 162, 163
1863 Barker v. Cook.................. 25 How. Pr. 190....... --..-162, 163
1857 Barker v. Johnson.............. LOND ABS bo 5 ok d.d febd A ladomesebivaiens 193
1866 Barnard v. Heydrick............ 2 Abb. N.S. 47.......... 74, 87, 105
1866 Barnard v. Heydrick ............ 49: BaTDs. 62s i ccsci sieeeies 44% 74, 88, 105
1866 Barnard v. Heydrick............ 02 How. Pri. Nescaw aces 74, 88, 105
1850 Barnes v. Harris................ AN. Y.. 304. cc2csceee se caceaees 214
1877 Barnes v. M. & N. W. R. R. Co..12 Hun, 126..................37, 38
1875: Barnett: 0. C. & L. H. R. R: Co-..4 Hun, 116... 222s siseecvex cans 35
1888 Barney v. Vigoureaux........... I Paez Ri doo ig seusencrees 2 ecte ees 45
1881 Baron v. Biaren.................3 Law Bull. 50................. 103
1886 Barron v. 8. B.S. M. Co........ 18 Abb: Ny Cy Ba 2 isis cnerecscaissig ag 103
1856 Bates v. New Orleans R. R. Co...4 Abb. 72 ......... 0000060202039, 3S
1856 Bates v. New Orleans R. R. Co...13 How. Pr. 516......... -00, 38, 114
1861 Bates v. Reynolds............... T BOSWwil685 i: 2... 2a passwe co winwgens 17
1799 Bates v. Williams............... 1 Johns. Cas. 30.........0-000-- 180
1882 Bayard v. Scanlon...... SSeitentew 1 City Ct. R. 487........ seen gt
1876 Beach v. Bainbridge ............ t Hun, (Sle cca gen iaeeoee 183, 186
1855 Beach v. Gregory...........0.005 DIA DD ys 208s s-2.eeavasuues waernaness - 149
1852 Becker v. Hager .............00 8 HO Ws PricO8sisioassittac.alere 148, 164
1849 Beekman v. Cutler...........55 wd COMER 51. ceed cae asidiansars save 9, 46
1825 Bell v. Vincent............0005 sal De i Ri 238 ves eousaediees ec ws 10
1882 Bellamy v. Guhl ........... ¢i+ 2-62; How. Pr. 460.3 cac0cscceuows. 6
1880 Belmont v. Cornen............65 SOON. Ws 200s oe ss ves 70, 71, 75, 77, SO
1809 Bennett v. Fuller..............0. 4 Johns, 496... .4<.45s00 seavenene 2
1850 Bennett v. Delicker......... onvesd COdG Re 11 Ta ccsccecices aiarsieaversiars 118
1868 Benninghoff vy. Oswell...... ore ane BOW. PR B60 icasacnseswage 12
1888 Berford v. N. Y. Iron Mine......55 Supr. Ct, 516...-...... 0.00.
YEAR.
1881
1881
1857
1857
1883
1856
1886
1886
1886
1886
1868
1884
1845
1874
1874
1881
1881
1857
1881
1882
1882
1882
1877
1748
1857
1872
1850
1862
1819
1856
1847
1868
1887
1887
1887
1872
1845
1845
1874
1845
1875
1870
1876
1884
1888
1888
1889
1889

TABLE OF CASES CITED. XV

PAGE
Bergen v. Wyckoff.............. 1. Ci¥s, PRO. Thecsuece naamialaegesteliasn 68
Bergen v. Wyckoff............4. SLING 600 siaseaainiese e800? 68
Berrian v. M. S0..........00008 of ADD. Abd sais aoe nie daeveneainae 29
Berrian v. M. So........ eee eee 6 Duer. 682.......0 ccc re eercee 29
Betzemann v. Brooks............ OL, FAT 2 teen 35.44 aces eioseveleisince oteom 100
Bierce v. Smith ..............04. DAO AAT ccssipintateiniaacne vais eee 14
Billinge v, Pickert............. 89 Bun, S08: 25 seek 8 xacmate wenn 177
Billinge v. Pickert .............. IN. Y. State R. 70............. 177
Billinge v. Pickert.............. 9 Civs Br. TO8 vi... sascannce dems 177
Billinge v. Pickert.............. 23 W’k Dig. 403..........000 ee 117
Billings v. Carver.......-....005 54 Barbs: 40.6.0 ccccwwsicresiane acces 194
Bingham v. Bingham............3 How. N.S. 166............... 81
Birdsall v. Taylor................ dL Hows Pre SO casi ceadasccss 138
Bixby oe SMiths «i. cewaiwiciweasars 3 Hun, 60.....6.2.02008 71, 76, 81, 87
Bixby v. Smith................. DDG CL D1IGs are cwasveiaivaiyene ae vel
Blossom v. Estes......... 0.2.66 IZ WE DIg.. TST cco e ani s 100, 101
Blossom v. Estes..............6. SAIN oO Aisne: ssh ictsre oni alata 100, 101
Board v. Board...........2..000, A ADD, DUB was neccieaiae ha astcte bare 206
Board of Com’rs v. Sitzen....... 1 City Ct. R. 874...........000. 2
Boerum v. Betts..............068 LDeMmy, 4A s io 8s narediowiaelarcraove 196
Bogart v. Swezey........eeee eens 14 W’k Dig. 109................ 57
Bogart v. Swezey............006 26 Hun, 464.......... 57, 63, 86, 104
Bonnell v. R. W. & O. R. R. Co. .12 Hun, 218..................04 19
Bowles v. Johnson ............-. Wes BY, BO esate: scsasiacisons sacacseseortnies 218
Boyland v. Boyland...... . ns URRY Te le Bo Ge ph a viakedu oa memmedees 135
Brett v. Brown..............2005 13 Abb. N.S. 295.....20, 21, 54, 122
Brewster v. M. C. R. R. Co...... 5 How: Pr. 18B.sseacwieeecncaes 30
Brick’s' Estate@sc0sscc2ceesieacds 15 ADD: 12:24 02s ssdecenenbeincds 196
Bridgeport B’k v. Sherwood...... 16 Johns: 48. s oesssdaowwecnceas 147
Brien wv. Caseyi.s.icsec cas cacses 2 ADD: 416i 005 crsateweuneaniees 50
Brisbane v. Peabody............ 3 How. Pri, 109. se cscucue canes 69, 89
Brod v. Heymann............... 3 Abb. N. 8. 396.....97, 98, 112, 123
Brooke v. Saylor..............6- ON. Y. State R. 68............ 85, 88
Brooke v. Saylor..... 0.22... 2T Wk Digs Qecees eevesa cows 86, 88
Brooke v. Saylor............0006 44 Hun, 555............... 86, 88, 93
Brooklyn T. Co. v. Bulmer...... 49 N. Y. 84........16, 92, 97, 98, 124
Bross v. Nicholson.............. 1 How: Pro do8e ss <snseteee weas 139
Brown v. Briggs........... na Salas V HOWs Pr lO2ecceewoce nae 187
Brown v. Brown..........00006+ Bo Ne Ye 60Oie ¢ 4 ave cescndrw seni 111
Brown v. Cook.........-..4. seaee HOWs Pre dss coos cand Howe amu 156
Brown v. Marigold.............. 50 How. Pr. 252.............4.. 52
Brown v. Nichols......-....2+055 AON. Vi 260 ss0cecetessantacnwns 56
Browning v. Abrams............ OL HOWE PM iOiie4 oostevo cake 11
Bryan v. Kennett.............05- 113) Us Si Ab. cia co naees nee cess 67
Bryan v. University Pub. Co..... 15 Civ. Pro. 74............ 67, 76, 83
Bryan v. University Pub. Co..... 15.N. Y. State R. 903..... 67, 76, 83
Bryan v. University Pub. Co.....21 N. Y. State R. 21....... 67, 76, 83
Bryan v. University Pub. Co,....112 N. Y¥, 382..........005 67, 76, 88
Xvi

YEAR,
1871

1849
1878
1888
1888
1858
1882
1853
1879
1856

1841
1845
1845
1858
1879
1880
1881
1850
1854
1877
1858
1882
1882
1882
1882
1834
1871
1878
1837
1852
1866
1885
1885
1884
1854
1887
1887
1887
1883
1888
1863
1887
1878
1878

TABLE OF CASES CITED.

B.&S. L. R. R. Co. v. Sup’rs PAGE.

IBGE C0; o csarinngign usa vee aloes x 48 N. Y. 100........000- adeno AS
Buckle v. Eckhart............... SN, YABB aie suassmerenanenees 41
Bwel0: DUK. ccccccsisisis'g ve og se einiss 88 Mich. 167........2.--eeeeeee 209
Buford v. N. Y. Mie... .e see eee 55 Super. Ct. 516....... 85, 92, 93, 94
Buford v. N. Y. M...........0065 18 N. Y. State R. 400...85, 92, 93, 94
Bulkley v. Bulkley............... 6 Abb. 307........-.+--6e 10, 50, 115
Bullymore v. Seward ............ 15 W’k Dig. 283.............06- 128
Bunce v. Reed ....-... eee e ee eee 16 Barb. 350..........00000 109, 191
Burk v. Ayers. .......0. eee eee eee 19 Hun, 24.......... secvmewss 116
Burroughs v. Reiger............. 12 How. Pr. 171.......000 scene 47

C.

Cameron v. McDonald........... 1 Hill, 512: 5 aicssssssws scenes, 186
Campbell v. Self........-..2..00- 2 How. Pr. 35........... Saas ae - 50
Campbell v. Spencer. ........... 1 How. Pr. 199. cess eee: 141, 155
Campbell v. St. L. R. R. Co...... 18 Hows, Pre 41 Qos sserea narciee ss 40
Campbell v. Taylor.............. OW EDIg. Ts. taseseseseasns 71, 87
Carleton v. Carleton............ 23 Hun, 25)... esses 58, 70, 82
Carleton v. Carleton............ SONG Ya BLS becsvrecewie 58, 70, 75, 77, 82
Carpenter v. Spooner........... 2 Sand f. VG iiss cise ta geval 11, 12
Carpenter v. Stilwell............ AGT ING Mose OMe iticrsticins 4 dtays'scahy eee 9-2 2°3 3, 4
Carter v. Youngs............... 42 Super. Ct. 169............... 59
Case v. Colston...............08 L.Met@. T4666. cece es sites neers c 64
Catlin v. Moss.................. 2:Civ. Pro. 2lesics sees seeeee: 54, 101
Catlin v. MOSS.........0.0.e000. 1S Wik Digs, 14 cn dcwusaetteateucs 101
Catlin v. Ricketts............... 27 Hula, 243) 5 20 seieecmasrexences b+
Catlin v. Ricketts............... OLN. Ye 668). sxanawasiaedenaniis 54
Central B’k v. Wright... ...... 12 Wend. 190................ -. 49
Central B’k of W. Co. v. Alden. 41 How. Pr. 102................ 154
Chadwick v. Chase............. 5 W’K Dig. 589............ 16, 23, 55
Chaffee v. Jones................ 19 Pick. 260.002... ......e cece, 23
Chalmers v. Melville............ 1E. D. Smith, 502............. 217
Chalmers v. Wright............ 5 Robt. 713...... Lacan eis 156
Chase v. Lawson............... 86 Hun, 221........ 71, 75, 77, 78, 79
Chase v. Lawson..............4 21 W’k Dig. 572........ 71, 75, 78, 79
Chautauqua Co. B’k v. Risley... 6 Hill, 875..............0000--. 138
Chemung Co. B’k v. Judson.... 10 How. Pr. 183................ 144
Childs v. Harris M. Co.......... 104 N.Y: 480. csscweawesianess 38, 39
Chubback v. Cleveland......... 387 Minn. 466............ Bisieisezas'h 11
Chubback v. Cleveland......... 385 N. W. Rep. 362.............. 11
Clady v. Wood..........00.0005 66 TOW. RY Avusyseee sexes sade 125
Claflin v. DuBois...........0006 15 N. Y. State R. 963........... 142
Clapp v. Graves............2005 QBN Vie A2Qiencictiy tees cae 2 ved 111
Clare v. Lockwood...... reer 16 N. Y. State R. 739........... 57
Clark v. Bininger............... 43 Super. Ct. 126.............. 188
Clark v. Bininger......... eee TON. Y. 344......... seeeeeecess 188
YEAR.

1880
1880
1829
1887
1834
1878
1874
1882
1851
1872
1875
1875
1885
1885
1884
1878
1853
1854
1860
18383
1862

1862

1855
1860
1861
1861
1860
1859
1811
1862
1846
1846
1829
1886
1882
1854
1846
1886
1852
1850
1850
1887
1885
1885
1885
1882

TABLE OF CASES CITED. Xvii

PAGE.
Clark v. Boreel.........0..0060+-21 Hun, 594.,....0eeeeeeees . 67, 82
Clark v. Boreel.............0204. 10 WE Dig. 340 sisisssceccess es 67
Clark vy. Grant..........eeee eee 2 Wend. 257........ cc cece eeeee 23
Clark vy. Lockwood.............. 13 Civs Pro: 2i8ssiwescese sec cee. 57
Clark v. McFarland.............. 10 Wend. 634............. 2. eee 1389
Clayton v. Clayton............... 4 CO; 410. iiss covssaeewiaeeeds 73
Clews v. R. R. 1. & S. L. R...... 49 How. Pr. 117........... seese, 14
Clifton v. Brown...............- 27 HUD, 23) jess satdascaeecnee 154
Coddington v. Webb............. 4 Sandf: 689..0ccccceecssees 164, 165
Coffee v. Gates........ cece eee eee 28 AYKy 4Siaieewes vec sae ne done 48
Coffin v. C. N. P. C. Co.......... 4 AUN; Glo .cees, na sescca eee ners 81
Coffin v. C. N. P. C. Co.......... OT Baths 82 Taswe ss see cee enads 81
Coffin v. Lester......... acaba 96 Hun, 347.5 .ssicscceeieeneaes 87
Coffin v. Lester............eeeeee 22 Wilk Digs Tez cs caeeesecsaces 87
Cohn v. Kaufman............066- Dai. Reg. Apr. 80.......-...... 22
Cohn v. Kember..... Lewes e sees 47 Cal. Idd cccsseawccnaw as 57, 70, 72
Col. Ins. Co. v. Force...........6. 8 How. Pr. 358.............6. 49, 50
Collins v, Campfield.............. 9 How. Pr. 519............ 59, 60, 61
Collins v. Ryan..........0.eeee ee 32: Barb, 647... ci sccsvviduweaies 58
Columbia T. Co. v. Haywood....10 Wend. 422................0. 209
Conn. Mut. L. A. Co.v. C. C. &

G. Ry Re COsai 3 csaese xs eeteeds 29. HOW. Prel80s ccawcascnescrss. 41
Conn. Mut. L. A. Co. v. C. C. &

CO. Ree Cosesss cceesxisaaxekex 41. Barbs Wiss ccwseestiewesevay is 41
Cooley & K. v. Lawrence & L....12 How. Pr. 185................ 16
Cook v. Farmer......0-..e eee eens V1 ADD: 400s vse ise samninwe esis 76, 82
Cook v. Farmer........-.seeseeee 12 Abb. 850% «<5 ce 20080 70, 76, 82, 113
Cooke; Farnatisesscc.220se22a00% 21 How. Pr. 287....16, 70, 76, 87, 113
Cook v. Farren.....--.eeeeee eens 34 Barb. 95........ 70, 76, 82, 87, 113
Cook v. Kelsey.......sseeeeeeeee VON) Ws Al oeieeseace se ex saeacss 91
Cooper v. Carr......seeeceeeees 8 Johns. 360........0ece eee ee 133
Cooper v. Shaver..........ee0-0- AL Barb, 15 Taesse seve ks tasednces 116
Cornell v. Moulton............-- ULICU DAs daciendect ak des trercsssierdents 209
Corning v. Gilman..........---- 1 Barb. Ch. 649................ 136
Corning v. Pray...... sesene ot ees 2 Wend. 626............eeee eee 142
Cossitt v. Winchell............+5 BOCHUM, 489 cicnsnesecoee vee 100, 101
Couch v. Mulhane.............+- 63 How. Pr. 79.........-.-..55, 121
Courter v. McNamara..... mnGeak 9 How: Pris 250. vce sinciesecanies 162
Courtney v. Baker.............. BiDeny Ql eaccss os.5% eta rea sien ine 158
Cowen. v. Ferguson........sseees 18 Abb. N. C. 241.........0.06 160
Crippen v. Culver............66- 13) Barby 498. discs can cacomesee 11
Crittenden v. Adams............5 How. Pr. 310............84 135, 136
Crittenden v. Adams............ PCode Ni 'S, Ql sacs va 0d ecies 131
Crook v. Crook......... an ouidiars 12 N. Y. State R. 663............ 141
Crosby v. Thedford......... eee 21 WK Digs 544... vewssionenns 86
Crosby v. Thedford.............- 4 Civ. Pro. 245 .c005 aseseeses . 86
Crosby v. Thedford.............. 13 Daly, Wo2eccuwsster en sae anne 86
Crowley v. R. E. S. Co..........10 Daly 409... ... cece cee eee ee 115
XVili

TABLE OF CASES CITED.

YEAR, PAGE.
1882 Crowley v. R. E. S. Co.......--- 15 W’k Dig. 64.......-.00 eee eee 115
1882 Crowley v. R. E. 8. Co.......... 2 Civ. Pro. 174... .... pee atiee 115
1858 Cumberland Coal Co. v. Sherman.8 Abb, 243..........++. 17, 37, 39, 41
1859 Cumberland Coal Co, v. Sherman.30 Barb. 165.........-+.0eeeeee 39
1859 Cumberland Coal Co. v. Sherman.20 How. Pr. 62.......++-.+es0ee 37
1857 Cusson v. Whalon.............-. 5 Flow Pre B0ote00:6 sachs 2 watcewss . 145
D.
1868 Daniels v. Rogers..........-...- «96 How: Pr, 280. wicssccesee cians 219
1861 Davis v. Duffie................ £18 Abs B00 2:2 necen wean swans 19
1867 Davis v. Duffie.................. 4 ADD. Ne St ABs vary ah 19
1867 Davis v. Duffie............-..... 3 Keyes. 6064 a5 canteens cei. 19
1867 Davis v. Duffie.............0..4. S Bosw. G19 cic oe dsnes dane zee 19
1839 Davis v. Lovell.................. T Dow. Pr. Cas. 178............ 157
1853 Davis vy. Mayor..............065 el DWE S Ab Mccain niee nel vecetvns 164, 165
1862 Davison v. Baker................ 24 How. Pr. 39.2.2... . eee eee 9, 112
1850 Dayton v. McIntyre.............. 5 HOW. Prallicczcadwea accede 154
1870 De Bemer v. Drew.............. 39: HOW. PP. AB on ccc esac es 34
1886 Denman v. McGuire............ sOL ING Ye, 16M cagaieae soteeen 3 78
1886 Denman v. McGuire............. 23 WE DIG. (5. se8 essen eee 78
1881 Derham v. Lee................6 47 Super. Ct. 174............05. 128
1881, Dethani %. Leenicccee ceases -60 How. Pr. 334.... 2.2.2.2... 128
1881 Derham v. Lee................46 11 W’k Dig. 449............... 128
1882 Derham v. Lee.................. ST Ns Vo D994 sé egecec cede’ 128
1882 Derham v. Lee.................- 1A WE Digs 15.20 ce0s cave arse 128
1856 Dew v. Cunningham............ 28 Ala. AGG. sccee se ¥ ee ese cies’ 1
1861 Dexheimerv. Hamburger........ Dai. Reg. May 6, 1887.......... 6
1854 Diefendorf v. House,............ 9! Hows Pre 243 a foe v es wilee avoucas 148
1855 Dolev. Manley..............-... Tl Bows Pit Tosa neumadds den 51
1854 Donadi v. Mut. Ins. Co.......... 2H. Ds Smith, $19... cass 205 vee 32
1880 Donnell v. Williams............. 2d. Tiny 21 ga wines eas 102
1880 Donnell v. Williams........... eOO TH OWS, Pty OSie sxc vcsawss Sas 102
1880 Donnell v. Williams............. TOW Digs WO baads seca seems 102
1880 Donnelly v. West.............06. O6:HOW: Pr: 4300 seevnant ens 71, $1
1852 Dorlan v. Lewis...............4. WOW y PROT 2 a citgiaaddacrcuientvee 145
1859 Doty v. M. C. R. R. Co.......... 6 ABs BY peanencrenice cranes 29
1879 Douglass v. Haberstro........... 8 Abb. N. C. 230........... 55, 121
1879 Douglass v. Haberstro...........58 How. Pr. 276..............55, 121
1858 Dows v. McGlymn.............65 DQ WU V4 eaves 44.64% 34 Bohemians e 208
1858 Dows v. McGlynn.............-- 6 ADD. 241 ccssee cirgiasecenes 208
1864 Drury v. Russell................27 How. Pr. 180..........0..0.. 132
1887 Duche v. Voisin..............5. 18 Abb. N. C. 358.............. 99
1849 Dudley v. Hubbard.............. 2 Code R. 70........ sasegesee te 126
1857 Duell v. Rust............. sees 24 Barb. 488............000. 182, 185
1849 Duffy v. Morgan..............6 2 Sandf. 631.......... seco veges 220
1881 Dunford v. Weaver..........0005 84.N. Y. 445........ Mrawidaw ncn? 8.
1880 Dunford v. Weaver........eseeee 21 Hun, 349............ witewe Os
YEAR.

1889
1834
1881
1888
1888
1865
1852

1854
1872
1877
1855
1855
1881
1882
1861
1864
1878
1849
1880
1870
1880
1862
1850
1850
1864
1877

1849
1887
1860
1859
1859
1881
1888
1811
1887
1887
1887
1862
1822
1875
1888
1860

TABLE OF CASES CITED. xix

PAGE

Dunham ». Cressy............66 21 N. Y. State R. 266........... 112
Dunn v. Dunn...........2...65- A PAIGE, 425, wichaaasanaseaes ss 16
Dusenbury v. Fisher............ 47 Super. Ct. 482.............6. 128
Duval v. Busch...........0+-05, 13.N. Y. State R. 752 .......... 143
Dit¥al Go BUSeh wie ecsesse eee ssce cs 21 Abb. N.C. 214..........04.. 143
Dwight v. Phillips.............. 48 Barb. 116.... ........ Suet 191
Dykers v. Woodard... .........5. 1 How. Pr. 318........ jdaesenae 98

E.

Earll v. Chapman............6-- 3 E. D. Smith, 216....8, 133, 219, 220
Easterbrook v. Rasterbrook...... 64 Barbs 420 o..16 escenario 73, 83, 87
Easton v. Malavez............006 MU DANY VAT aaa es waceece seid sear 8 6s 58 60
Eckerson v. Vollmer............ AO We PP ADs aeiacd Ssatneedtareon’ 20
Edmondston v. McLoud......... 19 Barb. 361........ 6 cece eens 165
Edwards v. Downs............6 IZ WE Dig. Olio 2st cde 128
Edwards v. Woodruff............ ON: Ni c89G oc ctecesngean cities 129
Egbert v. Watson............... 21 How. Pr. 429.........5..04- 214
Elliott ». Kennedy........ .....26 How. Pr. 422............005 137
Emerson v. A. & O. L. R. R. Co.13 Hun, 150.........- ...31, 32, 113
Engs v. Overing............-.65 U:Codé Ri TQsc00 pussy cesses 118
Ervin v. O. 8. M. Co............ 22 Hun; 598 vcs asseses tase e ses 29, 36
Evans v. Lichtenstein........... 9 Abb. N. 8. 141 e300 ceeeesvee 145
Everson v. Johnson............. 22 Mun; Tb .s08 veces es ssue sees 90
Hyerts 0. Evertsis:.cccsese2 cca 62: Barb. 517 ci ecsisssesaeceenas 206
Evertson v. Thomas............- 5 Hows Pri 45. css cece su svensn 15, 87
Evertson v. Thomas............. 3 Code Ry As ves sais See iesasl ass 5
Ewing v. Johnson.............4+ 84 How. Pr. 202.........6008 ... 166
Ex parte Schoelenberger......... 96 U.S. 369......... ishgedialstanne'a’e 42,
F.

Falconer v. Ucoppell ........... 2 Code Re T1ssces'ecasaanicyaxae 143
Farjeon v. Grant...........05055 6N. Y. State R. 809............ 119
Farnham v. Hildreth............ 32 BarbuQyl osscancccy. sexaress 113
Farqueharson v. Kimball........ 9 Abb: 380 Nissi secsetsascecess 193
Farqueharson v. Kimball.......- 18 How: Pr. 233265 osscissssases 193
Feickert v. Freisen.............. 1 City Ct. Ri 869tcdcccauss sev ec 187
Feitner v. Hoeger......... 0... 15 N. Y. State R. 3877 .......... 20
Fenton v. Garlick.............-5 8 Johns: 194 .ccscscsecsiwesiees 66
Ferris v. Plummer ............-- 46 An; (b1D is sais ees tiewinss se 57
Ferris v. Plummer ............-. 12 N. Y. State R. 642........... 57
Ferris v. Plummer.... ... saeees 18 Ciws. Pro. 880 .icc cae sc seas s 57
Ferris v. Soley.........000ssecee 23 How. Pr. 422.........0ceeee: 119
Field @s Parks: ccscceveenacave res 20 Johns. 140..............005- 13
Filkins v. O’Sullivan........... SOT, 24s wists ciessaecs gceee ees 2
First Nat. B’k v. Ames.......... 39 N. W. Rep. 308.........-- 005 21
Fiske v. Anderson ........... sov88 Barb. Ts. ccs ssess ee 67, 70, 88, 93
xx

YEAR.

1860
1859
1859
1867
1851
1856
1869
1869
1866
1842
1887
1877
1867
1887

1875
1876
1814
1880
1874
1847
1887
1879
1869
1875
1849
1879
1883
1880
1805
1831
1844
1874
1882
1838
1880
1856
1878
1866
1881
1883
1887
1853
1880
1880
1878

TABLE OF CASES CITED.

PAGE.
Fiske v. Anderson ......... seee 12 Abb. 8....... 15, 66, 67, 70, $8, 93
F. L. & T. Co. v. Dickson.......- 17 Hows. Pri ATiscccswsceeeay 3, 116
F. L. & T. Co. v. Dickson....... 9 ADD. 61 asssds see ceenres 3, 48, 116
Flynn v. Bailey...... ieee eye 50 Barbs "T3vesaseaenaivees oseess 147
Flynn v. Hudson R. R. Co.......- 6 How: Pr: 608 .0i...000¢04 ssaee 30
Foot: 0. Harris. isi vivias ace snces 2 Abb. 454...... 59, 60, 61, 62, 69, 81
Foot v. Lathrop...........ee eee D8 Bards [88aexmccaee oes ens sae 20
Foot v. Lathrop...........02 eee af Nin Yo Ba8nse-sdancwey aise see 20
Forbes v. Hyde............00005 31 Cali, B51 ceasercesw exes 57, 72
Francis v. Sitts..........cererees 2 FN, SO 2isjeiesiieisteeie.g saps’ 9's! 53
Fries: py; COCK esis s o's s eeiewiviee 19 Abb. N. C. 267....,...-.-56- 14
Frisbie v. Young............+0.. TY An 4 Aes 3s ieveraces evsberpiereve 20, 21
Fuchs v. Pohlman............... 2: Daly; 210 vicisiisens cece ce cess 220
Fuller v, Beck®............02065 12 N. Y. State R. 591........... 101

G.

Gaffeney v. Bigelow............. 48 How. Pr. 475....94, 135, 136, 139
Gaffeney v. Bigelow............. 2 Abb. N.C. 311............. 94, 189
Gage v. Goffam........ eee cee eens 11 Mass. 181............ Sue et 5
Gawthrop v. Leary........66..-- DWE DIS V1 Oreo nies Gu ted wees 161
George v. Arthur..............0 2 AUN 406 niente acd ec taeda naa 192
Georgia L. Co. v. Strong......... 2 How. Pr. 346.........-..2.005 144
Ger. Am. B’kv. Champlin.. ... Al Civ, Pro. 452065 cs vecas coc cees 121
Geraty 0: Reidy sciosees2es% sees 1S Ne Nix Ol sdaveceiesie $2 0 a hdoeees 210
Gere v. Gundlach................ Dl Bat by 1svssiaeasdsesce svat 100
Gibbs v. Queen Ins. Co.......... 63 Ne YoV4s sess ccises 384, 35, 36, 38
Gibson v. Murdock............ el Code Re 108 ecscisessecceeuces 1387
Gilbert v. Brown...........2.. O Neb: (vw scanedtecewsss<eees 210
Gillies v. Kreuder .............. TE Dem, 849 .2c0csccsacuseeecaves 188
Gilmore v. Barnett.............. 20, tains 51 Gia a sccrorwi chara citanenten. $ Sve 129
Given 0. Driggs... ccs cece ests S Cals TOO nr weriesint kine aosten aa es 151
Godkin vo. Redgate.............. 1 Crompt. & J. 401............. 75
Goggs v. Huntingtower.......... AD) MB Ke: Wi BODE aaiecoste ss ais's occ 8
Golman v. Monds............... 1 City Ct. Rep. 97.............. 17
Goodwin v. Griffis.......... ore RBOANG, Mc B2O wa nnissersuardietdae ey 179
Goodwin v. West................ CHOe CaP 022 sissies cake des Os 217
Gotendorf v. Goldschmidt....... S38 NG Mod Bacuamacewsseeaa ne 6
Goupfil v. Simonson ............3 Abb. 474.0... 02.0... cee eee 11
Grafton v. Weeks............... EDLY B28 ecccsivass cae ewiniese bag 21
Graham v. Bleakie.............. B} MDA Y ss Bo ciasn casentrdravsesigeeces Waseda 187
Grant: 0. Deans ess swsie'es vs ee eves 4 Law Bulls 18.2.0. nce ceaccaet ss 150
Graves v. Smart..............065 1D MBH D95 5 cccrusisrescsa isis toe eee. 3
Grayv. Smithisecei. ce saaae'e eee 10 N. Y. State R. 866.......... 136
Green v. Bullard................ 8 How, Pri8183200sssssa ans 193, 194
Green v. Squires.............046 20 Hun, 15 esiccwasawenerics 86, 88, 89
Green v. Squires..............4. 9W’k Dig. 382................ 89
Green v. Warren.............4, 14 Hun, 484........... 0.0, 137
YEAR.
1883
1883
1876
1887
1883
1883
1883
1881
1859

1853
1854
1857
1857
1873
1869
1871
1886
1884
1856
1885
1848
1874
1887
1859
1859
1884
1880
1882
1850
1882
1882
1879
1851
1887
1870
1870
1886
1872
1844
1877
1858
1858
1881
1882
1878

TABLE OF CASES CITED. xxi

 

PAGE
Greenbaum v. Dwyer............ 4 Civ. Pro. 276........ececee ees 74
Greenbaum v. Dwyer............ 66 How. Pr. 266................ 82
Greenwich Bank v. DeGroot.....7 Hun, 210......... i GRR ROS 94, 152
Greer v. Young...........0000 ee 23 Reporter, 683.......... ayers a4 22
Gribbon v. Freel................ 93.Ni Vi QBs ckvovssseeneaensass 103
Gribbon v. Freel............... 65 Hows Pr. 278 vicscsesi.easss 103
Gribbon v. Freel..............6. 2 McC. C. Pi 4820.60 ccdsiawess cas 103
Gross: 0. Clark. .iaesi's ees cee ae 1 Civ. Pro. Vics cc ees 132, 141, 144
Gurnee v. Hoxie................ 29 Barb. 547 ...... cece eeeeeeee 153

i H.

Hager v. Danforth.............. 8: HOW: PP 480 sass aiat Mace os 10
Hager v. Danforth.............. 20 Barbs 1Gisssacassesecieuds 10, 157
Haight v. Husted................ A ADD» BS eesdsecss co en asdaa ts 69
Haight v. Husted................ DADs 10 nostesahons ws seas 69
Haight v. Moore..............+- 36 Super. Ct. 294.............6. 142
Hakes v. Shupe............eee0e 27 Towa, 465........... 0.02 e ee 63
Hall o.. Mungerisisdcecescpecsanes Sy ans: 108 esas seamen esnmcieien bs 53
Hall»; Putiames: <5 osesnceeess ss 23 WK Dig; 518226 caw ceemasiesss 151
Hall v. U. 8. Bi COv ccc sesccecnes 31 Hun; 609s 663 ios eancwaesns as 86
Hallett v. Righters.............. 13 How. Pr. 43...67, 69, 98, 112, 115
Hamburger v. Baker...........+- oo: LUN; 409, saccncasuaveswaccas 16
Hammond v. Stewart...........- 1 Strange, 510..2cccccesees sess 217
Handly v. Quick................ AG HOW: Pre 280s eioereead ded 71, $1
Hanley v. Brennan.............- 19: Abb: Ne C. AST. oes eeadee 11, 25
Harlay-v: Ritteti cesses ceecieses 18: Hows, Pr Va Tsccscwevses sea as 20
Harlay v. Ritter.........-..--..-. 9 Abb: 4000: i cseg sacs ie xenees ea 20
Harris? DEPKe@ nex css.eandes a ss's 5 Civ; Pro. 316 sccssuieswsanea sx 73
Harrison v. Clark.............0+5 20: Hun: 40 4b ecxe eve ceauage ses e4 197
Harrison v. Clark... STN: Yo Si asticanartcass salen) 197
Hastings v. Farmer............-- BIN MGs DOC e ieeresedsnioaninla 14, 15, 111
Haswell v. Links...........-.... STN: “We 63 Tce cwislarstarle veo 58, 60
Haswell v. Links...............- 14 W’k Dig. 402............., 58, 60
Heishon v. K. L. Ins. Co........ TT Ns Ve t2 Ok sing i's orth tin emnardia 86
Heller v. Heller.............0055 6 How: Pre. W942 ss scises se slneatsis e
Hemmer v. Wolker............- TON. By (UL) 885 scene eardis cg 6
Henderson v. Stone............- 2 Sweeney, 468. .cc066 cs sieew eee 193
Henderson v. Stone........-..+ 40 How. Pr. 333............0056 193
Henry v. Derby..........6.-000- 11 Civ. Pros 106s x3 ceescieaieeier sles 43
Herbert v. Smith..............6 6 Lans. 494........-.6 cence 98, 116
Herron v. Stokes............604- 6 Its High Wo eersetanda shaoeess 22
Hetzel v. T. S. M. Co............ 4 Abbe Ne CO. dcssicvecawnevenes 29
Hewlett v. Brown.............+- T ADbs biases eves sees 217, 218
Hewlett v. Brown..........-.66- J BOSW.655: 323% si6 Gadwuceenee 218
Hibernia Nat. B’k v. Lacombe. ..84 N. Y. 367.........-. eee eee 40, 41
Hickey uv. Yvelin......... sao tee 4. Law Bull. (sca: visee wwesens 45
Hickox v. Weaver.......- Sas 15 Hun, 81). :cccaccesees euaaie 151
xxii TABLE OF CASES CITED.

 

YEAR. PAGE.
1860 Hicks v. Brennan ............5-- 10 Abb. 304........ Sidseveigeviereraiiiant 158
1803 Hildreth v. Harvey.............- 3 Johns. Cas. 800.......-+5-5+5 151
1844 Hill v. Stocking................. 6 Hill, 314.... 0... cece e eee eee . 182
1877 Hiller v. B. & M. R. RB. R. Co....70 N.Y. 223........6-5- 9, 88, 39, 42
1874 Hochlander v. Hochlander....... 18. Il, C18 ss iciecewace ge vaect arses 64
1864 Hoffman v. Fish....... ........ IB: ADDS Ogiscee ees sc eeeteeees 3s 113
1862 Hoffman v. Rowley. 13 ADD: 890 saccade see ee esaes 151
1888 Hogle v. Hogle.............-.00 17 N. Y. State R. 580.........- 6
1875 Holbrook v. Brennan............ T Dai. Reg. 157 ...-0..2. eee ee ee 4
1851 Holbrook v. Henderson.......... 4 Sand£: 626). 0.22: scee.ccecuees 24
1883 Home Ins. Co. v. Head.......... 80 Hun, 407 vc avacsa ecco eer: 6, 96
1883 Home Ins. Co. v. Head.......... 18 W’k Dig. 229....... 20-000 96
1881 Hood v. Hood ...............66. Bd Nu Mn OOles orb ee vkdewes oes 206
1855 Hornby v. Cramer........ 2.2... 12 How. Pr. 490 ......-...0006- 195
1878 Howe M. Co. v. Pettibone....... MEIN Weal OS creeped ose oes ee 74, 75
1878 Howe M. Co. v. Pettibone....... 12 TRUM, Cd Le siceiessccreasecas 74, 116
1885 Howell v. Manglesdorf.......... 83 Kans. 194........-..-.---00- 16
1884 Howell v. Leavitt................ 95 N Xi 620 sanigss orev daveaass 91
1887 H. 8S. M. Co. v. D. S. M. Co...... 31 Fed. Rep. 294 .......... de Se 42
1886 Hudson v. Kowing.............. 4N. Y. State R. 866 .......... 78, 80
1850 Hulbert v. Hope Mut. Ins. Co....4 How. Pr. 275 ...........0065 16, 77
1840 Hulbert v. Hope Mut. Ins. Co....4 How. Pr. 415 ............... 16, 77
1874 Hunt v. Brennan................ LAs 21830 oeedclsn ¢ 25 525 20s 122
1860 Hunter v. Lester................ 10 Abb. 260..... ove. 2, 48, 111, 114
1860 Hunter v. Lester................ 18 How. Pr. 347....... ...2, 111, 114
1884 Huntley v. Baker. ........ ...... 33 Hun, 580s cvcseewceosaee so es 16
1856 Hurd v. Davis .................. 1S: How: Pre OT 2s saw e<ee es 136, 140
1847 Hurd v. Swan... ..... vases saved Dens 1D: isecsowssaseeacnes 158, 218
1885 Hyatt v. Swivel...-...2......... 52 Super. Ct. Les ecsewaronsed ve 76
1859 Hyatt v. Wagenright............ 18 How. Pr. 248........... 69, 76, 93
I.
1881 Ingersoll v. Mangam............ 24 Hun, 202. 6 cc casas ccuvigesess 6
1881 Ingersoll v. Mangam............ 84 N. Vs 624. csosewsxsesa es 6, 7, 55
1886 In re Bethune.................. 4 Dems B98eesvenndeaaeg sexes es 76
1884: An Te. Canhare cs cies vecartwaudaaves 2 Dem C2 Tewiedanior axeks ened 196
1884 In re Carhart ................... Of How: Pri 2lGvciseg esse eaaees 196
1885 In re Cortwright................ DDEM EAR’ cies eawscehere ce jaa 204
1845 In re Election Law.............. Me UN AOA ee cccernenstian: alcreucars 14, 15
1881 In re Estate of Williams......... 3 Law Bull. 96s... 066.00, vegas 19
1850 In re Gibson ............2....008 5 Eng. (ATK.) Si2ecantyccse eens 53
1845 Imre Glenn.................... TOW Pr 218s bacntniekt eacema 182
1883: In. re Halsey snwieccvsaasiasves’s ISABB N.C, 8d4¢ oie owersec ees 207
1881 . In re Healey... ......-.00c eee Dar Vol ON Les ay.ce inane scaieiha.s aust 21
1881 Inre Healey............... 0.0. 88 Am. Rep. 713 0. s2eiscacoes. SH,
1884 Inre Macauley...............0.. OLN: Ye o1Svanesingex saan coe ee 202

1878 Inre McCunn.................5 D AROCE: DY ws v wwlehwnts va vlna e 2 Be 182
YEAR.

1887
1887
1887
1873
1877
1850
1850
1858

1804
1805
1805
1867
1847
1857
1855
1855
1880
1878
1878
1888
1888
1848
186

1864
1864
1888
1881
1845
1878
1865
1865
1863
1855
1885
1857
1854

1878
1851
1833
1878
1857
1857

TABLE OF CASES CITED. Xxii

PAGE
In re Merritt.......... gtetionnws 5 Dem. 544........-. 0. cece eee 196
In re Rathbun............00005 13 Civ. Pro. 50........ cece eee 186
In re Rathbun................6. 10 N. Y. State R. 268........... 186
In re Rollwagen.......:..+.eee0e 48 How. Pr. 111.......-.ceeeeee 20
In re Sage..... Aenea ha es TOONS -Ys:290 2s eweeuwiseerecares 28
In re Smethurst...............-. 2 Sandie (24 conasicaressaacensdes 188
In re Smethurst..............66- 4 How: Pr: 809sis sss0s weeesees 188
Irving Say. Inst. v. Hardman....17 Abb. 67, n.......eeee eee 68, 77
J.

Jackson v. Gardner........+...- Di Cal 205. ica tie dooce austen a boa eee 155
Jackson v. Giles ......:...20 ee 3 CaiSSs 222 co reetotes Sheen 155
Jackson v. Howd....... shaders 8 Cats W2hia 254 ected idan 44, 156
Jackson v. Sherwood............ 50: Barb. 356... oc cece nine 209, 215
Jacobs v. Hooper......... eee ees We Barn Wisse de sdee dence ete ies 137
Jacobs v. Marshall.............. GB DUSR es: CSO ta eed cccarontpavan erect 122, 144
Jacquerson v. Van Erben........ 2 ABD. BUS. aescearcucanans aioe 90, 113
Jacques v. Greenwood......... AADD. 200025 mses ib aiseses Rie 126
Janiski v. Heidelberg............ 21 Hun, 489....... 0... cece eee 20
Jenkins v. Fahey................ TB NV SOD asic, tiene na ees 67, 91, 92
Jenkins vy. Smith................ 5 Hows Pre LT... weceieseie sé 20, 21, 22
Jerome v. Flagg ..........+-05- 48 HUN SOL wie e's gi os wacieaiores 78
Jerome v. Flagg ............006- 15 N. Y. State R. 827.... ...... 713
Jewell v. Schoten.............55 STEIN 6 Ye. EEL is ids caseioaie imsenaretnt ors 151
Jewell v. Wright..............5- TPAD Dix DD oe itoaa vets dis ensayo ac 40
Jewell v. Wright..............-. 27 HOW, PRASL s esdcaias ao cced gee 40
Jewell v. Wright................ SOUNS Yi 259) acessories eaidiad + 40
Jewitt v. Jewitt... 0.0.0... cece eee 18 N. Y. State R. 238........... 95
Johenning v. Johenning......... 1 Civ. Pro. 144, 145 ............ 91
Johnson v. Anthony.......... .. TOW. PR. VB isc acces ndiea epee is 13

Johnson v. A. T. Co.........00 AD TAT 89% «55.2: ccbiclenatereeateosacensne 115
JOHNSON O- (CASEY? xs seein c ecco: RODt TOs: woe hes Acs eee sinide 164
Johnson v. Casey........6...0005 28 How. Pr. 492..............-. 164
Johnson v. Tuttle............... LEAD DBL iss i son os cehavnerealen 193
Jones v. Derby............0-e0ee 1 Abb. 458..... ails Getnioneaatae tae 60
Jones v. Freeman..............- 22 W’k Dig. 524................ 72
Jones v. U. 8. State Co.......... 16 How. Pr. 129.........0..4. 54, 114
Joyce v. JOYCE... . eee eee ees 5 Cal. 449........... suseeneiaest 49

K.

Kastner v. Durant.............- 1 Baw Bulls ices dee tees J24
Keeler v. Belts........0....eee0e 3 Code Ro. 183... cccacwwaanassen 162
Kellet v. Rathbun.............. 4: Page; 102):2 22a taeade eens 196
Kelley v. Countryman........... 15 HU, Qlecnomiersa wae 100, 103
Kelsey v. Davis...........0.005- LO PLOW Pc O2s asians sniaee aeaios 3 121
Kendall v. Washburn............ 14 How. Pr. 880. .69, 87, 105, 112, 116
XxXiv TABLE OF CASES CITED.

YEAR PAGE.
1884 Kennedy v. N. Y. L. Ins. & T. Co,32 Hun, 35........ asclewee ae eee 80
1884 Kennedy v. N. Y. L. Ins. & T. Co.18 W’k Dig. 568..............- 80
1886 Kennedy v. N. Y. L. Ins. & T. Co.23 W’k Dig. 278.......... «...78, 80
1886 Kennedy v. N. Y. L. Ins. & T. Co.101 N. Y. 489..........0 0000 78, 80
1883 Kenny v. Apgar........-.+.e05-- OB N. Y. 547........0.- wisiseae ste LOG
1873 Kerner v. Leonard.............. 15 Abb. N. S. 96... 0.2.0.0 92, 98
1863 Kerr v. McGuire................ QBN. Y. 453.0... ccc eee eeeeee 131
1873 Kibbe v. Benson...............6. TT Wall. C24. siecnscgce er easels ce 62, 63
1873 Kloepping v. Stellmacher........ PN LOOM. VG ies eavese-gisreiece sare 48
1880 Kneeland v. Martin.......... .. 2 Law Bull, #6........-.4.-06- 122
1859 Knott v. Jarboe..............06- 1 Mete. 504..-... ee cee eee ee eee 3
1883 Krause v. Averill.............-. 4 Civ, Pro. 410i. 4s. ossees ards 122
1883 Krause v. Averill...........00005 66 How. Pr. 97iscsassescevsces 122
L.
1881 Ladd v. T. H.C. & M. Co....... 13° W’K Digs 200.0060 cess 72, 87, 104
1882 La Farge v. Mitchell............ 2 Law Bull. 36.............. 105, 106
1873 Lagrave’s Case.............000 14 Abb. N.S. 344, n........-. 11,12
1869 Lake v. Kels............-..005- 11 Abb. N. S. 37.......... 219, 220
1876 Lamkin v. Starkey.............. Tans AD scnaesncan cc avenwieg sercrsas 21, 22
1886 Lanier v. City B’k of Houston...9 Civ. Pro. 161................ 89
1863 Lansing v. Gulick............... 26: How: Pr: 250 wie s.caewedy wean. 131
1882 Lansing v. Hadsall.............. 26: Han, 619 ses estan cs atte wists 128
1827 Lansing v. McKillup............ TF COM: A1G ses sewn adianarennnns 131
1871 Lathrop v. Heacock............. A TWansy 12s. 24 ta ccraeeeiganmawes 20
1849 Lawler v. S. Mut. Ins.Co........ 2 Code: Rie TIS: 2 ec.cviosiencedinae 136
1881 Lawrence’s Estate.............. 19 Dai. Reg. No. 39............ 196
1855 Layfayette Ins. Co. v. French....18 How. (U. 8.) 404........... 42
1852 Ledyard v. Jones............... ON Mee DOL sa valgeciadet De ree Sih 3
1866 Lefferts v. Harris............... 10 Ab bsiN 9.2 jit 6a tieitse 0% 6 67, $1
1860 Leffingwell vy. Chave............ 19 How. Pr. 54... ..... eee eee 164
1860 Leffingwell v. Chave............ LOPADB AI Bi cman ees cies es 164
1828 Legg v. Stillman........ ....... 2 COW.. AIS ss oovicewometreceesane 215
1889 Lesser v. Williams.............. 23.N. Y. State: R: 396: i. 0.500% 146
1869 Lewis »v. Hartel...............-. 24 Wis: 504s 2 eds -eeeus ceeek eas 45
1869 Lewis'v. Pageisc.c.vcaesasase sso S Abb: Ne 8; 200+ 04s eevee ess 178
1876 Liblong v. K. F. Ins. Co......... 82: Penn, AB icccdswdassiessiowaieds 63
1776 Lightfoot v. Cameron........ vei 2 We Bh WiBac ae cease cei 28
1876 Likens v. McCormick.......... 89 Wis. 313.........4. saunas 135
1850 Litchfield v. Burwell............5 How. Pr. 341..15, 16, 49, 50, 53, 93
1850 Litclifield vy. Burwell............ 1 Code N.S. 42............068 53, 93
1850 Litchfield v. Burwell............ 9N. Y. Leg. Obs. 182.......... 53
1849 Littlefield v, Murin............. 4 How. Pr. 306......... Soscee ei 119
1849 Littlefield v. Murin............. 2 Code Ry 128i cee ccncwendesnes 119
1832 Littlejohn v. Munn........ ogee 8 Paige, WOevwsciniiee se csgcesien 126
1845 Livingston v. McIntyre......... LW How: Pri 258): saawscsees 141, 142
1861 Livingston v. Swift............. 23 HOW. Pre Lesiicsaes sane eau 165

1883 Lockwood v. Brantly...... .+..-.ol Hun, 155..... isdtys ... 68, 79
YEAR
1856
1856
1879
1858
1885
1885
1885
1885
1882
1886
1886
1883
1883

1877
1878
1878
1879
1881
1847
1886
1878
1886
1872
1889
1884
1857
1850
1875
1881
1868
1858
1885
1882
1855
1854
1854
1845
1884
1884
1884
1851
1851
1874
1879
1878

TABLE OF CASES CITED. XXV

PAGE
Loescher v. Nordmeyer.......... 13 How. Pr. 146..... ddie dave diene 220
Loescher v. Nordmeyer.......... 3 Abb. 244............ epacaadsalapaav 220
Loop v. Gould.......-....6..055 IT Hun, 585......062-68- Deets 159
Lord v. Vandenburgh........... 15 How. Pr. 863............ 125, 143
Loring v. Binney.............4+ BB UD; T52 ic oaneanesacee dee. 96, 106
Loring v. Binney................ Si Civ. PLO, LOT. ccecceaavweae oo 106
Loring v. Binney............... 22 Wk. Dig. 500............. 96, 106
Loring v. Binney.............. 3 How. N.S. 120........0008 96, 106
Luther v. Brison................ 4 Law Bull. 91................. 73
Lyddy v. L. I. City............. 2N. Y. State R. 519........ 188, 146
Lyddy v. L. I. City............. 102 Ne Ye. 126 wewescases ... 138, 146
Lyon v. Baxter...........00.05- O64 HOW. Pr. 426.0 osu ces case's 75
Lyon v. Baxter..........-eeeeeee 16 WE. Dig. 340..............0. 716

M.

McCarthy v. McCarthy... ...... 64 How Pre Of ascccauges 5 exes OT
McCarthy v. McCarthy...... ,....55 How. Pr. 418.......... 57, 58, 59
McCarthy v. McCarthy.......... AS AUD, SIMs eed aca eens ctmees 5%, 111
McCarthy v. McCarthy.......... 1G Ey, SAS vs ooee enaetets 58, 59, 61
McCarthy ». McCarthy.......... SAN a Nae JOM Lan ereg-e) peecivenlediaverssd dS
McCarthy v. Noble.............. 5 .N. Y. Leg. Obs. 380.......... 187
McCauley v. Palmer............. OCI: REO. S80B:. pa disucleieidie wd 16, 159
McCool v. Boller..........-.046- DEA 73) sie cielerate rows 91, 93, 94, 95
McCormick v. Paddock.......... 30 N. W. Rep. 602.........0.4 67
McCormick ». Penn. C. R. R. Co.d9 N. ¥. 808..........2. 220. 55, 56
McCracken v. Flanigan......... 24N. Y. State R. 489.......... 80
MeCully: 2. Helletiscscccccestas 66 How. Pr. 468...72, 88, 92, 93, 106
McDermott v. Board of Police....5 Abb, 422............00..2 0005 149
McGown v. Leavenworth...... 2K. D. Smith, 24............124, 144
McGregor o. Bally... cs eccck eae TWE.. Dig. 819.0 cccsecee en 160, 161
McKinney v. Collins............ 1d: War. D165 AB, Mae ceases cos wi)
McLeod v. Moore.............. 15: Civ. Pro. TT ice coessauaiecs’s 81
McMillan v. Reynolds........... DCA Si Zien ttacaneassa ssaiasio: 47
Mate: v:. SCOttss ic vcsncsicnes on 17 Abb. N. C. 100......... 0.2, 6
Mackenzie v. Alster............. 64 How. Pr. 388................ 191
Mackey v. Laidlaw.............. 13 How: Pre IQ oseces a xeecsess 118
Mahaney v. Penman............ ADuer; C08ecseniesxe4.a.eseass 54
Mahaney v. Penman........ ... VAbbs B4igsavescteue ee fee seaes 16
Mahar v. Comstock............. 1 Hows Pre STissedersic seca . 137
Mahon v. Mahon................5 Civ. Pro. 61..........000. 147, 187
Mahon v. Mahon................ IO W'K Digy 347.2 .00.0008005. 147
Mahon v. Mahon ............... 50 Super. Ct. 92............0.. |. 187
Mandeville v. Winne............ 5 How. Pr. 461............. 124, 126
Mandeville v. Winne............ 1 Codé: Ny Ss 16Lees. cove suse nen 126
M. & T. Bank v. Crow..........5 Daly. 191.......0cececeeeeees 9+
Manning v. Keenan............. IBN: Yo 1Dowsnswtoss cease sees 8

Maples v. Mackey.............. 15 Hun, 588.......... 51, 52, 54, 113
xxvi

TABLE OF CASES CITED.

YEAR, RAGE:
1882 Maples v. Mackey..........- 3400 BON. Ve 148 smaaas coves D1, 52, 54
1884 Marcele v. Saltzman...........-- 66 How. Pr. 205. .......... 136, 149
1860 Marks v. Wilson..........--+- LT Abb: ST. s2eeevixisdewse sends 14
1884 Marks v. Wilson..........--.06- 13: Abbi Ne Ch Side seascediess 146
1882 Mar. Nat. B’k. v. Pac. Nat. B’k..11 Abb. N. C. 104........ 97, 98, 124
1882 Mar. Nat. B’k. v. Pac. Nat. Bk. 15 W’k Dig. 23.............. 98, 124
1882 Mar. Nat. B’k. v. Pac. Nat. B’k. 89 N. Y. B07... 0... ee eee ee eee 98, 124
1862 Marshall v. Canty.............5- 14 Abbi Qo ss sacccusweeansyar ss. 214
1875 Martine v. Lowenstein........... 6 Hun, 225) 202s eoieuwedeniwxes 121
1876 Mason v. Libby....... esses eee 7 Abb. N. C. 354........ 10, 112, 161
1876 Mason v. Libby........ee eee eee Dl HOw. Pr. 486s 02200 we aseetyyye 10
i8is Mather ®. Hannattyssssseeseeves DD HOW Pry Lies vsedameanedey 162
1884 Mather v. Parsons...............32 Hun, 338............0.20008- 8, 46
1875 Matteson v. Smith.............-- Ol WAS, G80%+4's sa ieicemwatesc nee 46
TSS) Dlatthews a Tufts. os ous secu cane By te Ve D Uigu ees ve'n ey pees 21, 22
1884 Mauran v. Hawley.............-5 ODN, BG ss cs wemeKencea ees 197
1845 Maxon v. Annas..............-. IDens: 204 ow isneows aegis 14
1888 Maxwell v. Atchison, etc., R. Co.34 Fed. Rep. 286................ 42
1857 Mayor v. Conover............... DAD, Qo or ceevcemewaneawes’s « 166
1878 Mayor v. Noll..............00 0s 56 How. Pr. 214..... lala ie ay 6a 159
188t Mead v. Miller.................. ODM: OU. serire aires aaee es 197
1855 Meeks v. Noxon................- 1 ADD, 280. cscs scecescees 14, 15, 112
A882). Melicy. Melt. scccscaecccc og gee ssn 90 Ni VeG54 wesc eiuecaedyy sis ees 70
1881 Mercier v. So. B’k. of N. O...... 1 Civ. Pro. 144,00. er eceeceseies 92, 93
1858 Mercier v. Pearlstone............ Mf ADD: B25 ieeneasmnrax nese ches 129
1882 Mer. M. Co. v. G. T. R. R. Co...63 How. Pr. 459...........-.04- 42
1862 Merrill v. George................ 23 How. Pr. 381................ 21
1881 Messenger v. Messenger.......... 12° W'k Dig. 368, : ss .vawsceseece 2
1864 Metcalf v. Clark...............4. 41 Barb. 45.......... 11, 12, 112, 114
1870 Metcalf v. Garlinghouse......... AD LOWs- Pts OL siseiewis ete x x'se eat 219
1858 Meyer v. Van Collem............ PADD aie BA lrastern aa tine crs Slat ares 38
1858 Meyer v. Van Collem........... 28 Barb: 280 wsciis: /esdisie eee sialeions 38
1873 Miller v. Adams.................52 N. ¥. 409.00... 0.0 cc eee e eee 71
1877 Miller v. Brenham.............. 68: ING AS SB irs on. cen eeqere se ats 50
1847 Miller v. Brinkerhoff............ Othe TAB ssc tne cps eetiscserme saute 58, TL
1867 Miller v. Miller.................87 How. Pr. 1..... cc cee ee eee eee 132
1874 Miller v. Perrine................ TAU 620 song ante d2 hota eeniive 219
1874 Miller v. Perrine................ Ds 8G C2286). o's baceibia ela ated ae ernie 219
A875 Miller wv: Sliallsesugucesiescsaaeues GT Bats FAG ee 50i05 fete cieneenee x 137
1853 Mills vy. Corbett......... ....... 8 How. Pr. 500................. 1
1840 Mills v. Young and Halstead.....23 Wend. 314.................. 3
1860 Minot v. Vineyard .............. TN TOWas 90 s:.6o0:00ec0 a. oan etaaren 3
1880 Mojarrietta v. Saenz............ 10 W’k Dig. 87.......... 87, 100, 102
1880 Mojarrietta v. Saenz............ SO: Ng Ws OB. sernGuntays a5 87, 100, 102
1858 Montgomery v. Tuft............. DUCA BON aigce ase Gourd 888. aunts 3 (DT
1885 Moran v. L. I. City....-......... SSN IOP assis gies gatas sae 28
1857 Morrell v. Kimball.............. 4 ADDY B52. 5 nereseas 3, 15, 48, 87, 110
1863 Morris v. Crawford.............. 16 Abb, 124.............. wae wile 153
YEAR. PAGE.
1863 Morris v. Morange............-- 26 How. Pr. 247..... wees 18
1863 Morris v. Morange .............. PADD E SBisiss uy ewe eeseuicanies 135
1863 Morris v. Morange .............. 81 Hows Pr. 689s cicsanscideuiisies 135
1862 Morris v. Walsh............... fa A DDS OB Ts cnc e ss ned arenes Auscaae’s 19
1862 Morris v. Walsh........ i dedesdisrs O Bos wei686s ce cece eens diene wears 19
1888 Morrison v. Nat. R. Co.......... 13 Civ. Pr0s233 2s eeeestaxsivwaee 88
1873 Mors v. Stanton.............-.. SUN» Ys 649 enceuesuenys « ee0e 56
1839 Mott v. Commissioners.......... 19 Wend) 610. 4 ¢ 02355 ¢teneeagss 176
1866 Moulton v. McCarthy ..........- 6: Robt: 410s icsces seavee 48, 50, 113
1888 Moulton v. Moulton............- 15 N. Ys State R.AaS.. 03. 5..00s 6, 24
1888 Moulton vy. Moulton............. 17 N. Y. State R. 427.......... 24
1848 Municipality v. Christ Ch........5 La. Ann. 453.............0... 155
1880 Murphy v. Hall ................. 23 W’k Dig. 184.............05- id
1863 Murray v. Vanderbilt............ 39 Barbs. 140 i.c.a-sainawstiassieorans 3
1863 Muscott v. Runge............... 27 How. Pr. 85............. 158, 161
1855 Myers v. Overton................ 2 Abb. 344.........-...0. 2, 111, 114
1855 Myers v. Overton..............0. 4E. D. Smith, 428........2, 111, 114
N.
1877 Nagle v. Taggert..............6 4 Abb. N. C. 144.......... 20, 59, 61
1885 Nathan v. Sutphen.............. O Racy. Riedl: yess aie iswaidctantve 1383
1882 Nat. Printing Co. v. Patterson...4 Law Bull. 64...............06 194
1819 Neafie’s Case................000 BiG, His REC AGS scawie-eiaee cans 188
1857 Neally v. Redman............ Seid LOWE: OOM ts igns iciddian voeeeeiarere aca 62
1879 Newell v. Cutler................- 19 Mun. Thy 3.22 eta Dee See's 165, 194
1887 Nichols v. Kelsey................ 20 ADD. NOC, TAs cecinesreevaues 14
1855 Niles v. Vanderzee.............. FA CHOW Pr OGM iii ae deanacareeasbrartend 4 9
1886 Noble v. Crandall................ BO FAT IS isi cian etbeeadai asaearan acs 121
1888 Noble v. Crandall...............- 18 N. Y. State R. 24............ 121
1850 Noble v. Trotter ................ ATHOW. Pi. 822) ecaitascsnevaras 137
1860 Nones vr. Hope Mut. L. Ins. Co..8 Barb. 541...........02 0008 118, 114
1860 Nones v. Hope Mut. L. Ins. Co..5 How. Pr. 96...........-+5 113, 114
1860 Nones v. Hope Mut. L. Ins. Co..3 Code R. 161...........-. 00008 113
1880 Noonan v. Smith................ 12 ADD. IN. '@. SBlicssanameneaices 156
1872 Northrup v. Wheeler............ 43: HO Ws Pre TA vacs. dagaracine 20, 191
1839 Norwood v. Riddle.............. 0: POLED; 426... cee nes eee be 53
1884 N. R. OC. Co. v. Tausig........... Dai. Reg., Mar. 6......-.-. +++ 21°
1885 N. Y. L. E., ete., Co. v. Carhart..36 Hun, 288....... 00... cee sees 160
1854 N. Y. L. E., etc., R. R. Co. v.
PUPA c22c ee eaneeaouseada tea 18 Barbs S04 oaccacves nada s v ea 212
O.
1851 O’Brien v. Catlin................ 1 Code. N. 8.278% 0c ces vee es 126, 144
1863 O’Connell v. Sutherland......... 1G: Ab by 460,115 seis jeceyeryeneneisincs 140, 177
1874 0O., etc., R. R. Co. vr. Vt., ete., R.

TABLE OF CASES CITED. Xxvli
XXVill TABLE OF CASES CITED.

1875

1878
1882
1833,
1883
1855
Is70
1872
1882
1882
1882
1824
1826
1880
1885
1889

1800
1889
1877
1873
1872
1885
1880
1889
1863
1877
1867
1850
1984
Iss
1853
1877
1868
1872
1853
1860
1877
1877
1882
1860
1860
1882
1862

O., etc., R. R. Co. v. Vt., ete., R. PAGE.

Ri; COsssiwesaas dig boa aero wraens A Hun, TQ ss eras saaccev este ee 36
O., etc., R. R. Co. v. Vt., etc., R.

Ris COtiie sansa, isiomnw a eae ie 63 Ne L1G oicaas cd dedineee 3 36, 114
Olcott v. McLean...........-- +. MS IN Ni 228 wi siesaiecaecas S854 82% 55
Olcott v. Robinson.............. DA NY. TiO esc eescae seta ces 90
O'Neil v. Bender.............065 30 Hun, 204.......0.2.eceeeeees 92
O'Neil 0. Bend? 50.5. s.caceceaac sian 13 W’K Dig. 47........--..0065 92
Oohout v. Rhinelander .......... 10 How. Pre4G 1 cccisiss cane cece: 140
Orr v. McEwen....... nunaclguelvnsrese 16 Fi; 162006 25.2 vecetces assed 03, 123:
Orvis v. Goldschmidt............ 4 Law Bull 93.............0 200 107
Orvis v. Goldschmidt............ 64 HOW. PIT was ac ee sit casa 72
Orvis v. Goldschmidt............ 2 Civ. Pro. 314.......... 72, 102, 107
Orvis v. Lambeau.......... ..- 2 McC. C. P. 250........ 72, 102, 107
Osburn v. U. S. Bank............ 9 Wiheat:. 830 .icccccedesa esses 3s 56
Oshiel v. De Graw ........-..065 6: COW. OB ceria Sede eee stew sie 145
Ostrander v. Conkey............ 20, Aun, 424 eccsuanscease deed £4 154
O’Sullivan v. Murphy............ Law Times, Jan. 17............ 46
Ottmann o:. Dalyissaicssaccnseersers 17 Civ. Pros 62i:i:.000006 - 59, 60, 61

P.
Paddock v. Beebe .........-..05 2 Johns. Cas. 117........... 141, 155
Paget: 0: Pease. c.scses ci sees ee ce IT Clive Pro.-234 66 2 cs ctcindeaees 99
Pakeo: (Proals s.cccciaiacaihs wee egaig. DE ALOW- PEW OD sisiecintar, 2s wissen 160
Palmer v. Cowdry.......-...2055 BGO, Wissen aoe: e's veers 73
Palmer v. Lawrence............. Gans. 280.5208 emake 53
Palmer v. Penn. Co........-..055 BO: FLUID y, BTL « ssccisieeie ware cee eases 41, 42
Pattison v. O’Connor............ 60 How. Predation oc seis sexs 126
Pearce v. Nester..............-- 20 N. Y. State R. 879 .... 22... 210
PGE Ds, COOK ais gcaltieavewae songs 41 Barb. 549....66, 67, 70, 71, 82, ST
Peck v. Richardson..../......... OTM BO Mian a aerweknnoe ae eens 52
P@Ck: Gi StEAUSS eis os oiae te ne ssceee OS Call. GRBs cio enadawennae »
Peebles v. Rogers......... -+0005 OHOWs. PE. QUO 2 25 223 dar aepesiersiie 136
Pellier ». Gillespie .............. Hf PAG. TR WB 2,25 ao wectaaletbbecerdats 46
Pellier v. Gillespie .............. OT Calls SSIS pink cacy ecocevans aie auaude 46
Penfield v. White............... 8 How: Pr Sts.s sasesesesaves 164
Pennoyer v. Neff...........00005 CW Diss 100 se e8 seacowenacce 109
People v. Boardman............. 4 Keyes, 59: cveck yeu tiwacnn sinwiac LOS
People v. City of Troy........... G Alb, Tue Ji 826 sxascanaiva vies es 182
People v. Compton.............. TV Dur. 512i a ve teens ooeeseie ta 165
People v. Contracting Board..... 20 How. Pr. 206 .scecsssca cece 173
People v. De Camp.............. 12 Bun, S18. .0. cece sesana es 183, 186
Péoplé:y.. Flannigan: 0 scsccc 68 WK Dig. 819 osc0s cea eeax ees 183
People v. G. W. S. 8S. Co........ 4 Law Bull. 64................. 6
People 0. Gray ccc iceecnsenioe es 10 ADD. 468 ic ceccieceeeseeras 90-
People v. Gray....... eee eee eee 19 How. Pry 28830 sscscieew es 177, 178
People v. Herkimer C. P........ T Wien i586 sscstacty aietetets veeeniens liz
People v. Huber .......... 6.66. 20 Cali Slivscsascewsitvinae entice 57, 70
TABLE OF CASES OITED. XxXix

YEAR. PAGE

1851 People v. Hulbert............... 5 How. Pr. 446.............0058 149
1877 People v. Lamb...............08 10: Fin, 848 oss sccme view sew eed 185
1875 People v. Marvin 8. Co..........5 Hun, 218 0.0.0... cece ecee eee 183
1864 People v. Matthews...... seis 43 Barb 168.. ...............- 186
1879 People v. Perry .............- 16: Hun, 461i 5.2 cae saiewwes ces 176
1864 People v. Platt..... Sony Aye meuees 43 Barb. 116 ...0. cevevesaaes os 186
1847 People v. Rennselaer...........3 How. Pr. 164........ ..00000e 173
1877 People v. Sturtevant ............ DOING Nige268 aaicia'a'e es oe SRR eee 19
1878 People v. Sutherland............ 16 Hun 192 see acass areiae 47, 177, 178
1880 People v. Sutherland............ SEN Vs. Vicor aiey gale eins 47, 177, 1%8
1885 People v. Walters............... 7 Civ. Pro. 406...... eee ues 167, 210
1889 People v. Warner .............2. 20 N. Y. State R. 575.......... 193
1825 People v. Westchester C. P...... 4 -COWe Was oa'se ae aulese sess 172, 173
1825 People v. Westchester C. P...... A COW 408 ices ce se twesion'’s 172, 178
1855 People v. Ulrich ................ 2 AD W28 sc siers che: Kuwereae ans 187
1876 Person v. Grier .... 2... 0.22.08 66. Nie Ys AD oiscs ceesradiatesy 20, 21, 22
1864 Petrie v. Fitagerald.............. 2 Abb. N.S. 804 coe essere a eetciat 124
1846 Petrie v. Van Rennselaer........ 2 ow. Pr. 94 ics cost qtenesers 9
1838 Phelps v. Phelps................ T Paige, 150 sscciiecce eens gather 19
1883 Phelps v. Phelps................ 6 Civ. Pro. 120...16, 55, 78, 115, 121
1884 Phelps v. Phelps................ O2 UM, 642s. ois sce ewie ie e ace 55, 73
1854 Phillips v. Prescott.............. 9 How. Pr. 430............. -.-. 124
1879 Phinney v. Broschell............ 21. Alb. Le J. 836.228 cece eee es 86
1879 Phinney v. Broschell............ 99. HOW, P4923 sicesiew seaman 86
1879 Phinney v. Broschell............ SOUN. Vi Dike a cowadesaneaaansns 86
1879 - Phinney v. Broschell............ 19 HU, TVG: iyo aise Bisinecatnriecays 86
1880 Phinney v. Broschell............ OWE DIS: O82 jis dinesecnnnss 86
1880 Pheenix Ins. Co. v. Wulf........ 1 Fed. Rep. 775...........-000- 63
1883 Piser v. Lockwood.............. 17 W’k Dig. 813..............2. 68
1883 Piser v. Lockwood.............. B80 CEU, 6.23.5 o-. ete walated sae 68, 74
1834 Pitt v. Coombs..........-......- BB BAL, WOTS ie oon ace dann eee oes 23
1861 Pitt ». Davison................. 12 ADD OS Oise .de sernnrnaalse ous ir5 187
1861 Pitt v. Davison................. DIDALDs. Uilewcaiionainnmnr nascae ss 187
186% Pitt vi Davisonic.s.ssscccedccnes 3 Abe Ns Se B98 wieinsccnadseetae oe 187
1867 Pitt v. Davison.................54 How. Pr. 855............ even LOT
1867 Pitt v. Davison................. AION, MeQBO i hse Geek ak aston 147, 187
1856 Platt v. Townsend.............. DAD Ds Qessccsiorsueseareianae 6 3-000de bh 124
1851 Plumb v. Whipple .............. T HOW, SPits 07 oie seen ae nenen ap 154
1876 Plummer v. Belden............. ScAUn; Sb iiaw adc o5.65 J cwesns Ws
1869 Pollard v. U. P. R. R.Co........ TDs Ne Ss: WO sie sa Screened aealade 20
1861 Pollard v. Wegener.............. LB Wis. DOO see waussnna tena ke eats 135
1882 Pomeroy v. Ricketts............. 15) WED: 25, <2. bos 3:58 fexieistersiace 101
1882 Pomeroy v. Ricketts............. QT TA 248 sae aassee sue.9 a 4 gaeleseie 101
1883 Pomeroy v. Ricketts............. 16 W’E Dig. 827 ........-. 2. eee 101
1883 Pomeroy v. Ricketts......... ... OF IN. Xs C6825 oc a vicassis anges 101
1888 Pope v. Negus ........+.eeee eee 14 Civ. Pro. 406..............-- 22
1881 Popev. T. H. C. M. Co. ........ QA AUR, 288.0. secdrereve see a0. 29, 36, 3

1881

Pope v. T. H. C. M. Co. ......6. BUN, eo Plsisisanscaces 29, 35, 36
XXX

YEAR.
1886
1886
1886
1886
1864
1863
1823
1883
1876
1822
1886
1883
1850
1869
18st
1886
1886
1829
1852

1853
1846

1847
1885
1870
1883
1854
1803
1859
1849
1849
1863
1879
1880
1880
1881
1859
1855
1855
1887
1888

1874
1861

TABLE OF CASES CITED.
PAGE
Popfinger v. Yutte.............. 102 N.Y. 48... cee e eee scenes 16, 17
Porter v. Lord ...........eeeeeee 4 ADD: ABs sie eisiess we ccapisatens s vie'e's 17
Porter v. Lord .........seeeceeee 13 How: Pr. 2540 suis aces x 17
Portery,, Gord. .cc0s sss cies ves A: Dury 683 weossesten aise eleva ca cee 17
Potter v. Merchants’ B’k........ DS ING. Go8 diiaitec ere y ssie's bE Ae 52.
Potter v. Whittaker............. 27 How. Pr. 10......... +++ 210, 215
Power’. Kent... .. stsxcece: sceies De COW ZIT batssisrecstesie' olele sie aales 140
Prentiss v. Cornell.............. Ol Aun: TW ci eee ease EE 11
Price v. McGoldrick............- 2 ADD Ne CoD ss ats's es Sok Halse 187
Priddle v. Cooper............0065 1) Bing; 0606. ideas agaseniars 3
Pritsch v. Schlitht.............. 5N. Y. State R. 871............ 21
PHYErO: (ClAPPewcncsmnnnos wa en's s A Dems: 387 siscsecevwadewass 197
Pulling v. People...............- SB Barb: (386 vawess.s dase eae teenies 13
PUPVIS O.GIAay as cilenitee aenedans BO HOWs Eka Lis nest inccoaeeeeaee 144
Putnam »v. Griffin...........-.4. 19 WK Dig. 46 ec caeseeeaces 81, 104
Putnam Co. C. W. v. Jochen ....8 Civ. Pro. 424...............0. 102
Putnam Co. C. W. v. Jochen ....38 How. N.S. 163............... 102
Putnam oj Mats sacs eccevwescaes O Wend. 202%. v6 es 24 edn etna 209:
Putnam v. Van Buren........... 1 HOW) Pr: Olis sai 0 cscs takeaans 149
Q.
Quin ». Tilton, ........... aeuwes 2 Duer, 648.......... sees akias 122
Quincy v. Foot..........6..06. ..1 Barb. Ch. 496................ 140:
R.
Radcliffe v. Van Benthuysen..... & HOWs PreOl s osx ssaedaasou aus 187
Rafferty v. Williams............. 34, Mun, 544 50 s0s cassiewssecise 128
Railroad Co. v. Harris........... 12; Wall, Sls s.:ccdsesesieuecn. 42
Ratelo. Rate). cccinerge cs eee es AT WEDigy 186. c0cca0ceeceuxs 72
Rathbone v. Acker........ eer aente 18 Barbs: 898): sic iwdes sega 149
Rathbone v. Blackford........... A als B48 o-oo s mala eeae oben ans 155
Rathbone v. Clarke.............. QUAM D! OG, Wee cre wsieeten edie ed x 158
Rawdon v. Corbin............... 3 How. Pr. 416........ 72, 76, 77, 88
Rawdon v. Corbin. .............. QOODE Rie Bish Srccoca catering eeu 72, 88
Read v. French................. QE N.Y: 280i woe saawiees ae 51
Reddington v. M. L. & M. Co....19 Hun, 406................0. 30, 31
Reed v. Catlin aseiccescaeeeeeea. BO “WiS+ G8G). cists ities anceroysurtierae nce 45
Reed v. Catlin .........0ce eee ees 6N. W. Rep. 326.............. 45
Reilly 0; BytMesccsenes vos ceee de D'CAV PLO.) 20D esesienesnes 34008 126
Reno v. Pinder: .cias.0c08 ee case QO! NG ee 20 Bis sss cuncniesineeieeasd o058 215
Reynolds v. Davis............... 2 ADDY 168 ccc seiedeeec canes 152
Reynolds v. Davis.............. DH Duets Cll eswicaccinrgv asics’ s crea 152
Reynolds v. Palen.............. 20 Abb. Ni Ce ssscssavecee sas 14
We oy a iat OS haa! 30, 42
Rice.G.. Nel Gi isriciieias c 5 5 eee seen 09 Ni. Ws SIS cescivawaey eee ws 147
Richardson’ v. Bates............ 23 How. Pr. 516......... -97, 98, 123.
YEAR.
1877
1879
1879
1808
1871
1862
1879
1853
1860
1860
1861
1874
1871
1830
1869
1870
1880
1850
1851

1864
1875
1874
1874
1888
1866
1887
1849
1849
1882
1879
1885
1860
1881
1871
1886
1854
18387
1887
1887
1887
1832
1849
1887
1872
1877

TABLE OF CASES CITED. XXXI

PAGE.
Riddle v. Cram.............0.00 3 Abb. N. C. 117, n...........- 159
Ritten v. Griffith................ 8 W’k Dig. 54.......... 91, 92, 93, 94
Ritten v. Griffith................ 16 Hun, 455.............4- 92, 93, 94
Rob v. Moffat...... cc... eeeee 3 JONDS. 257... neveneececcnes B
Robinson v. McManus.......... 4. TANS. BBO ee stem aren en eerene ace 185
Robinson v. Ryan..... Auiiecotasiusds QS INE Ys DLO iisaiasshaiiinnldertoneiaedses.e + 191
Robison v. Miller...........0..4 5T Miss. 257.0... eee cece eee e ee 63:
Roche v. Ward..... be Maciersiacs oils 7 How. Pr. 416.........--66. 83, 110
Rogers v. McLean.............- 10 ADD, 909s cexcsaanes soebe ee 7
Rogers v. McLean.............. 1D ADB ASG. ce awmansaonaeanas 7
Rogers v. McLean............4. BE IN We, BBG josedecciuey aio eas 3 7
Rogers v. Schmersahl............ FT Ses COGS diosa iieere iareeacae 53
Romaine v. Cornwell............ 11 Abb. N.S. 480 .............. 124
Ronkendorff v. Taylor.......... 4 Pet. BG1e.s it okie tenes 90
Rorke v. Russell ............-065 2 Lans. 242.......00. Siatat'et averse 2 165
Rose v. Lewis.........-2eeee eee 3 Lans. 820.22. ceed ee ene none 206°
Rossner v. N. Y. M. A......... D0 Fi 1S Biss, 2 g.5 85 Aaele eumiaestsaye 148.
Rowell v. McCormick............ 1 Code N.S. 78........0.46 gavonr les
Rowell v. McCormick...........- 5 How. Pr. 387.........6 erece 140°

S.

Salhinger v. Adler...........0.4. 2 Robt. T04....... 0... cece eens 23°
Sanford ». Sandford.............5 O2EN,, WeB OT sci e scdigadenanieeetiys q
Sanford v. White ...........2.066 DGLN.. Mie SOO aa cuerats 22 68, 107
Sanford v. White.............00. 46 How. Pr. 205....... 000-0000 68
Sargeant v. Mead............-06- 17. N. Y. State R. 996........... 50
Sayles v. Davis.......... eee enone 20 Wis. 3802) ass4 ses ede sees 45
Schaffer v. Risely..............- 44 Hun, 6i24084 ee ten sheers 179
Schenck v. McKie........-....4. 4 How. Pr. 245............ 185, 136
Schenck v. McHie.............-- S:Codeé Ri Q4scssv5 424% o9 a 135, 186
Schlessinger v. Foxwell.........- I City Cty. Ris 461. sys cesecnsear 22
Schmidt v. Selinger.............. I Law Bull: (GL 2sccisesecectes 148
Schroeder v. Lear..........005+ LAT Wk Dig. 574........ 71, 74, 75, 89
Schuhardt v. Roth............... TO:ADb203 02 ceauekeeniabat sos 187
Schumaker v. Crossman.......... 12: WE: Dig: 99) 2202 teeewsseens 86
Schundt v. Calm............6.4- 3. Albs Ties 889. 25s cance srcawac 148
Sears 0. Sears cctetanwss heen 3 O:Civs Pros 402+ oeacscatean vane 109
Seaver v. Robinson............+-. 0. DUCK; 6226 dw dmaaeierasine aes so 6 21
Seilerw. Wilson. ccusmaasieesye< 26 W'K Digs 29%. oes sccces sae 75, 80
Seiler v. Wilson.............65. 43. Hin 631 6 ca vesawaniaeersinas 75, 80
Seiler v. Wilson.............00- 12 Civ. Pro. 268.......0+. acaapaae 86
Seiler v. Wilson...............- TN. Y. State R. 254.......... 75, 80
Selby v. Hills ...........-. eee eee 8 Bings 166s accnsecarmsneessins< 23
Seymour v. Judd.............00 ON: Y. 464. cccsessanewsnsennes 17
Shackelton v. Wainwright...... 8N. Y. State R. 822............ 211
Sharp v. Baird...........eeeeee 43 Cals SU ine taieemancopeitee sou 63
Shaw v. Cock......:.seeceeeeeee 12 Hun, 177. ccnesossasas teceee 54
XXX11 TABLE OF CASES CITED.

YEAR
1881
1885
1875
1887
1865
1852
1878
1866
1804
1875
1875
1847
1858
1874
1884
1888
1888
1882
1882
1883
1882
1882
1874
1873
1854
1862
1862
1862
1877
1882
1888
1830
1sst
1881
1855
1850
1876
1860
1874
1854
1849
1881
1880
1872
1851
1879
1848
1878
1887

PAGE,
Sheldon v. Wakeley............. 3 Law Bull. 94............--++- 20
Shepherd v. Wright............ 35 Hun, 444 ...... geass 16
Sherman v. Conner,........-.6-- 16 Abb. N.S. 396..........0065 7
Sherman v. Gundlach.......... Of Mints 118 is cass cee cease news 21
Sherman v. Strakosh ............ Transcript, Mar. 3d............ 98
Sherwood v. 8. & W. R. R. Co..15 Barb. 650.......... ...20 20 216
Shults v, Andrews.............. 54 How. Pr. 380............- pers
Silleck v. Heydrick.............. 2 ADDN: Si BTisccn sae vainseens 105
Simonds v. Catlin.............. 2:Cal..Ghiveck ockeenuensassebnes 49
Simpson v. Burch.............. OTD BG. BOO ciao 5.8 wsavteeeen ve 58, 59
Simpson v. Burch............+. 4 Mun, B16: 5.5. enc ce seeds 58, 59, 100
Sims v. Humphrey.............. Ae WOM es, VODs a cdea ve ara apsievecessinare 182, 187
Skinnion v. Kelly...............- TSUN Nie 800s 2s se stede cenoyoe Saad 58
Slade v. Joseph..........2e0ee0 D Daly, IST. css saree sacianiciceeie 19
Smith v. Fogarty..... Gai eaa eles 6 Civ. Pro, 370..........-. 60, 61, 63
Smith v. Gibson................ S50: Rep.82]ssiccccedverseieas 16
Smith 9: Rernisessdssaeassseasss 1, How: Ni S: 129) 2 cscceee cen sen 210
Smith v. Mahon...........6..066 15: WE Digs 49s. css ec ices verens 79
Smith v. Mahon...............6- OCiv: Pro, O0veseaiweedesagsued 79, 104
Smith v. Mahon................. 2 Civ PLO: 60 sas xeaceseaeeea eas 104
Smith ov. Mahon...............- 63 How. Pr. 382 ...........245. 79
Smith v. Mahon.... ............ 2h Huy 40 awisivistgacae eee eevee 719
Smith v. Matson... .......00.5. 47 How. Pr. 118.0... 2.0000 e eee 71
Smith v. Meyers............005- LADS CCC hess acess enc alesirs ne)
Smith v. Smith................. & Greene (Iowa) 266............ 135
Smith v. Smith.................. 23 How. Pr 134................ 166
Smith vw. SMithen sewnosaccewweaee 1A ADD: 180 seicuisete es ges aeeeetiaye 166
Smith v. SmMith...ccnciscwe saw ee TAWA DD AGS is cores ee cae tara 166
Smith @.. WelS. cccdecseennsince as 69 N. Y. 600.............- 91, 92, 95
Smyth v. Rowe.........eeeee eens 4 Law Bull. 60........ 91, 93, 105, 109
Snell vy. Thorp.......... vgeenei ees TGIN.. ¥. State R.88.. vesc escees zild
Snelling v. Watrous............ D Pare. Old ot aissed wets 3.5 date rics 11, 1z
SMUD Wy PCC a eccre sip atsadns 6. Civ. Pro.: 1883 :2's.03 ¥:5.seire eicse 124
Southern, etc., Co. v. Sherwin..1 Civ. Pro. 46.......... Baiaieriaiste 100
Southwell v. Marryatt.......... 1 Abb. 218226025 Sov etaas sieves JS
Soverhill v. Dickson ............ 5 How: Pr: l09s.e0sccssscawress 7
Spaulding v. Lyon ...........6+- 2 Abb; N. ©. 203 ecsnceveseasene 44
Sperling vo; Levy:.ciess.e. eee ee es A Daly; 9Sic0es02% sewens x ewes 50
Spiers v. Halstead ........-..... We Nip Oy. 209 oceans ab eneeaeg sie 73
Stanton v. Kline...............- TN Vis TOG bis aa eee ove 140, 191
Staples v. Fairchild ............. Oo Ne Nee Al anisce eles getnteteiias 58, 71
Steele v. Hutton ..............0. 3 Law Bull, 99...........ecee ee 25
Steiger v. Bonn...........0000.. 59 How. Pr. 496 ............06. 12
Steinle v. Bell.... ........-.e00 12 Abb. N. 8. 171..... 71, 75, 90, 110
Stephens v. Moore .............. 4 Sandf. 674............00..000. 119
Sterett v. D. & R. G. R. Co..... Th Hun, B16. eases teen cn eee 80, 31
Sternberg v. Schoolcraft......... 2 Barb: 188.sacsewewssvessaee se 11
Stevens v. Steven$..........eee- 0 TROL, 0 eseeenaesava ae eee es 200
Stewart v. Smith....... oeeeseeeel? Wend, 517...... sisie's eee eens QS
TABLE OF CASES CITED. XXXili

YEAR PAGE,
1862 Stone v, Miller....... SiGe ee 62 Barb. 480...... dardideamecwe TE
1827 Story v. Elliot.... 00... ce cee ees BI CO We 2B ian csntringuavteeronaidiate acetanaleaes 13
1888 Stow v. Stacy......... cee ee eee 14 Civ. Pro. 45... . cc cee ewe e eee 72
1886 Strong v. Dickenson ....... .... 1M. & W. 488...........000. a Qe
1879 Strong v. Spittlehouse.......... 2 Law Bull, [1eicccs cece cee 94.
1859 Struver v. Ohio Ins. Co.......... OAD 28's soicsar assisting earb aco sscvenase aieve 220
1865 Sullivan v. Frazee.......... seid ROD ClO essa eee sites nee eanuons 17
1835 Sutton v. Burgess..............- TC) MQ Reo Ves setas ebieccin 5
1884 Sweet v. Sanderson Bros........ 6 Civ. Pro: 69 ccc se08 es caus 117, 118
1884 Syracuse Say. B’k v. Burton..... 6 Civ. Pro. 220....... se. -6, 67, 76
1885 Syracuse Say. B’k v. Porter...... 386 Hun, 168....... seesweae ake: 129
T.

1874 Taddiken v. Cantrell............ Aa AO cade as ead tee oe 101
1874 Taddiken v. Cantrell............ BD Cy 292) gic e weed ated wie 101
1870 Talcott v. Rosenburg............ 8 Abb. N. S. 287. 70, 71, 87, 111, 113
1870 Talcott v. Rosenburg............ 3 Daly; 208.00 .s ee ersravicisaals 70
1834 Talman v. Barnes............... J2 Wend. 220: ciiecweees verte 53
1879 Taylor v. Troscoso .............5 TONG: Nev DOD «dew taearas tines 100, 103
1878 Tebov. Baker.................. 16 Hin, 184.0 2.eeenceee ess 148, 159
1879 Tebo v. Baker.................. TEN Vi Bberee es esd ekbeben 158, 159
1867 Thebaut v. Canova............-. TL Pay Vas icesinsten teas ance 48
1884 Thistle v. Thistle............... 66 How. Pr. 472............. 96, 106
1884 Thistle v. Thistle............... 5 Civ. Pro. 48...........- 55, 96, 186
1878 Thompson v. Freidberg..........54 How. Pr. 519.............05. 163
1877 Thompson ». Sickles............ 8 Albb,, Ne OC. 122s. 3 sssicccsaces 160
1854 Thurston v. King................ D AbD: 126 i.sschiis Seeee he eta ace 3, 48
1858 ‘Titus v. Relyea........... Reiesindia 16 How. Pr. 871...........-. 69, 115
1858 Titus v. Relyea...............00. S ADDO ATT ccc: ete taka eens 69, 115
18387 Tomv. M. E. Church........... 19 Wend 25 iavenscmniicicacdes 29
1851 Tomlinson v. Van Vetchen...... 6 How: Pri 199, sccsccceeaes 98, 123
1851 Tomlinson v..Van Vetchen...... 1: Code N.S: 817 oss cscee50% 98, 123
1872 Toomey v. Andrews............. 48 How. Pr. 332........ ...... 146
1884 Toronto G. T. Co. v.C. & B. R.

Ry @62 2 s2 os. see ada nee 82 Hun, 190..................89, 41
1860 Towsley v. McDonald........... 32 Barb. 604...... ..10, 72, 83, 87, 94
1852 Tracy v. Reynolds............... T Bow: Pris $27 ices ove veces s 120
1851 Travis v. Tobias..............6. 7 How. Pr. 90...... womyesirses 120
1857 Treadwell v. Lawlor ............ 15 How. Pr: 8icccsuncnesass ssa 11
1887 ‘Tribune Assc’n v. Sleeman...... 12 Civ. Pro. 20......... 21, 22, 194
1850 Tripp v. De Bow.......... tierce 5 Hows Pry 1140008 cacscwsces ss 147
1874 ‘Trolan v. Fagen.... ..-...--. eee 48 How. Pr. 241..........0.5.- 52
1855 Trowbridge v. Didier............ 4 Diet; 448 26s vcgedsiwasasosene 126
1889 Tuchband v. C. & A. R. R. Co..115 N. Y. 487... 2c eee eee 211
1888 Tuller v. Beck........... 2.005. 20 Abb. N. C.425...........66- 54
1887 Tuller v. Beck..........--.-000 46 Hun; 51965 sccnsevienweeass 54, 101
1883 Turner v. F. Ins. Co. of Phil....17 W’k Dig. 212........ coh Gin’ . 387
XXXIV TABLE OF CASES CITED.

 

YEAR, PAGE.
1883 Turner v. F. Ins. Co. of Phil....93 N. Y. 634 ..........e cece eee 8
1823 Tuttle v. Hunt............ sie pieierg A COW iA BOs axis witln d-maimiontea deve as 209:
1881 Tyler v. Williams......+.+eeeee0-9 Daly, 465...... eee eee e enone 100
‘Le
1842 Union Furnace Co. v. Shepherd..2 Hill, 413 ...........-.- 2000 6
1887 United V. Co. v. Tritle..... geese 20! ADDN, Ce dtc oe saivewee ces 101
1822 Upton v. McKenzie .... ........ VD GR LY Disses acceitccst csecsiciene Xe 13
1859 Utica City B’k v. Buell......... 9 Abb. 885........ sea 50, 193, 194
1859 Utica City-B’k v. Buell......... 17 How. Pr. 508 ..... 16, 50, 198, 194
V.
1875 Vail v. Lane.......... cee eee ee ee 6T Barb: 28) 06 ascencai cin ces 142
1875 Vail v. Lane.........eeeeee eee 4 Hun, 638.............006. 141, 142
1885 Valentine v. M.S. Depot........ S86: AND, 20} is sce eee 121, 122
1885 Valentine v. M. S. Depot........ 22 W’k Dig. T1.........00ee 121, 122
1854 Van Alstynev. Erwin........... LLNS Ms, Od Out ccidiageesteinee ad 7
1853 Van Benthuysen v. Lyle ........ 8 How. Pr. 312)... owen cece ees 139
1857 Vanderbilt v. Bleecker .......... BADD: 289 caisessice teste bec oe 129
1825 Vanderpoel v. Wright........... ACO Ws 209s cscistean asic Woes o-tereese 13
1879 Van Dyke v. McQuade.......... 18: Hun, 816) .csccowieccwe sds 121
1851 Van Horn v. Montgomery...... 5 How. Pr. 238.... ..eeeceeeees 137
1887 Van Horn Bros. v. Gt. W. M’f’g
OGiec how Ha daa steve sae dais 15 Pac. Rv 5620064 sscsveveasaca 11
1887 Van Horn Bros. v. Gt. W. Mfg
COvssiss cok Rema seesaw enmOd WanS: O28 05 vee see nveawes vias 11
1851 Van Kirk v. Wilds.............. 11 Barth; 6202 26% ssgs sabes cians 215
1852 Van Pelt v. Boyer.............. T Hows Pr. 825.05 eens bsawaaen 118
1852 Van Rensselaer v. Chadwick....7 How. Pr. 297.............. 47, 50
1849 Van Rensselaer v. Dunbar....... 4 How. Pr. Ibs sed ewineadees 69, S1
1845 Van Rensselaer v. Palmatier....2 How. Pr. 24...-.........2.00. 10
1845 Van Rensselaer v. Petrie........ 2 How: Pry Qhesie sacaee iver es lo
1884 Van Schaack v. Saunders........ 82 Hun, SB sincere eeeeese nage 191
1874 Van Rhade v. Van Rhade...... 2T. & C, 491............ 71, 89, 95
1815 Van Vetchen v. Paddock........ 12 Johns, WS caucasian s ceva 13
1860 Van Wyck v. Hardy............. 11 Abb. 478, 476.......... 87, 90, 93
1861 Van Wyck v. Hardy. 4 Abb. Dec. 496.............. 90, 93
1861 Van Wyck v. Hardy 20 How. Pr. 222......... 5, 74, '75, 90
1861 Van Wyck v. Hardy........000+. eee
7 Yd, tio
1855 Van Wyck v. Reid.............. 10 How. Pr. 366.............. 47
1852. Vassar v. Camp..... pipet betas 14, Bar. B4les daca ccecvs ++. -135, 187
1859 Vence v. Speir.........e cece eee 18 How. Pr. 168% occas eee aeee -» 138
1850 Vernam v. Holbrook............ D HOW: P&s Qideccwiexss «67, 76, 77
1883 Victor M. M. Co. v. Justice Court.18 Nev. 21............e eee suave (3
YEAR

1868

1868
1858
1881
1880
1857
1859
1887
1887
1862
1854
1878
1881
1800
1857
1858
1858
1849
1849
1877
1880
1878
1852
1874
1854
1858
1874
1877
1866
1855
1881
1881
1849
1881
1881
1836
1865
1848
1885
1887
1852

1872
1873
1817
1882

TABLE OF CASES CITED. XXXV
W.

PAGE,
Wafile v. Goble........ se SSRN | 58 Barb. 517. .67, 71, a i as ae
Waffle v. Goble.........ece cece 35 How. Pr. 356... .67, 78, 74, T7, 100
Wait v. Schoonmaker............ 15 How. Pr. 460...-.. dhs tne ed face 4
Walker v. Reiff.............06 13 W’k Dig. 8381.......0-.000- 70, 94
Walker v. Walker.......-...-.-+ 20 Hun, 401.............- «147, 187
Wallis: v. Lott. ::ss00csssseee ses TS HOW: S6Tveccccasccrceans cas 50
Walsh v. Kursheedt............. S Abby Als ooesyacdvedeaeeaes¥ 119
Walter v. De Graff............-. 19 Abb. N. C. 406...... ....- 80, 94
Walter v. De Graff.............. JIN. Y. State R. 274........ 80, 94
Ward v. Arenson............006 10 Boswe 580.0 ssicesesare sa o08 e008 188
Ward v. Dewey........---02665 12 How, Pro 195: ase cece cee 158
Ward v0. Roy siiessssscceneeeeees 69 Ns. Ve. O88 025 scacens none wes 55, 56
Ward v. Sands..........0.ee eee 10 Abb. N. C. 60......-...00-- 1382
Wardell v. Eden..............6. 2 Johns. Cas. 121............4- 147
Wardwell v. Patrick............. LT Bosw: 406s stasoweicaeas chee 51
Warren v. Tiffany ............-- 17 How. Pr. 106.......... 75, 83, 94
Warren v. Tiffany ............6 DADDY, 66. 25 ieee se wasioiw's 75, 88, 94
Washburn v. Herrick............ ASA OW: Bis, Ub sis trav eesnee es 145, 154
Washburn v. Herrick............ D COdE RE 2 asia aides gn creed 145
Watrous v. Kearney..........-- AT HAT, DSA isi wie dwinsawamoredmeres 189
Watrous v. Kearney..........- oie ONG. Me ADB. aia ansaus eeqroncaneiusieeen 189
Watson v. Bedlin...........0.0- Dai. Reg. of 1878 ...........065 160
Watson v. Cabot...............-5 Sandf, 428.......... 0.0.0.0 56
Watson v. Church..........+... 8 HUM SO sscsae wevcswsew. eae 20
Watson v. Fuller............0.-- 9 How: Pr. 420%. wsatescacctscs 165
Watts v. Willett.............0-6 2 Hilt, 212. dascwweedscaaaeres 214
Weber v. Boyer..........00e eee TW Ne ©: T6ks cin ieaicacnsis 23
Webster v. Stockwell............5 Abb. N. C. 116............. .. 160
Weeks v. Merritt................ ®} Robt.. 610: 2csscecesovecscasss 45
Weeks v. Noxon............005- 11 How: Pr. 189: .62c0.25.5. 14, 112
Weil v. Martin........-.......4- 1 Civ. Pro. 183............ 79, 80, 92
Weel W Martini. sisccd.cied daha cre enccava 24 Hun; G45. ssiweanaviowns seus 86, 92
Weir v. Slocum...............-5 3 How: Pre 397 .cscrcccccos 127, 131
Weis v. Schoerner.............. Dd. WiSe Tinicec.eaas smem ess 46
Weis v. Schoerner.............. ON. Wi Reps 194s00 ssa ccesewers 46
Welch v. Walker..... 0.0.2.6... 4, Porter, 120.22 2 ssiic.ewseneed 53
Welles v. Thornton.............. 45 Barb. 390.............. 70, 71, 87
Wellesley v. Mornington......... V1, Béayi 18hics ios cia reese’ 165
Wellman v. Frost.............. 88 Hun, 39960 reece eeivin decease 146
Wells v. Dawson.............5-- AS Hin; 5092 vaescas cee oeaaan 220

Western B’k v. City B’k of Co-
lumbus. <2 sncusioned deygeians T How: Pri 288.cc%5%200es48 eres 41
Wetmore v. Parker.............. 1 Lanss A2L i rcceneeosaiss 195, 206
Wetmore v. Parker.............- 52 N. Y. 456.......0.05- 132, 195, 206
Weyburn v, Neale............+- 2 Burt, 818s cxconsessdeesitess 13

Wheeler v. Bartlett.............. L Hawes 828. wcncsngeenenies 14 15
XXXVI TABLE OF CASES CITED

YEAR
1817
1856
1857
1872
1878
1878
1874
1874
1887
1881
1881
1885
1831
1888
1834
1858
1884
1883
1883
1883
1888
1878
1888
1884
1885
1881
1846
1863
1845
1885
1885
1885
1885
1887

1889
1878

1867
1888
1885
1885

PAGE.
Wheeler v. Lampman.......... 14 Johns. 481..... sa egieteeeae es 215
Wheeler v. Lozee... ........4. 12 How. Pr. 446.......... eee eee 157
Wheeler v. N. Y. & H. R. R. Co.24 Barb. 417.......-0 cee eee ee 50
Wheeler v. Scully....... 0 ..... 5OUNS Ver COT aincuie earn ene Cane aes 68
Wheelock v. Lee............-25- WAUINGG Wi AQ eis o's cates tha eas 56
White v. Bogart...........0006+ BIN... D56iG5 esse es . 52, 54, 113
White v. Coulter................ Lin, 356.5 ccncee sees care * 20
White v. Coulter................ SOUN. N: 620 noc 2 eee ia ae a!)
Whitney v. Haggerty............ T State Ri T6Cii ssc cscce cas 125, 140
Wichman v. Aschpurwis........ 55 Super. Ct. 218...........006- 81
Wichman v. Aschpurwis........ 18 N. Y. State R, 339.......... 81
Wilcox v. Egan..........ceeeee 51 Super. Ct. 278..........66+- 51
Wilkie v. Chadwick............ 13: Wend: 49..0220.cccedeente 217
Wilkinson v. Chilson............ 386 N. W. Rep. 836............. 46
Williams v. Bacon ............6 10 Wend, 680). 04.4500 cccceerees 12
Williams v. Van Valkenburg....16 How. Pr. 152.............. 8, 114
Williams v. Waddell............ 3 Civ. Pro. 19 ses see cee ees 3
Williamson v. Williamson...... 2MeC. Co PR. 428 caw et ecnees 73
Williamson v. Williamson...... 8 Civs Pro: 69¢ cesses case ees 3
Williamson v. Williamson...... 64 How: Pr. 450. s022.asece0es0 3
Wilson v. Blanco........... 2... 14.N. Y. State R. 866.......... 24
Wilson v. Callocssause succes saves 49 Iowa, 463................ 63, 155
Winslow v. S. L., ete., R. R. Co..15 Civ. Pro. 202...........-... 29
Wood v. Holmes..............+. 19 Wek. Dig. 12bececnceewy exons 131
Wood v. Knapp........-....---- TOOIN. Ye Tt cosas oes siesees recs 90
Wood v. St. L. B. & I. Co....... t Givi, PPOs 220 bias inegira giste ts 67, 82
Woods v. Hartshorn............ 2 How. Preiss. s siete Selec 139
Wortman v. Wortman.......... LT ADD: OT secs. ssssiiecsversran 70, 76, 77, ST
Wright v. Forbes...............- 1 How. Pr. 240..........--..4 144
Wunnenberg v. Gearty.......... 86 Hun, 243............ 71, 77, 80, 81
Wunnenberg v. Gearty.......... 7 Civ. Pro. 893........ 71, 77, 80, $1
Wunnenberg v. Gearty.......... 2 How. N.S. 185.......... 71, 77, 80
Wunnenberg v. Gearty.......... 21 W’k Dig. 549........... 71, 77, 80
Wyckoff v. Packard............. 20: Abb. Ne Ci 420s. earceaice 11, 12

Y.
Yates v. Guthrie................ 26 .N. Y. State R. 593.......... 187
Yenney v. Yenney...........00- 1 Civ. Pro, 146, n........ 60. eee 76
Z.

Zeregal v. Benoist.............. 83 HOw: Pri 120s ccsesaacecse ve 17
Ziforkes v. Chmelniker.......... 15 N. Y. State R. 215.......... 13
Zwickey v. Haney.............. 63 Wis. 464............- eee 46
Zwickey v. Haney.............. 23 N. W. Rep. 577.....-...0.00- 46
XXXVii

TABLE OF SECTIONS.

SECTION, PAGE. | SECTION. PAGE.

 

 
XXXVill

PAGE.

SECTION.

QBQG oe. asaceseves seein ake 202
D527 isc utaeeaseebin ves ..24, 25, 203
Q5IB ec ecieseees Os sean 206
hy a Techgeustautydye «+ 205

£235) se teeeeeesoeccces 204

 

 

TABLE OF SECTIONS.

SECTION.

TO oi testa eet repeat 68, 221
S110: sasser Se Sela in Sa 221
OO aes Semaiairels Sale dana eien sees 221
BOOB os Saetats srensnmnt thes ese 222
3843...... ae eects eayeaes we 28
SERVICE.

TITLE I.

ARTICLE I.—CopE or Ctvin PRocepuRE

PERSONAL SERVICE OF THE SUMMONS.

§ 425.

Summons; when and by whom served.

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 plaintiffs 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 plaint-
if?s attorney, with reasonable diligence.

This section was taken from, and is substantially the same
as, section 133 of the Code of Procedure. The words, “ ex-
cept where it is otherwise specially prescribed by law,” how-
ever, are new.

SERVICE BY PRIVATE PERSON.

The service of asummons by a private person, when prop-
erly made, is as valid and effective, as a service by a sheriff.

Mills v. Corbett, 8 How. Pr. 500.
2 PERSONAL SERVICE OF SUMMONS.

The only distinctions made in respect to the service by per-
sons in an official or private capacity, relate to the character of
the proof required, the right to a fixed compensation, and lia-
bility for negligence.

1 Wait’s Pr. 508.

In making a service, a private person 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 service.

Rule 18, Supreme Court.

A person who has a process to serve, has no authority to
strike the name of a defendant from a summons and insert
another name in the place.

B’d of Com’rs, etc., v. Sitzen, 1 City. Ct. R. 374.

Where the defendant is served with process by the plaintiff
personally, such service is a mere irregularity, which cannot be
taken advantage of after judgment.

Myers v. Overton, 2 Abb. 3844; §. C.4E. D. Smith, 428.

Hunter v. Lester, 10 Abb. 260; S. C. 18 How. Pr. 347.
Messenger v. Messenger, 12 W’k. Dig. 368.

And where a person, not an officer, was deputized by a sher-
iff, had the same name as one of the plaintiffs, such service was
held invalid, as presumably made by one of the plaintiffs.

Filkins v. O’Sullivan, 79 Ill., 524,

No service of a summons shall be made by any person, who
is less than eighteen years of age.
Rule 18, Supreme Court.

The service of a summons by a constable, must be treated as
a service by a private person, as he is not an officer of a court
of record.

SERVICE BY SHERIFF.

It was formerly held, that a sheriff who was plaintiff could
serve his own summons.

Bennett v. Fuller, 4 Johns. 486.
SERVICE BY SHERIFF. 3

It is questionable whether he can do so now.

Code of Civil Procedure, § 172.
Mills v. Young & Halstead, 23 Wend. 314.
And see Carpenter 2. Stillwell, 11 N. Y. 67.

If the sheriff is a party to the action, he is disqualified to
serve the process, and service may be made by the coroner.

Code of Civil Procedure, § 172.
Knott v. Jarboe, 1 Metc. 504.

And this is so, 1f the under sheriff or deputy sheriff is a
party, because the sheriff 1s responsible for his deputy’s acts.
Minott v. Vineyard, 11 Iowa, 90.

Graves v. Smart, 75 Me. 295.
Gage » Goffam, 11 Mass. 181.

Where a process is handed to a sheriff to serve, such service
is in the line of his official duty, and if he fail or neglect to
perform such duty, or to make the proper return, the party enti-
tled to have these acts done, may serve on him a notice to re-
turn such process within ten days, or show cause at a special
term. why an attachment should not issue against him.

Rule 6, Supreme Court.

The sheriff is liable to the plaintiff for any damage sustained
by him, by reason of any neglect in making the service, or the

proper return.
Code of Civil Procedure, &§ 425, 102.

Ledyard v. Jones, 7 N. Y. 551.

Service of the summons by the sheriff in an official capacity,
is good 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.

F L. and T. Co. v. Dickson, 9 Abb. 61; 8. C. 17
How. Pr, 477.

Thurston v. King, 1 Abb. 126.
Morrell v. Kimball, 4 Abb. 352.

A sheriff is entitled to prepayment of his fees for the service
of a summons and complaint, but if he serves them without
4 PERSONAL SERVICE OF SUMMONS.

prepayment, he cannot retain them, and refuse to make a re-
turn, because his fees are not paid.

Wait v. Schoonmaker, 15 How. Pr. 460.
SERVICE BY CORONER.

Where the sheriff is a party defendant to any suit, all pro-
cess in such suit, may be executed by the coroner.

Holbrook v. Brennan, 7 Dai. Reg. 757.
Carpenter »v. Stilwell, 11 N. Y. 67.

The Code, also, provides, that in such an action, the coroner
has all the power, and is subject to all the duties of a sheriff,
in a cause to which the sheriff is not a party, except as other-
wise specially prescribed by law.

Code of Civil Procedure, § 172.

§ 426.

How personal service of summons. made upon a natural
person.

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 cour-
teen 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
acommittee has been appointed, to the committee, and
also to the defendant in person.

3. If the action is against a sheriff, for a cause speci-
fied 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
SERVICE OF COPY. 5

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.

This section is founded upon section 134, subds. 2, 8 and 4
of the Code of Procedure.

The first subdivision of that section relates to service upon a
corporation, the provisions in respect to which are embraced in
section 431 and section 482, post.

The words “ personal service,” have been adopted in this and
the succeeding sections, in order to correspond to several other
statutory provisions, where they are used for a specific purpose.

Throop’s Code, § 426, n.

By the Code of Civil Procedure, the words, “within the
State,” have been inserted, in the first sentence, and the word,
“infant,” has been substituted for ‘ minor.”

In the second subdivision of this section, the words, “incom-
petent to manage his affairs, in consequence of lunacy, idiocy,
or habitual drunkenness,” have been substituted for the words,
“of unsound mind, or incapable of conducting his own affairs
in consequence of habitual drunkenness.”

Subdivision three was inserted by the Laws of 1879, chap.
542.

Subdivision four reads substantially the same as in the Code
of Procedure.

SERVICE OF COPY.

The copy of the summons left with the defendant should be
an exact counterpart of the original; but a trifling omission of
a word or letter, not altering the sound, sense or meaning of
the process, will not make the service irregular.

Sutton . Burgess, 1 C. M. & R. 770.

It is sufficient, if the copy summons published is substan-
tially a correct copy of the original. A literal and exact copy
in every respect is not requisite. The omission of unnecessary
words, cannot vitiate the proceedings.

Van Wyck »v. Hardy, 39 How Pr. 392; aff’g 20
How. Pr. 222,
6 PERSONAL SERVICE OF SUMMONS.

A variance in the copy served, whether of process, or of
papers, is not a ground of objection, if the party serve’ cannot
be misled or prejudiced by the mistake.

Union Furnace Co. v. Shepherd, 2 Hill. 413.
WRONG COPY.

Where the summons served on defendant, appears to be the
original summons, when it should have been described as the
amended summons, and is in fact the amended summons,
the service must be set aside.

People v. G. W. 8. 8. C., 4 Law Bull. 64.

As to service of the original surnmons, instead of the copy,

see
Adams », Adams, 9 At. Rep. 100; 8. C. 11 E. Rep.

128.

SUBDIVISION ONE.

To constitute a personal service of a summons, upon a
defendant, who is an infant under the age of fourteen, there
must be a delivery of a copy of the summons, within the state,
both to the infant, and to his father, mother, guardian or other
person specified; service on the infant alone, or upon one of
the persons specified, is not sufficient.

Ingersoll v. Mangam, 84 N. Y. 624; Aff’g 24 Hun,
202.

Bellamy v. Guhl, 62 How. Pr. 460.

Home Ins. Co. v. Head, 30 Hun, 407.

See Mace v. Scott, 17 Abb. N. C. 100.

Syracuse Sav. B’k v. Burton, 6 Civ. Pro. 220.

Gotendorf v. Goldschmidt, 88 N. Y. 113.

Dexheimer v. Hamburger, Dai. Reg., May 6, 1897,

Moulton v. Moulton, 15 N. Y. State R. 158.

Hemmer 2. Wolfer, 11 N. E. (Ill.) 885.

Service on a minor, by giving a copy to his mother, is invalid,
and is not cured by the appointment of a guardian ad litem.

Hogle v, Hogle, 17 N. Y State rR. 580.

It is no answer to the objection, that the statute has not been
complied with, in respect to the mode of service, that the infant
WRONG COPY. 7

is of such tender years, that he would have derived no benefft
from the service, if made.

Ingersoll v. Mangam, 84 N. Y. 624,

SUBDIVISION TWO.

Service of asummons should be upon the defendant him-
self, and if he has a committee, also, upon the committee.
Heller v. Heller, 6 How. Pr. 194.
Soverhill v. Dickson, 5 How. Pr. 109. -

Rogers v. McLean, 10 Abb. 309.
Rogers v. McLean, 11 Abb. 456.

Service of a summons upon one, with whom a person of un-
sound mind, resides, is not a good service.

Heller v. Heller, 6 How. Pr. 194,

The committee of an infant lunatic, residing without the
State, appointed under the laws of another State, may apply to
the court in an action in this State, for the appointment of a
guardian ad litem for such infant lunatic. Personal service on
such infant lunatic is not necessary.

Rogers v. McLean, 11 Abb. 440; aff’d, 34 N. Y. 536;
rev’g 10 Abb. 306.

Where the judgment of the court, determining that a person
is non compos mentis, is in force, and there is no committee, the
plaintiff may apply to the court for leave to sue, or, perhaps,
may bring an action without such leave.

Sanford v. Sanford, 62 N. Y. 557.
See Soverhill v. Dickson, 5 How. Pr. 109.

SUBDIVISION THREE.

Before the Code was amended in 1879, a suit could only
be commenced against the sheriff by personal service of the

Summons.
Sherman v. Conner, 16 Abb. N. 8. 896.

Original Act, Code of Civil Procedure, § 426, subd. 3.
8 PERSONAL SERVICE OF SUMMONS.

When a sheriff has an office in a city or village, where the
county courts are held, delivery of a summons at such office
to a person in charge, is a good service, although the sheriff
has omitted to file a notice of the place in the county clerk's
office, as required by statute; he cannot, by omitting to file
notice, debar a suitor of the right to serve a summons, as pro-
vided by this section.

Dunford v. Weaver, 84 N. Y. 445; aff’g 21 Hun, 849.

As to the application of this provision to coroners, when the
sheriff is a party, qucere.

See Manning v. Keenan, 73 N. Y. 46.
Code of Civil Procedure, § 172,

SUBDIVISION FOUR.

Service, how made.

In service of process, service means, serving the defendant
with a copy of the process, and showing him the original, if he
desires it.

Goggs v. Huntingtower, 12 M. & W. 502.
Williams v. Van Valkenburg, 16 How. Pr. 152,

A copy of the summons must be delivered to, and left with

the defendant.
Rule 18, Supreme Ct.

If a paper is taken back, from one to whom it was delivered,

by the party serving it on another person, the first delivery is
no service.

Earll v, Chapman, 3 E. D. Smith, 216.

Mather v. Parsons, 32 Hun, 338.

There must be a personal service. Where the summons was
handed to the father, proof that it afterwards came into the
hands of the son, is insufficient to sustain a judgment against
the son.

Williams », Van Valkenburg, 16 How. Pr. 144.
Overruling, Anonymous, 4 How. Pr. 112.
SERVICE BY VIOLENCE. 9

A mere manual delivery of the summons is not good ser-
vice, unless the summons be left with the defendant,

Beekman v. Cutler, 2 Code R. 51.
Niles ». Vanderzee, 14 How. Pr. 547.

Where the defendant, upon being served with the summons
and complaint, voluntarily hands them back, it is the duty of
the person making service, to offer to leave copies, or to ac-
quaint the defendant with his rights.

Beekman v. Cutler, 2 Code R. 51.

Where a person refuses to receive the summons, the person
making the service should inform him of the nature of the
papers, and of his purpose to make service of them, and lay

them down at any appropriate place in his presence.

Davison v. Baker, 24 How. Pr. 39.
See Petrie ». Van Rensselaer, 2 How. Pr. 94.

1. Service, when sufficient,

Any service of a summons, as a general rule, is deemed
sufficient, which renders it reasonably probable, that the party
proceeded against will be apprised of what is going on against
him, and have an opportunity to defend; and so long as this
tule is not violated by a form of service prescribed by the
legislature, no constitutional right of the party served is

invaded,
Hiller v. B. & M. R. R. Co., 70 N. Y. 228.

2. Service by violence.

Where the service is made by violently thrusting the papers
upon the person of the defendant, it 1s void, although the per-
son making the service may have stated the nature of the
papers, and the person upon whom they were intended to be
served, refused to receive them. A person or officer has no
right to commit an assault and battery upon an individual, in
trying to serve the papers upon him.

Davison v. Baker, 24 How. Pr. 39.
2
10 PERSONAL SERVICE OF SUMMONS.

Where, however, a defendant refused to receive a process, it
was held, that laying it upon his shoulders was good service.

Bell v. Vincent, 7D. & R., 233.

There must be a personal service, even though the defendant
attempts to elude the service ; it should be delivered or offered
to him within his reach, or laid down within his reach.

Van Rensselaer v. Petrie, 2 How. Pr. 94.
Van Rensselaer v. Palmatier, 2 How. Pr. 24.

A service of a process, or order, 1m a civil action, made by a
private person by wrongfully entering the house of the person
served, is legal and will be set aside.

Mason v. Libbey, 1 Abb. N. C. 354.

8. C. 51 How. Pr. 436.
See Hager v. Danforth, 20 Barb. 16.

Rev’g 8 How. Pr. 485.

3. Service by fraud.

Any trick, or device, which deprives the defendant of an
authentic and fair notice that an action has been commenced,
and fails to notify him of the time allowed to prepare and inter-
pose a defense, is a fraud, upon the spirit and intent of the
statute, and on the rights of the party.

Bulkley v. Bulkley, 6 Abb. 307.

As, putting the defendant in the unknown possession of a
summons, as she was about to enter upon a sea voyage, which
was disguised or enveloped, so as to conceal from her the
knowledge which it was the intent of the law should be com-
municated, is not a good service; and the subsequent discovery
by the defendant, of the contents of the summons, when at sea,
is not to be deemed a good service.

Bulkley v. Bulkley, 6 Abb. 307,

When the summons in an action is not legally served, the
court has no jurisdiction of the defendant, and, in such case,
all proceedings based on the pretended service is void.

Bulkley v. Bulkley, 6 Abb. 307.
SERVICE BY FRAUD. 11

The court acquires jurisdiction of the defendant by the per-
sonal.service of process upon him.
Prentiss v. Cornell, 31 Hun, 167.
Bayard v. Scanlon, 1 City Ct. R. 487.
Hanley v. Brennan, 19 Abb. N C. 187.

Crippen v. Culver, 18 Barb. 428.
Sternberg v. Schoolcraft, 2 Barb. 183.

It is the service of the summons or process intended to bring
‘defendant into court, which gives jurisdiction; not the service
of the complaint or other pleading.

Ballard v. Bancroft, 81 Geo. 503.
Dew v. Cunningham, 28 Ala. 466.

There is no way of bringing a party into court, and within
its jurisdiction, against his will, but by service of process.

Akin o. A. N. R. R. Co., 14 How. Pr. 887.
Treadwell v. Lawlor, 15 How. Pr. 3.

Where a party has been inveigled within the jurisdiction by
a trick, for the purpose of affecting service of a summons upon
him, the service will be set aside.

Metcalf v. Clark, 41 Barb. 45.

Snelling v. Watrous, 2 Paige, 314.

Carpenter v. Spooner, 2 Sandf. 716.

Baker v. Wales, 45 How. Pr. 187.

Lagrave’s Case, 14 Abb. N. S. 344, n.

Goupil v. Simonson, 3 Abb. 474.

Wyckoff v. Packard, 20 Abb. N. C. 420.

Chubbuck v. Cleveland, 35 N. W. Rep. 362; S. C. 37
Minn. 466.

Van Horn Bros. v. Gt. Western M fg. Co., 15 Pac. R
562; S. C. 37 Kans. 523

But such service is good, where the process is issued in favor
of a person who did not participate in, or perpetrate, the fraud.
Lagrave’s Case, 14 Abb. N. S. 344, ».

Adrience v. Lagrave, 15 Abb. N. 8. 275.
See Browning v. Abrams, 51 How. Pr. 178.

A party cannot avail himself of process that can only be ren-
dered serviceable, as a triumph of his fraud.
12 PERSONAL SERVICE OF SUMMONS.

Lagrave’s Case, 14 Abb. N. 8. 344, n.

Adrience v. Lagrave, 15 Abb. N. 8, 275.

Snelling v. Watrous, 2 Paige, 314.

Carpenter v. Spooner, 2 Sandf. 716.

Metcalf v. Clark, 41 Barb. 45.

Benninghoff v. Oswell, 37 How. Pr. 2385.

Williams ». Bacon, 10 Wend. 636.

Smith v. Meyers, 1 T. & C. 665.

4t., etc., Tel. Co. » B., etc., R. R. Co., 46 Super.
Ct. 408.

As, where he improperly detained a party on criminal pro-
cess, until civil process could be served.

Benninghoff v. Oswell, 87 How. Pr. 235.

Service of process, effected by plaintiff's requesting a debtor
to come to his office for the purpose of settling a claim, but
with the undisclosed intent that, if he does not come to terms,
he shall be served with process, is effected with deceit, and will
be set aside on motion.

Baker v. Wales, 14 Abb. N. S. 381.

At., etc, Tel. Co. v. B., ete., R. R. Co., 46 Super.
Ct. 408: modified, 87 N. Y. 358.

Where a defendant residing in another district, is enticed
and induced to come into the district, where the plaintiff re-
sides, by means of a forged telegram, or other deceptive contri-
vance on the part of the plaintiff, for the purpose of obtaining
service of process upon him there, and he is so served through
such improper means, the service is illegal and should be set
aside, and the process dismissed.

Steiger v. Bonn, 59 How. Pr. 496.

So, also, where the attorney’s clerk notified the defendant,
that he would meet him ata specified time and place within
the jurisdiction, and on attending, supposing some one desired
a business interview, was served with the summons.

Wyckoff v. Packard, 20 Abb. N. C. 420.

Service on a person at Castle Garden, New York city, where
he has been obliged to land on his arrival in this country, in
TIME OF SERVICE. 13

accordance with Federal laws, is not service obtained by fraud
or duress, so as to justify setting it aside.

Ziporkes v, Chmelniker, 15 N. Y. State R. 215.

TIME OF SERVICE.

There is no specified time, within which a summons must be
served, unless it is otherwise provided by the attorney sub-
scribing the summons. The plaintifi’s attorney may, by an
indorsement on the summons, fix a time withia which the ser.
vice thereof must be mace, and where that is done, the service
cannot be made afterwards.

The Code simply directs, that where the sheriff makes the
service, the summons shall be served, and returned with
reasonable diligence.

Code of Civil Procedure, § 425.

It may be served at any hour of the day or night. In this
respect, there is a distinction between services of notices, and

of process.
Priddle », Cooper 1 Bing. 66.
Upton v. McKenzie, 1D &R 172.
Weyburn » Neale, 2 Burr 813.

1. Service on Sunday.
Service of a summons on Sunday is utterly void.

Field v. Park, 20 Johns 140.
Van Vetchen » Paddock 12 Johns. 178,
Vanderpoel v. Wright, 1 Cow. 209.
See Pulling » People, 8 Barb. 386.
Rob v. Moffat 3 Johns. 257,
Story » Elliot, 8 Cow 28.

The law was, until recently, that serving a process on Sun-
day, subjected the party making the service, to damages, at the
suit of any party aggrieved.

3 R. 8. (vth Ed.), 1975, § 69.

But this statute has been repealed.

Laws of 1886, chap. 598.
8R S (th Ed.), 2224,
14 PERSONAL SERVICE OF SUMMONS.

2. Service on Saturday.
Formerly process could not be served on Saturday on per.
sons who observe that day as a Sabbath,

Laws of 1839, chap. 367
Hastings v. Farmer, 4.N. Y. 296.
Maxon v. Annas, 1 Den. 204.

But this law has been repealed, and the prohibition confined
to process issuing out of a justice’s court.
Laws of 1847, chap. 349, § 4.

3R. 8 (%th Ed.), 1976.
Marks » Wilson, 11 Abb. 87.

The fact that process was served on Saturday does not render
the judgment void.
Marks v. Wilson, 11 Abb. 87.

3. Service on half-holiday.

The act of 1887, chap. 289, making Saturday, after 12 m., a
half-holiday for certain purposes, does not prevent the service
of papers, or the execution of writs, in legal proceedings on
that day, or any part of it.

Nichols » Kelsey, 20 Abb. N. C. 14.

It has been held, however, that where the last day for service
of a pleading falls on Saturday, a half-holiday after twelve
o'clock noon, a party has the following Monday in which to.
serve his pleading.

Reynolds v. Palen 20 Abb. N.C. 11.
Contra, Fries v. Coar, 19 Abb. N. C. 267.

4. Service on election day.

Service of a summons on an elector, on an election day, is a.

void service.
Meeks v. Noxon, 1 Abb 280; S. C.. sud. nom,
Weeks v. Noxon, 11 How Pr. 189
Bierce v. Smith, 2 Abb 411
In re Election Law, 7 Hill 194.
Wheeler v. Bartlett, 1 Edw. 323.
Hastings v. Farmer, 4 N. Y. 286.
PLACE OF SERVICE. 15

The Revised Statutes provide, that whenever an election
shall be held in any city or town, no declaration by which a
suit shall be commenced, or any civil process or proceeding in
the nature of a civil process, shall be served on any elector
entitled to vote in any such city or town, on the day on which
such election shall be held.

1B. S. (8th ed.), 410.

This statute does not apply to charter elections.

‘ Wheeler v. Bartlett, 1 Edw. 323.
Commented on, Meeks » Noxon, 1 Abb. 280.
See. also, In re Election Law, 7 Hill. 194.

5. Service on day of town meeting.

Whenever a town meeting shall be held in any town, no:
civil process shall be served in such town, on any elector,
entitled to vote thereim, on any day during which such town
meeting shall be held.

2R.8 (8th ed ), 882,

Service of a summons on any day prohibited by statute is
void, and has no effect as the commencement of an action.

Hastings v. Farmer, 4 N. Y. 293.

However, in the absence of any statutory restrictions, the:
service of a summons upon any day, will be valid.

PLACE OF SERVICE.

1. Service within territorial jurisdiction.

The service of the summons must, with the exception of
the cases specified in section 438, be made within the territorial
jurisdiction of the court from which it issues.

Litchfield v. Burwell, 5 How. Pr. 341.
Fiske v, Anderson, 12 Abb. 8.
Morrell v. Kimball, 4 Abb. 352.

Tf a defendant whose residence is out of the State, be served
with process while temporarily in the State, such service will
confer complete jurisdiction over his person.
16 PERSONAL SERVICE OF SUMMONS,

See Alley . Caspari, 14 At. Rep. 12.
Smith v. Gibson, 3 So. Rep. 321.

Service of, or the admission of the service of process out of
the State, is ineffectual to give the court jurisdiction, in any
judicial proceeding, in personam.

Litchfield v. Burwell, 5 How. Pr. 341.

Hulburt ». Hope Mut. Ins. Co., 4 How. Pr. 275; aff’d,
4 How. Pr. 415.

Cook v. Farnam, 21 How. Pr. 287.

Dunn v. Dunn, 4 Paige, 425, .

McCauley v. Palmer, 9 Civ. Pro. 393.

See Brooklyn T. Co. » Bulmer, 49 N. Y. 84.

Howell v. Manglesdorf, 33 Kans. 194.

The service of asummons upon a non-resident in a foreign
State is void, except where served in compliance with an order

of publication.
Shepherd v Wright, 35 Hun, 444.
See Hamburger v Baker, 35 Hun, 455.

The courts of any State or country, can have no extra terri-
torial jurisdiction, so as to give notice, serve process, or charge
persons or property beyond their respective boundaries.

Huntley » Baker, 33 Hun, 580.

But where the court has jurisdiction of the subject matter,
any defect in the proceedings to bring a party into court, is
waived by his voluntary appearance in the action.

Dunn» Dunn, 4 Paige. 425.

Mahaney » Penman 1 Abb. 34.

Ballard » Burrowes, 2 Robt 206.

Allen v Malcolm, 12 Abb N. 8S. 388.

Cooley & K wv Lawrence & L., 12 How. Pr. 185.
Utica City Bk » Buel, 17 How Pr. 5038.

Phelps » Phelps, 6 Civ Pro. 120.

Chadwick v. Chase, 5 W’k. Dig. 589.

Code of Civil Procedure, § 424.

Unless pleaded.
Popfinger v. Yutte, 102 N. Y. 48,
PLACE OF SERVICE. 17

Unless such appearance is specially to protest against the
jurisdiction.
Allen », Malcolm, 12 Abb. N. S. 388.
Sullivan v. Frazee, 4 Robt. 616.
Seymour v. Judd, 2.N. Y. 464.
Cumberland Coal Co. ». Sherman, 8 Abb. 248,
O., etc., R. R. Co. v. Vt., etc., R. R. Co., 16 Abb.
N. S. 254.

There are exceptions to the rule requiring service to be made
within the territorial limits of the general jurisdiction of the court.
Where the cause of action is one of those specified in sec-
tions 982 and 983 of the new Code, the superior court and the
court of common pleas of the city of New York have jurisdic-
tion. In actions of that class, the summons may be served
upon the defendants in any county of the State.
Code of Civil Procedure, § 278.
Porter v. Lord, 4 Abb. 48; 8. C. 18 How. Pr. 254;

S. C. 4 Duer, 683.
See Popfinger v. Yutte, 102 N. Y. 43.

In an action against several persons jointly liable on con-
tract, when one of them resides in the city of New York, the
summons may be served in any county of the State.

Code of Civil Procedure, §§ 265, 278.

Porter ». Lord, 4 Abb. 48,
Bates 2, Reynoids, 7 Bosw. 685.

In all other cases, the defendants must all reside in that city,
or they must be personally served with process within the city,
or these courts will not have jurisdiction.

Porter ». Lord, 4 Abb, 43.
Zeregal v. Benoist, 33 How. Pr. 129.

Service of a summons in the marine court, outside of its
territorial jurisdiction, is absolutely void.

Goldman »v, Monds, 1 City Ct. R. 97.

Process issuing to officers of the counties bordering on Seneca
lake, may be served upon its waters.

1R.8 83,88.
3
18 PERSONAL SERVICF OF SUMMONS.

2. Service on man of war, ete.

A summons may be served on board a British man-of-war,
lying within the jurisdiction of the court.

1 Opin. Att’y Gen’l, 87.

The counties of Kings, Richmond and New York, for the
purpose of serving processes, civil or criminal, have concurrent
jurisdiction on the waters in the counties of Kings and Rich-
mond, south of the bounds of New York.

1R. S. 8th ed. 257.

Civil process issued under the authority of the State of New
York, against any person domiciled in that State, may be served
upon any of the said waters within the exclusive jurisdiction
of the State of New Jersey, unless such persons shall be on
board a vessel aground upon, or fastened to, the shore of the
State of New Jersey, or fastened to a wharf adjoining thereto;
or unless such person be under arrest.

1R.8 8th ed. 182.

SERVICE ON A COUNTY OR TOWN.

In actions against a county, or board of supervisors, the
summons shall be served on the chairman, or clerk of the
board of supervisors.

2K. 5S. 8th ed. 1077.

Where the summons is served on the clerk of the board of

supervisors, this is to be regarded as a personal service on the

board.
B.&8. L. R. R. Co. v. Sup’rs Erie Co., 48 N. Y. 100.

In all legal proceedings against towns by names, the sum-
roons and all other papers requiring to be served, shall be
served on the supervisor of the town.

2R. 8. 8th ed. 912.

SERVICE ON A CITY OR VILLAGE.

In an action against a city, the service of the summons may
be made upon the mayor. In the city of New York, service
SERVICE ON A PRISONER. 19

must be made, by service on either the mayor, comptroller, or
counsel to the corporation.

Code of Civil. Procedure, § 431. subd. 1.
Laws of 1860, chap. 379, § 4.

See People v. Sturtevant, 9 N. Y. 263.
Cited In rc Estate of Williams, 3 Law Bull. 96.

Provisions are made, in the charters of nearly all municipal
corporations, for the service of process upon the corporation.

SERVICE ON A PRISONER.

Service on a prisoner is valid. Subject to reasonable regu-
lations, which the sheriff may establish for that purpose, a
sheriff, jailor or other officer, who has the custody of a pris-
oner, must permit such access to him, as is necessary, for the
personal service of a paper, in an action or special proceeding,
to which the prisoner is a party, and which must be personally

served.
Code of Civil Procedure, § 182.

Phelps v. Phelps, 7 Paige, 150.
Davis v. Duffie, 8 Bosw. 617.

And, although the right of prosecuting an action is denied to
such persons, the liability to be sued still exists.

Davis v. Duffle, 8 Bosw. 617; aff’d 3 Keyes, 606; 4
Abb. N.S 478; rev’g 18 Abb, 360.

Morris v. Walsh, 14 Abb. 387; S. C. 9 Bosw. 636.

Slade v. Joseph, 5 Daly, 187.

Bonnell v. R., W. & O. RK. R. Co., 12 Hun, 218.

A sheriff or jailor, upon whom a paper in an action or special
proceeding, directed to a prisoner in his custody, is lawfully
served, or to whom such a paper is delivered for a prisoner,
must, within two days thereafter, deliver the same to the
prisoner, with a note thereon of the time of the service thereof
upon, or the receipt thereof by him. For a neglect or violation
of this section, the sheriff or jailor, guilty thereof, is liable to
the prisoner for all damages occasioned thereby.

Code of Civil Procedure, § 181.
20 PERSONAL SERVICE OF SUMMONS.

SERVICE ON HUSBAND AND WIFE.

Where the action is against the husband and wife, service on
the husband alone, will be a good service on both, unless relief
be asked out of the separate estate of the wife, in which case
she must be served.

Eckerson v. Vollmer, 11 How. Pr. 42.

Foot v. Lathrop, 53 Barb. 183; see S. C. 41 N. Y. 358,

Feitner v. Hoeger, 15 N. Y. State R. 377.

See Harlay v. Ritter, 18 How. Pr. 147; 8. C. 9 Abb.
400.

Code of Civil Procedure, § 450.

In the foreclosure of a mortgage made by a husband and
wife, on the husband’s land, to secure a husband’s debt, service
upon the husband is good service on both him and his wife.

Nagle v. Taggert, 4 Abb. N. C. 144.

In re Rollwagen, 48 How. Pr. 111.

Lathrop v. Heacock, 4 Lans. 2.

Brown 2, Patchin, 42 N. Y. 26.

But see White v. Coulter, 1 Hun, 356; S. C. 59 N. Y.
629.

Contra, Northrup v. Wheeler, 43 How. Pr. 122.

Where the summons in an action to foreclose a mortgage,
directed to the wife, is served upon the husband, the mortgagor,
it is his duty to appear and answer jointly for himself and wife.
Service of the summons upon the wife is only necessary, when
the proceedings are against her separate estate.

Watson » Church, 3 Hun, 80.
But see Code of Civil Procedure, § 450.
And, Janiski v, Heidelberg, 21 Hun, 489.

SERVICE ON WITNESS.
A resident witness is not privileged from the service of a
summons.
Pollard v. U. P. R. R. Co., 7 Abb. N. 8. 70.
Jenkins v. Smith, 57 How. Pr. 171.
Frisbie v. Young, 11 Hun, 474.
See Sheldon v. Wakeley, 3 Law Bull. 94.
But see Quaere in Person v. Grier, 66 N. Y. 124.
Contra Brett v. Brown, 18 Abb. N.S. 295
SERVICE ON WITNESS. 21

A non-resident party to an action here, who attends the
court as a witness, is privileged and exempt while here, and re-
turning home, from the service of a civil process for the com-
mencement of an action.

Merrill v. George, 23 How. Pr. 381.
Jenkins v. Smith, 57 How. Pr. 171.

Seaver v. Robinson, 3 Duer, 622.

Brett v. Brown, 138 Abb. N. 8. 296.

Person 2. Grier, 66 N. Y 124.

Lamkin v. Starkey, 7 Hun, 479

Frisbie ». Young, 11 Hun, 474,

Matthews v. Tufts, 87 N Y 570.

Grafton v Weeks 7 Daly 523

Tribune Assoc v. Sleeman 12 Civ Pro. 20.
N. R. C. Co. v Taussig, Dai Reg Mar 6, 1884
Sherman v. Gundlach, 37 Minn 118

First Nat. B’k », Ames, 89 N. W. Rep. 308.
Andrews v. Lembeck, 18 N. E. Rep. 488.

The rule in the above cases was applied to one coming within
the jurisdiction of the city court of Brooklyn, to attend a crim-
inal trial before a justice of the peace, as a witness.

Pritsch v. Schlicht, 5 N. Y. State R. 871.

And to a witness attending here, in a cause in the United
States circuit court.
Grafton v. Weeks, 7 Daly, 523.

Also to a non-resident creditor, attending proceedings in

bankruptcy.
Matthews v. Tufts, 87 N. Y. 568.

The privilege continues while the person is coming to the
place where the court is held, actually remaining there in
attendance at the court, and during such reasonable time there-
after, as is necessary for him to return home.

Sherman v. Gundlach, 37 Minn. 118.
In re Healey, 53 Vt. 694; S. C., 88 Am. Rep. 718.

And it was further held, that the fact of the witness remain-
ing within the jurisdiction during the time that the court which
he was attending was in session, and up to the time of its usual
22 PERSONAL SERVICE OF 3UMMONS.

adjournment, was not such an unreasonable delay as to prevent
his claiming the privilege of exemption, although the case in
which he attended had been adjourned upon the call of the

calendar.
Pope v. Negus, 14 Civ. Pro. 406.

This immunity, however, does not depend upon statutory
provisions, but is deemed necessary for the due administration

of justice.
Lamkin v. Starkey, 7 Hun, 479.
Person v, Grier, 66 N. Y. 124.
Matthews v. Tufts, 87 N. Y. 570.

Service of process cannot be made upon a non-resident of the
State, while he is attending court, although not as a witness.
Tribune Assoc. v. Sleeman, 12 Civ. Pro. 20.
Matthews v. Tufts, 87 N. Y. 570.

Overruling Jenkins v. Smith, 57 How. Pr. 171; and
Schlessinger v. Foxwell, 1 City Ct. R. 461.

But the mere service of a summons upon a non-resident,
when in another State for the purpose of taking a deposition to
be used, in an action to which he is a party in his own State,
is not within the rule as to exemption, and will not be set aside.

Greer v. Young, 23 Reporter, 683.

A person coming into the jurisdiction of the court upon
private business of his own, does not become privileged from
service of process, by the mere fact, that he is subsequently
subpoenaed as a witness.

Cohn v. Kaufman, Dai. Reg. Apr. 30, 1884.

Or, where he is in attendance as a witness, and goes some
half mile out of his way home, on his way, to a lawyer’s office,
to attend to other business.

Herron v. Stokes, 6 Ir. Eq. 125.

Or, where he stops at a coffee house at two or three o'clock
in the afternoon, on business, the court having adjourned at

one o clock.
Strong v. Dickenson, 1M, & W. 488.
SERVICE ON AMBASSADOR. 23

Or, where he went off his direct route, in returning home, to
attend his son’s funeral.
Chaffee v. Jones, 19 Pick. 260.

Or, by a delay of two weeks to attend to other business.
Shults v. Andrews, 54 How. Pr. 380.

Or, by a delay of two days after submission to learn the

result of the suit.
Clark ». Grant, 2 Wend. 257.

It has been held, however, that the witness did not lose his
privilege by stopping over one train.
Weber v. Boyer, 1 W. N. C. 154.

Or, where he stopped to inform the counsel of the opposite
party, that no steps would be taken in the action.
Salhinger v. Adler, 2 Rob’t, 704.

Or, stopped to dine with his attorney and witnesses in the
afternoon, the case having been tried early in the day.
Lightfoot v. Cameron, 2 W. Bl. 1113.

Or, by going to the office for one or two hours to sort his
papers, and then calling at a tailor’s shop.
Pitt ». Coombs, 5 B. & A. 1078.

Or, by going in an opposite. direction to his residence to
several places, within two hours after leaving court.
Selby v. Hills, 8 Bing. 166.

The witness waives any defect or irregularity in the pro-
ceedings to bring him into court, by his voluntary appearance

in the action.
Chadwick v. Chase, 5 W’k Dig. 589.
See cases ante, page 18.

SERVICE ON AMBASSADOR,

The privilege of an ambassador extends to immunity against
civil suits, sought to be instituted in a friendly country through
which he is passing, on his way to his diplomatic labors.
24 PERSONAL SERVICE OF SUMMONS.

Wilson v, Blanco, 14 N. Y. State R., 866.
Holbrook v. Henderson, 4 Sandf. 626.
See Wheaton’s Law of Nations, 240, 242.

§ 427.

Service of summons in certain cases of infancy, or lunacy,
etc., not judicially declared.

If the defendant is an infant of the age of fourteen
years, or upwards, or if the court has, in its opinion,
reasonable 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 defend-
ant’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.

This section is new. See section 2527 of the Code of Civil
Procedure.

Service upon the superintendent of an asylum pursuant to
an order of the court, in behalf of a person confined in the
asylum under a warrant, pursuant to the lunacy laws, but of
whose person and estate no committee has been appointed, is a
good service, and confers jurisdiction.

Bayard v. Scanlon, 1 City Ct. R. 487.

It seems, that when an application is made for the appoint-
ment of a guardian ad litem of a defendant, an infant over four-
teen years of age, and no order is made requiring service of the.
summons upon a third person in behalf of such defendant, it
will be presumed, that the court passing upon the application,
did not consider it necessary to order a further service.

Moulton v. Moulton, 17 N. Y. State R, 427%
See S.C. 15 N. Y. State R. 157.
WHEN DELIVERY TO LUNATIO DISPENSED WITH. 25

§ 428.

Service on incompetent person. Appointment of special
guardian ad litem.

In a case specified in subdivision first or second of sec-
tion four hundred and twenty-six of this act, where the
court has, in its opinion, reasonable ground to 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 defend-
ant, it may likewise make an order as prescribed in the
last section. Ina case specified in subdivision second,
the court may, as part of the same order, or by a sepa-
rate order, made in like manner and upon like ground,
at any stage of the action, appoint a special guardian
ad litem to conduct the defense for the incompetent de-
fendant, to the exclusion of the committee, and with the
same powers, and subject to the same liabilities, as a
committee of the property.

This is a new provision. See section 2527 of the Code of
Civil Procedure.

It is only where the interests of the committee are adverse to
those of the defendant whom he or she represents, or where
such committee is, for any reason, unfit to protect the rights of
such defendant, that a special guardian ad litem is contemplated.

Steele ». Hutton, 3 Law Bull. 99.

It has been held, that the court had power to appoint a
guardian ad litem for a lunatic defendant, although he was of
full age, and had not been judicially declared insane.

Hanley v. Brennan, 19 Abb. N. C. 186.

§ 429.

When delivery of a copy to a lunatic dispensed with.

Where the defendant has been judicially declared to
be incompetent to manage his affairs, in consequence of
4
26 PERSONAL SERVICE OF SUMMONS.

lunacy, and it appears satisfactorily to the court by affi-
davit, 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 de-
livery of a copy of the summons to a committee duly
appointed for him, is sufficient personal service upon the
defendant.

This section is new. It was deemed proper to dispense with
the personal service of a summons upon a lunatic, in a case
where such service will aggravate his disorder.

§ 430.

Designation by a resident, or a person upon whom to serve
a summons during his absence ; effect and revocation
thereof.

A resident of the State, of fullage, may execute, under
his hand, and acknowledge in the manner required by
law to entitle a deed to be recorded, a written designa-
tion 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 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 revo-
HOW MADE UPON DOMESTIC CORPORATION. 27

cation ; 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 per-
sonally upon the person making the designation, not-
withstanding the return of the latter to the United
States,

This is a new provision for the designation, by a person con-
templating a prolonged absence from the United States, of
another person, on whom a summons may be served for the
absentee, during his absence.

It was designed to regulate the service of a summons, or
other process on absentees who are residents of the United
States, where before, the application of various statutes, relating

to service by publication, etc, on such absentees, was very
doubtful.

Commissioners’ Report appended, Laws of 1876.
p. 302.

Where the absentee fails to avail himself of the provisions of
this section, he may be served by publication after six months’

absence.
Code of Civil Procedure, § 488, subd. 3.

§ 431.

How personal service of summons made upon a domestic
corporation.

Personal service of the summons upon a defendant,
being a domestic corporation, must be made by deliver-
ing a copy thereof, within the State, as follows:

1. If the action is against the mayor, 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,
28 PERSONAL SERVICE OF SUMMONS.

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 corpora-
tion, the cashier, the treasurer, or a director or manag-
ing agent.

The first subdivision of this section was taken from the laws.
of 1860, chap. 379, § 4.

Subdivision second is new.

Subdivision third is the same as subdivision one of section
184 of the Code of Procedure, with the exclusion of that part,
which relates only to foreign corporations.

DOMESTIC CORPORATION DEFINED.

A ‘“‘domestic corporation” is a corporation created by or
under the laws of the State; or located in the State, and cre-
ated by or under the laws of the United States, or by or pur-
suant to the laws in force, in the colony of New York, before
the 19th day of April, in the year 1775.

Code of Civil Procedure, § 3343, subd. 18.

Under this definition, a national bank located in this State,
would be a domestic corporation; but if located in another
State, it would be a foreign corporation.

A corporation organized under the laws of this State by the
consolidation of various foreign and domestic railroad com-
panies, 1s a domestic, and not a foreign corporation.

In re Sage, 70 N. Y., 220.

The municipal corporations of this State are not ‘domestic
corporations” within the above definition, or within the mean-
ing of that term as used in section 1778 of the Code of Civil
Procedure.

Moran v. L. I. City, 88 Hun, 122.
SERVICE ON OFFICERS OF THE CORPORATION.

The service must be on some one of the officers named.
Arken v. Q. R, etc., Comp., 6 Cal. 186.
WHO IS A MANAGING AGENT. 29

It is not required, that a service upon one of the officers men-
tioned in this section shall be made, while the officer is acting
officially, or engaged in the business of the corporation. A
service on those persons is authorized, because it is the duty of
the officer or agent, served, to communicate notice of the service
to the corporation, and that the corporation is thus reasonably
certain of receiving notice of the commencement of the action.

Pope ». T. H. C. M. Co., 87 N. Y. 141; aff’g 24
Hun, 238.

Service of a summons upon a domestic corporation, by deliv-
ering a copy thereof to its assistant treasurer, is insufficient.
Winslow »v. S. I., etc., R. R. Co., 15 Civ. Pro. 202.

Where there is no presiding officer, treasurer or secretary,
within the jurisdiction, service of process may be made upon
some other officer, under the direction of the court.

Tom v. M. E. Church, 19 Wend. 25.

Where the trustees of a religious corporation, and the officers
appointed by them, were elected and appointed in conformity
with the provisions of the statute, and are acting as such, they
are at least officers de facto., upon whom alone a valid service
of process can be made.

Berrian ». M. So., 4 Abb. 424; 8. C. 6 Duer, 682.

The service of process on an officer of a corporation, that has
been dissolved by a judgment, and a receiver appointed, does
not commence an action against the corporation. Such service
is void.

Hetzel v. T. 8. M. Co., 4 Abb. N. C. 41.

And where an officer has resigned, and his resignation has
been duly accepted, the subsequent service of a summons upon
him, will be inoperative, even though the resignation was ten-
dered for the purpose of avoiding service.

Erwin v. O. 8. M. Co., 22 Hun, 598.

WHO IS A MANAGING AGENT.

A managing agent, within the meaning of the statute, must
have the same general supervision and control.of the general
30 PERSONAL SERVICE OF SUMMONS.

interest of the corporation, as are usually associated with the
Flynn v. Hudson R. R. Co., 6 How. Pr. 308.

He must be a person who is engaged in the management of
the corporation, and whose agency extends to all the transac-
tions of the corporation, in distinction from the management of
a particular branch, or department of its business.

Brewster v. M. C. R. R. Co., 5 How. Pr. 183.

See Bank of Commerce v7. R. & W.R. R. Co., 10
How. Pr. 1.

The duty of a managing agent of a railroad company,
embraces the general and practical operations and business of
running its road, and involves the exercise of a wide discretion.

Sterett v. D. & R. G. R. Co., 17 Hun, 316.

A managing agent is one who is invested with general powers
involving the exercise of judgment and discretion, as opposed
to an ordinary agent, who acts in an inferior capacity, and under
the direction and control of superior authority, both in regard
to the extent of his work, and the manner of executing it.

Reddington v. M. L. & M. Co., 19 Hun, 406.

A division superintendent of a railroad corporation is a man-
aging agent.
R. H. & L.R. R. Co.» N. Y., ete., R. R. Co., 15.
N. Y. State R., 686.

.

A person who has only the charge of selling tickets for a
railroad corporation, is not a managing agent.

Doty v. M. C. R. R. Co., 8 Abb. 427,

Neither is a “baggage master” in the employ of a railroad
corporation. He is not such a managing agent, as the statute

contemplates.
Flynn v. Hudson R. R. Co., 6 How. Pr. 308.

An assistant secretary of a foreign railroad company, whose
duty consists in making such records as he may be expressly
directed to make, is not a managing agent, within this section,
WHO IS A MANAGING AGENT. 3k

authorizing a service upon the corporation by the delivery of a
summons to a managing agent.

Sterett » D. & R. G. R. Co., 17 Hun, 316.

Where the president and superintendent of a street railway
was employed by the defendant, the president of a steain rail-
road company, to superintend the running of horse cars on a
portion of the latter's road, not then completed, and who had
no authority to make contracts for the defendant, except to
purchase horses and feed, nor had any control over, or knowl-
edge of the affairs of the defendant, or its books, and whose
employment was to continue during the said president's pleas-
ure, it was held, that a summons in an action against the de-
fendant, could not be served upon him, as its managing agent.

Emerson v. A. & O. L. R. R., 13 Hun, 150.

Where a foreign corporation, having its office and place of
business in California, where its president, secretary and treas-
urer resided, had no place of business in New York, except a.
branch office, at which its stock could be transferred and assess-
ments be received for transmission to California, it was held,.
that one who was employed to take charge of this office, and.
to transfer stock and receive and transmit assessments, as
directed by the defendant's officers, but who had nothing to do
with the general business of the company, or with its books.
and papers, was not a managing agent of the corporation.

Reddington v. M. L. & M. Co., 19 Hun, 405.

An agent of an insurance company, properly appointed and
qualified to procure and effect insurance for the company, re-
siding at a different place from that where the principal office
of the company is located, is such a managing agent, that legal
service of a summons and complaint, against the company, may
be made by serving on him.

Bain v. Globe Ins. Co., 9 How. Pr. 448,

These services of the summons must be held strictly within
the statute limitation, or otherwise great fraud may be perpe-
trated by attempting to get jurisdiction of a corporation by ser-
82 PERSONAL SERVICE OF SUMMONS.

vice upon some mere employee, who has nothing to do with
the general management of the corporation.

Emerson v, A. & O. L. R. R. Co., 13 Hun, 150.

Where it is uncertain, whether or not, the party served, is or
is not a managing agent of the defendant, the burden is on the
defendant to show the relation to it, of the party served, and
that he is not a managing agent.

Donadi v. Mut. Ins. Co., 2 E. D. Smith, 519,

If process, is served on one not a managing agent, the cor-
poration may move at once, to set it aside.

Emerson v. A. & O. L. R. R. Co., 18 Hun, 150.

§ 432,

How personal service made upon a foreign corporation,

Personal service of the summons, upon a defendant,
being a foreign corporation, must be made 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.

2. Toa person designated for the purpose by a writing,
under the seal of the corporation, and the signature of
its president, vice-president or other acting head, accom-
panied 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 a 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 resi-
dence, to some other place within the State, by a writing
executed by him, and filed in like manner. The secre-
HOW MADE UPON FOREIGN CORPORATION. 33

tary of state may require the execution of any instru-
ment, 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 designa-
tion so filed, accompanied with a certificate that it has
not been revoked, is presumptive evidence of the execu-
tion 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 person designated, nor an officer specified in subdi-
vision first of this section, can be found with due dili-
gence, 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.

This section is a substitute for the previous legislation, re-
specting the service of a summons upon foreign corporations.
The provisions upon which it is based, and which it supersedes,
reads as follows:

“The summons shall be served by delivering a copy thereof,
as follows:

1. If the suit be against a corporation, to the president or
other head of the corporation, secretary, cashier, treasurer, a
director or managing agent thereof; but such service can be
made in respect to a foreign corporation, only when it has prop-
erty within this State, or the cause of action arose therein, or
where such service shall be made within this State, personally
upon the president, treasurer, or secretary thereof.

Code of Procedure, § 134, subd. 1.

§ 1. Every insurance, and other corporation created by the
laws of any other State, doing business in this State, shall
within thirty days after the passage of this act, designate some
person residing in each county where such corporation transacts
business, on whom process issued by authority of, or under any
law of this State may be served; and within the time afore-

said shall file such designation in the office of the secretary of
5
34 PERSONAL SERVICE OF SUMMONS.

state; and a copy of such designation, duly certified by said
officer, shall be evidence of such appointment; and it shall be
lawful to serve on such person so designated, any process issued
as aforesaid; such service shall be made on such person in such
manner as shall be prescribed in case of service required to be
made on any resident of this State, and such service shall be
deemed a valid service thereof.

§ 2. In all cases where such designation shall not be made as
aforesaid, and such foreign corporation cannot be served with
such process according to the present provisions of law, it shall
be lawful to serve such process on any person who shall be
found, within this state, acting as the agent of said corporation,
or doing business for them..

§ 3. Service made in accordance with any provisions of this act
shall be as effectual as if made in the form and manner required
by law, and shall be deemed a full compliance with any statute,
requiring personal, or other service to be made.

Laws of 1855, chap. 279, §§ 1-3.

UNDER CODE OF PROCEDURE, ETC.

Under the above act, the service of a summons, here on the
general solicitor or counsel of a foreign corporation was held a
good service, where the corporation failed to designate a person
residing in the State, on whom service of papers could be made.

Clews ». R. R. I. & 8. L. R., 49 How. Pr. 117.
De Bemer v. Drew, 89 How. Pr., 478.

Also, that where a fire insurance company had designated an
agent, as provided by statute, it thereby submits itself to the
jurisdiction of the State courts having authority to act, and the
service of a summons upon such agent, gave the court jurisdic-
tion, so that it may render a valid judgment, capable of being
enforced upon any property of the corporation, within the juris-

diction.
Gibbs 2, Queen Ins. Co., 68 N. Y. 114.

Under the new Code, a service on a solicitor or counsel only
of the corporation, would not be a good service, where the cor.
UNDER THE CODE OF CIVIL PROCEDURE. 35

poration had failed to designate a person upon whom service

could be made.
Code of Civil Procedure, § 432, subd. 3.

Section 184 of the Code of Procedure, upon which this sec-
tion is based, simply provided a substitute for service by pub-

lication.
Bates v. New Orleans R. R. Co., 4 Abb. 72; 8. C. 18
How. Pr. 516.

UNDER THE CODE OF CIVIL PROCEDURE.

1. Definition of foreign corporation.
Any corporation, which does not come within the definition
of a domestic corporation, is deemed a foreign corporation.

Code of Civil Procedure, § 3348, subd. 18.

2. Legislature may regulate service.

It is for the legislature to determine what shall be a sufficient
service of process for the commencement of an action, subject
only to the limitation, that the service must be such, as may
reasonably be expected, to give the party proceeded against

notice.
Pope v. T. H. C. M. Co., 87 N. Y. 187.
See Gibbs v. Queen Ins. Co., 63 N. Y., 114.

It is within the power of the legislature to authorize suits
against foreign corporations, within the State, and to prescribe
the kind and mode of procedure in it.

Barnett ». C. & L. H. R. R. Co., 4 Hun, 116.

SUBDIVISION ONE.

A service within this State, upon the proper officer of a for-
eign corporation, is equivalent to personal service on a non-resi-
dent natural person. If such personal service cannot be made,
service may be made by publication against corporations in the
same cases, in which it can be made against non-resident indi-

viduals.
Barnett v. C. & L. H. R. R. Co., 4 Hun, 114.

Service of-a summons upon a foreign corporation’s president,
m the city of New York, while he was passing through the
36 PERSONAL SERVICE OF SUMMONS.

State, with his family on his way to a watering place, in another
State, was held, a good service.

Pope v. T. H. C. M. Co., 24 Hun, 238; aff’d, 87 N,
Y. 187.

In order to render a service upon the president, secretary, or
treasurer of a corporation effectual, by the delivery of a copy
thereof to them within the State, it is not required that the
officer served, should be here in his official capacity, or engaged
in the business, or that it should have any property within the
State, or that the cause of action should have arisen within the

State.
Pope ». 'T. H. C. M. Co., 24 Hun, 238.
Gibbs v. Queen Ins. Co., 63 N. Y. 114, 181.
At. & P. Tel. Co. v, B. & O. R. R. Co., 46 Super.
Ct. 377.

Personal service on the president of a foreign corporation in
the city of New York, gives the superior court jurisdiction.
At. & P. Tel. Co. v. B. & O. R. R. Co., 46 Super. Ct.

3877.
On appeal, 87 N. Y. 355,

Individuals sued in their capacity of trustees, appointed by
a court of another State, over an insolvent corporation of such
State, and for acts done, as such trustees, stand upon the same
footing in this respect, as a foreign corporation. The court
cannot acquire jurisdiction of the persons of any such board of
trustees, by personal service of process within this State.

O., ete., R. R. Co. v. V., ete., R. R. Co., 16 Abb.
N.S. 249; aff’d 4 Hun, 712; and 63 N. Y. 176.

Service on one who was the president of a foreign corpora-
tion, after he has resigned, does not give jurisdiction.

Ervin v. Oregon 8. M. Co., 22 Hun, 598.

Where a foreign corporation has been deprived of its rights
and franchises, but not actually dissolved, service on one of its
officers is sufficient to give jurisdiction, and a receiver appointed
after such service will take title to property in this State.

Murray 2. Vanderbilt, 39 Barb. 140.
PROPERTY WITHIN THE STATE, 37

SUBDIVISION TWO.

The act of 1855, chapter 279, requiring foreign corporations
doing business within this State, to designate a person to re-
ceive service of process, and which was substituted by this sub-
division, merely facilitated the service in the class of cases of
which the court, already had jurisdiction.

Cumberland C. Co. ». Sherman, 8 Abb. 243; aff’d 20
How. Pr. 62.

After a company has filed with the proper officer, the name
of the person upon whom a process may be served, sending the
name of another agent to the secretary of state is not a revo-
cation of the first designation.

Turner v. F. Ins. Co. of Phil., 17 W’k Dig. 212; aff'd
93 N. Y., 634.

SUBDIVISION THREE.

1. Property within the State.

The question, as to whether or not the corporation has prop-
erty within the State, or whether the cause of action arose
therein, is important only where the corporation has failed to
designate a person upon whom service may be made, and ser-
vice has been made upon the cashier, a director, or the manag-
ing agent of the corporation.

Pope v. T. H. C. & M. Co., 24 Hun, 288.

The Code does not require any specific amount of property
to be found in this State, to justify an action against a foreign
corporation, There should be something from which the cred-
itor may have some chance of benefit.

Barnes v. M. & N. W. RB. RB. Co., 12 Hun, 126.

The object of allowing the action when that appears to be
the case, is to afford the creditor the means of applying its pro-
ceeds to the payment of the demand in suit.

Barnes ». M. & N. W. R. R. Co., 12 Hun, 126.
38 PERSONAL SERVICE OF SUMMONS.

The object of the law was to provide a substantial remedy,
and not a mere artifice or excuse, on which an action might
literally be made to depend, without any actual benefit to the
party prosecuting it.

Barnes v. M. & N. W. R. R. Co., 12 Hun, 126.

The right of property in the corporation must be present and
absolute, and not contingent upon the happening of some future

event.
Bates ». New Orleans R. R. Co., 4 Abb. 72.

The property intended under this subdivision, is property
liable to attachment.

Bates v. New Orleans R. R. Co., 4 Abb. 72; 8. C., 18
How. Pr. 516.

As to what constitutes property within the meaning of this

subdivision, see
Barnes ». M. & N. W. R. R. Co., 12 Hun, 126.

2, Where cause of action arises.

The service of a summons upon the defendant's directors while
temporarily in this State, is sufficient service, and a sufficient
commencement of an action, if the cause of action arose within
this State, although defendant had no property in the State.

Hiller v. B. & M. R. R. Co., 70 N. Y. 223.
Childs ». Harris M. Co., 104 N. Y. 480.

But the service of summons upon one of the defendant’s
directors, temporarily in this State, is not a sufficient commence-
ment of an action, the cause of action not having arisen here,
and defendant not owning any property here.

Gibbs v, Queens Ins. Co., 63 N. Y. 114.

A cause of action may be defined to be the right which a
party has to institute and carry through a legal proceeding.

Meyer v. Van Collem, 28 Barb. 280; S. C.'7 Abb. 222.

As to the meaning of the phrase, “the cause of action arose,”

see
Bank of Commerce v. R. & W. R. R. Co., 10 How. 1.
WHERE CAUSE OF ACTION ARISES. 39
Also as to discussion as to where a cause of action arises, see

Cumberland Coal Co. v. Sherman, 8 Abb. 249; 8. C
30 Barb. 165.

When stock was transferred upon the books of the defend-
ant, a railroad corporation, at its transfer agency in the city of
New York, in an action to recover the said shares of stock, with
the dividends that had been declared thereon, it was held, that
the cause of action arose in this State.

Toronto G, T. Co, ». C., B. & Q. R. R. Co., 32 Hun,
190.

Where one entered into the service of a foreign corporation,
to procure emigrants, to purchase and settle on defendant's
lands in another State, but, with the agreement, that he was to
occupy an office in the city of New York, it was held, that the
cause of action arose within this State.

Hiller v. B &M. R. R. Co., 70 N. Y. 228.

Where a foreign corporation sold to plaintiffs, who were doing
business in this State, certain agricultural implements, with an
agreement to indemnify and defend them from all prosecutions
because of any alleged infringement of any patent, in selling
the implements, provided notice was given to it, and it was
allowed to take charge of the case, an action having been com-
menced against plaintiff they notified defendant, and required
it to take charge of the defense: this it failed to do, and judg-
ment was rendered against plaintiff in that action. In an ac-
tion upon the guaranty, it was held, that the cause of action
arose in this State.

Childs v. Harris M. Co., 104 N. Y. 477.

Where the demand for which the action was brought, arose
upon written contracts for the payment of money, made, exe-
cuted, delivered and made payable in Canada, and all the labor
done and materials furnished, were under those contracts, and
upon work located in Canada, for a corporation created by the
laws of Canada, and existing there, except a small part which
was performed in this State, by virtue of said contracts, it was
40 PERSONAL SERVICE OF SUMMONS.

held, not to be a case where the subject of the action was situ-

ated in this State.
Campbeil v. St. L. R. R. Co., 18 How. Pr. 412.

Where parties reside and do business in New York city, and
in that place indorse and procure to be discounted a promissory
note payable in another State, such indorsement is a New York
contract, and governed by the laws of New York.

Artisans Bank ». Park Bank, 41 Barb. 399.

Where a promissory note made and dated in this State, and pay-
able here, was negotiated in the State of Connecticut, it was held,
that the laws of New York governed as to the defense of usury.

Jewell v. Wright, 80 N. Y. 259; 8. C. 27 How Pr.
481; rev’g 12 Abb. 55.

The plaintiff, a national bank organized and having a place
of business in New Orleans purchased, for value of defendant,
a Louisiana corporation, a draft on bankers in the city of New
York, payable to plaintiff's order, which was duly presented to
the payers at New York, and payment refused, whereupon, it
was duly protested, and notice given to the drawer; it was held,
in an action thereupon against the said bankers, that the cause
of action arose in this State.

Hibernia Nat. B’k ». Lacombe, 84 N. Y. 367.

Where a bill of exchange was drawn by the defendant, a rail-
road company, by its president, in Vermont, in which State the
company was chartered, payable four months from date at the
Exchange Bank in New York, and upon J. B,, treasurer of
the company in Boston, and accepted in Boston by J. B. as
treasurer, payable at the Exchange Bank in New York, and
endorsed by J. B., treasurer, and sold to the Bank of Commerce
in Boston, and payment demanded at maturity at the Exchange
Bank in New York, and refused, and the bill protested ; it was
held, that although the company could be treated as acceptor
of this bill, or maker of a promissory note, and sued without
presentment for payment at the Exchange Bank in New York,
yet the cause of action arose in this State.

Bank of Com. v. R. & W. R. R. Co., 10 How. Pr. 1.
WHO ARE MANAGING AGENTS. 41

Where a loan is made by one non-resident to anotner, out of
this State, and secured by a draft upon a person residing within
this State, the cause of action cannot be said to have arisen
within this State.

Western Bank 2. City Bank of Columbus, 7 How.
Pr. 238.

Where the parties being foreign corporations, make a con-
tract out of the State, and contemplate its performance in the
State, the cause of action thereon arises here, and the court has
jurisdiction.

Conn. Mut. L. A. Co. v C. C. & O.R R. Co., 41
Barb., 10, 8. C. 23 How. Pr. 180.

Bank of Commerce v. R. & W. R. R. Co., 10 How. 1.

Buckle v. Eckhart, 3 N. Y. 182.

The cause of action is the right to a remedy for a wrong, or
a breach of duty, and that right accrues, and the cause of action
arises, when and where the wrong or breach of duty was done

or suffered.
Cumberland ©. Co. v, Sherman, 8 Abb. 251

The cause of action arises when that is not done which ought
to have been done, or that is done which ought not to have
been done. The place where such acts are done, or are omitted,
is the place where the cause of action arises.

Hibernia Nat. B’k v. Lacombe, 84 N. Y. 367.

Toronto G. T. Co. ». C. B. & Q. R. R. Co., 32
Hun, 190.

3. Who are managing agents.

The Code does not specify the extent of the agency required,
to bind defendants by service of process, except that the per-
son upon whom the service is made, must be managing agent.

Palmer v. Penn. Co., 35 Hun, 371.

It is not necessary that an officer, who is served under this
sub-division, should have the general charge of the whole busi-
ness of the corporation; but if he be of sufficient character,
and rank in the corporation to make it reasonably certain that

6
42 PERSONAL SERVICE OF SUMMONS.

the corporation will be apprised of the service, it will be held a

sufficient service.
Palmer v. Penn. Co., 35 Hun, 369.
Hiller v, B. & M. R. R. Co., 70 N. Y. 224.
R. H. & L. R. R. Co. «. N. Y., ete., R. R. Co., 15
N. Y. State Rep. 686.

Were the rule to be established, that the agent must have
‘charge of the whole business of the corporation, the statute
would be a dead letter, for such agency seldom, if ever, exists.
‘The statute is satisfied, if he be a managing agent to any extent.

Palmer v. Penn. Co., 35 Hun, 371.

Where a foreign corporation avails itself of the privileges of
doing business in a State whose laws authorize it to be sued
there by service of process upon an agent, its assent to that
mode of service is implied.,

A foreign corporation consents to be amenable to suit by such
mode of service, as the laws of the State provide, when it in-
vokes the comity of the State for the transaction of its affairs,
it waives the right to object to the mode of service of process
which the State laws authorize.

Mer. M. Co. v. G. T. R. R. Co., 68 How. Pr. 459.
Layfayette Ins. Co. v. French, 18 How. (U. 8.) 404.
Railroad Co v. Harris, 12 Wall. 81.

Ex parte, Schoelenberger, 96 U. S. 369.

Service of process cannot be made on a passenger agent
whose sole duty it is to solicit travel for the defendant’s road,
although he may have been employed to effect a compromise
of plaintiff's claim.

Maxwell v. Atchison, etc., R. Co., 834 Fed. Rep. 286.

In a local action for penalties for stamping articles as pat-
ented, without license, recoverable only in the district where
the stamping is done, an agent of a foreign corporation, who
has the general management and control within the district of
the manufacturing business in the course of which the stamping
is done, is @ managing agent of the corporation, within the
meaning of this section.

H. S. M. Co. ». D. S. M. Co., 81 Fed. Rep. 294.
PROOF OF SERVICE, HOW MADE. 43

Compare the preceding with authorities on same question,
in reference to domestic corporations, page 29, ante.

§ 433.

Service of process, ete., to commence a special proceeding.

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 proceed-
ing 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.

Based upon the laws of 1855, chap. 279, § 4, 8 Edm., 685,
which was repealed by the laws of 1877, chap. 417

The service of notice of an application for an order, charging
@ person not a party to an action, but beneficially interested
therein, with the costs thereof, upon his attorney, is not a suffi-
cient service. There must be a personal service upon such

person.
Henry v. Derby, 11 Civ. Pro. 106.

§ 434.

Proof of service of summons, etc., how made.

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 admis-
sion, 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 per-
A4 PERSONAL SERVICE OF SUMMONS.

son, 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.

This section, excluding the last sentence, is substantially the
same as section 188 of the Code of Procedure, first and last
clauses, and subdivisions 1, 2 and 4.

The last sentence is new.

1. AFFIDAVIT OF SERVICE.

a. By whom made.

Where the clerk who made the service had left the State, a.
memorandum by him, and an affidavit of information derived
from him, were received as proof.

Jackson v. Howd, 8 Caines, 31.

But an affidavit of service of a summons, made by an attorney
and founded on information received from his clerk, who made
the alleged service, but without proof that the clerk knew the
person served to be the defendant, and that he left with him
the summons, etc., and without stating the place and manner
of service, was held insufficient, and judgment entered thereon
was without jurisdiction.

Spaulding v. Lyon, 2 Abb. N. C. 208.

b. Age.

Where personal service of the summons, and of the com-
plaint, or notice, if any accompany the same, shall be made by
any other person than the sheriff, it shall be necessary for such
person to state in his affidavit his age, or that he is more than
twenty-one years of age.

Rule 18, Supreme Ct. 5

Where the affidavit of service of summons by any person
other than the sheriff, does not allege that such person was over
AFFIDAVIT OF SERVICE. 45

eighteen years of age, a judgment by default cannot be sus-

tained.
Barney v. Vigoureaux, 17 Pac. R. 483.

The allegation as to the age of the person serving, must re-
late not merely to age, at the time of making the affidavit, but
must enable the court to see the required age at the time of

making service.
Peck ». Strauss, 33 Cal. 678.

ec. Time, place, and manner of service, etc.

It should state when, and at what particular place, and in
what manner he served the same, and that he knew the person
served, to be the defendant, mentioned and described in the
summons, as defendant therein; and, also, to state in his affi-
davit, that he left with defendant, such copy, as well as deliv-

ered it to him.
Rule 18, Supreme Ct.

Where the affidavit stated that the summons was served “‘on
or about” a certain day, it was held, not a sufficient proof of

service.
Hickey v. Yvelin, 4 Law Bull. 70.

An affidavit of service not specifying the date of service, was
held sufficient where the jurat was dated more than twenty
days previous to the entry of judgment.

Reed v. Catlin, 49 Wis. 686; S. C. 6 N. W. Rep. 826.

The court is bound to consider the service as made at the
time stated in the proof of it, after a motion to set judgment
aside because of alleged want of service, has been denied.

Weeks v. Merritt, 5 Robt. 610.

The provision requiring the affidavit to state in what particu-
lar place the service was made, has been held to be satisfied, by
a statement, that the service was made in a specified county of

the State.
Lewis v. Hartel, 24 Wis. 504.
Sayles v. Davis, 20 Wis. 302.
46 PERSONAL SERVICE OF SUMMONS.

And that it would be presumed in aid of the jurisdiction,.
that he was a resident thereof.

Pellier v. Gillespie, 67 Cal. 582; S. C. 4 Pac. R. 1137.

But if the county is mentioned and the State omitted, the
court can take judicial notice, that the county named is within

the State.
Zwickey v. Haney, 63 Wis. 464; 8. C. 28 N. W. Rep.
577.

An affidavit failing to state the place of service, as required
by statute, was held, fatally defective.

Weis 2. Schoerner, 53 Wis. 72; 8. C. 9 N. W. Rep.
794,

Where affidavits of service of summons by private persons.
fail to state, that a copy was left with defendants, judgment by

default is void.
Wilkinson 2. Chilson, 86 N. W. Rep. 836.

It must state that the copy was left with, as well as delivered

to, the defendant.
Beekman 2, Cutler, 2 Code R. 51.

Matteson v. Smith, 87 Wis. 333.
O’Sullivan v, Murphy, Law Times, Jan. 17, 1885.

And, where the service was made upon the defendant by a
delivery of the summons in the plaintiffs presence, and the
plaintiff took it away before defendant had read it, saying he
would attend to it, such service was held fraudulent, and in-
sufficient to sustain a judgment entered thereon

Mather v. Parsons, 32 Hun, 388.

Where the affidavit stated, that the deponent personally
served the summons by placing the writ on the ground, and
holding up the original, within twenty or thirty yards of de-
fendant, who had run away for the purpose of avoiding service,
it was held to be insufficient.

O'Sullivan v, Murphy, Law Times, Jan. 17, 1885.

d. In actions for divorce.

In actions for divorce, or to annul a marriage, or for separate
maintenance, the affidavit, in addition to the above require-
AFFIDAVIT OF SERVICE. 47

ments, shall state what knowledge the affiant had of the person
served, being the defendant and proper person to be served, and
how he acquired such knowledge.

Rule 18, Supreme Ct.

And, the court may require the affiant to appear in court, or
before the referee if a reference be ordered, and be examined in
respect thereto, and when service has been made by the sheriff,
may require the officer who made the same to be summoned
and examined in like manner.

Rule 18, Supreme Ct.

e. Kind of proof, +
When the statute says proof must be made, it means legal

proof.
People v. Sutherland, 81 N. Y. 1; rev’g, 16 Hun, 192.

The affidavit must show affirmatively a compliance with all
the requirements of the law, so definitely that an indictment.
could be maintained against the deponent, 1f it were not true.

McMillan v. Reynolds, 11 Cal. 372
Van Wyck v. Reid, 10 How. Pr. 366.

Where the affidavit was properly signed, but the name of
the deponent was omitted from the body of the affidavit, a
blank having been left for the purpose, it was held, that the
affidavit was sufficient.

People ex rel. Kenyon v. Sutherland, 81 N. Y. 1; rev’g.

16 Hun, 192.
f. Disputing the service.

The affidavit of service, inserted in the judgment-roll, where
judgment is entered against some of the debtors, is conclusive
upon the plaintiff, as to the time when the summons was served.

Burroughs v. Reiger, 12 How. Pr. 171.

But it is not conclusive upon the defendant.

Van Rensselaer v. Chadwick, 7 How. Pr. 287.
See cases cited, p. 50.
48 PERSONAL SERVICE OF SUMMONS.

Where doubt is thrown upon a defendant's denial of the
service of a summons upon him, a positive affidavit, upon file,
of the service must prevail.

Moulton v. De McCarthy, 6 Robt. 470.

Where, on motion to vacate a judgment for non-service of
the summons, it appears that the defendant has endeavored to
avoid service, the court will require satisfactory proof that the
affidavit of service is untrue.

Southwell v. Marryatt, 1 Abb. 218.

As to proof of service on conflicting affidavits, see
Hunter v. Lester, 10 Abb. 260.

g. Defective service, how cured.

Where the proof of service is defective, it may be supplied
and filed, nune pro tune.

Farmers’ L. & T. Co. v. Dickson, 9 Abb. 61.
See Kloepping v. Stellmacher, 7 Vroom., 176.
Coffee v. Gates, 28 Ark. 43.

2. SHERIFF'S CERTIFICATE OF SERVICE.
a. Proof by affidavit.

Where the sheriff serves the summons out of his own county,
the proof of service must be by affidavit.
Farmers’ L. & T. Co. v. Dickson, 9 Abb. 61; S. C. 17

How. 477.
Thebaut v. Canova, 11 Fla. 143.

And the proof of service, by a sheriff of a county of another
State, should also, be made by affidavit. His certificate is of
no greater effect in this State, than the certificate of a private

individual.
Thurston v. King, 1 Abb. 126.

Morrell v. Kimball, 4 Abb. 352.

No sufficient reason is perceived, why a sheriff should not be
allowed to make an affidavit, if he prefers, or the cireumstances

require it.
Throop’s Code, § 484, note.
SHERIFF'S CERTIFICATE OF SERVICE. 49

b. Proof made, by whom.

A certificate of J. B., under-sheriff, was held to be no proof
of service. The return should be in the name of the sheriff;.
the return of a deputy-sheriff in his own name is a nullity.

Simonds ». Catlin, 2 Caines, 61.
Joyce v. Joyce, 5 Cal. 449.

Where the summons and other papers were placed in the
hands of a deputy-sheriff, which he served, but died before
making proof of service; on affidavits showing statements made
by the deputy while he was sick, as to service, and the times
and places, the sheriff was directed to make proof of service,
under his certificate, in accordance with such affidavits.

Barber v. Goodell, 56 How. Pr. 364.

And where a summons, complaint and order, were delivered
to the sheriff, and he verbally deputed a person, not his deputy,
to serve them, who did so, and the sheriff made a return that
he had served them, and had the undertaking, it was held, that
the return was conclusive in that suit.

Col. Ins. Co. v. Force, 8 How. Pr. 358.

c. Requisites of certificate.

Where the proof of service is the sheriff's certiffcate, it should
state or refer to the name of the cause, and that the summons
served by him was in that cause; and where such certificate
stated that he served on the defendant a copy of a summons
and complaint, but it did not appear, that it was the sum-
mons and complaint, in the action then before the court, 1t was
held, not sufficient proof of service.

Litchfield », Burwell, 5 How. Pr. 341.

It will be intended, where the sheriff returns that he served
a copy on the defendant, that he served it personally.

Central B’k v. Wright, 12 Wend. 190.

A mere clerical error in defendant’s name in a sheriff's cer-

tificate may be disregarded. The use of the words, “said de-
P 7
50 PERSONAL SERVICE OF SUMMONS.

fendant,” on the certificate, will support the conclusion that the
real defendants were intended.

Miller v. Brenham, 68 N. Y. 83.

d. Effect of certificate.

A sheriff's certificate of the service of a summons, does not.
lose its force by lapse of time, or, by being previously used for
any other purpose; and although it may have been used in
reference to a judgment which is afterwards vacated, it con-
tinues to be proof of the service, and may be used on a subse-
quent application for judgment.

Brien v. Casey, 2 Abb. 416.

The certificate of a sheriff of the service of a summons, within
his own county is conclusive evidence of the fact of such
service, as against all persons but the defendant.

Brien v. Casey, 2 Abb. 416.
Col. Ins. Co. v, Force, 8 How. Pr. 353.

The return of a sheriff, or an affidavit of a person acting in
his place, of the service of a summons, is not conclusive upon
the defendant. He may be allowed to disprove, on a motion
to set the proceedings aside.

Van Rensselaer v. Chadwick, 7 How. Pr. 297.
Litchfield v. Burwell, 5 How. Pr. 341.

Wallis v. Lott, 15 How. Pr. 567.

See Bulkley v. Bulkley, 6 Abb. 807.

Sperling v. Levy, 1 Daly, 95

Moulton v. De McCarthy, 6 Robt. 470.

Wheeler v. N. Y. & H. R. R. Co., 24 Barb. 417.

The defendant's affidavit as to the time of service, is conclu-
sive against a deputy-sheriff’s certificate. In such case, the
sheriff is put to his affidavit.

Campbell v. Self, 2 How. Pr. 35.

The officer’s certificate of service, supported by his positive
testimony, is sufficient to overcome testimony of a party, against
whom the process issued, denying such service,

Sargeant v. Mead, 17 N. Y. State R. 996.
ADMISSION OF SERVICE. 51

Evidence of the handing of the summons in an action therein
to a person not a party, is not sufficient evidence to show non-
service on one who was a party, it not appearing that the judg-
ment proceeded upon such handing to said person, as being a
service on the party; especially is this so when it does not
appear, that the person so handing the summons was in any
way connected with the judgment plaintiff.

Wilcox v. Egan, 51 Super. Ct. 273.

In general, a sheriff's certificate is valid and conclusive in all
matters where such return is required by law, but no further.

Wardwell v. Patrick, 1 Bosw. 406.
Utica City B’k v. Buel, 9 Abb. 385; 8. C. 17 How. 498

3. ADMISSION OF SERVICE.

a. Mode of service.

It was formerly held, that an admission of service of the sum-
mons and complaint, not stating the mode in which the service

was made, was not sufficient: that the admission should state
that the service was personal by the delivery of a copy thereof.

Read v. French, 28 N. Y. 285.

But this ruling has been changed by this section. A written
admission of service of a summons, 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.

Last sentence of § 484, subd. 2.

It is immaterial that the admission was of a service of a copy
of the summons, instead of the summons itself.

Maples v. Mackey, 15 Hun, 538; aff’d 89 N. Y. 148.

In theory of law it is the original summons, and not a copy,
that is served, by delivering a copy.
Maples v. Mackey, 15 Hun, 538.

b. Sufficiency of admission:

An admission of service must be in writing and subscribed.
Montgomery v. Tutt, 11 Cal. 307.
52 PERSONAL SERVICE OF SUMMONS.

An admission of due and personal service is sufficient.
Maples 2. Mackey, 15 Hun, 533.

A recital that the summons was personally served, is suffi-
cient to show jurisdiction of a court of general jurisdiction.

Maples v. Mackey, 89 N. Y. 146.
Potter v. Merchants’ B’k, 28 N. Y. 653.

An admission of personal service as a part of the judgment-
roll, obviates the objection of the want of proof of service.
Andrews v. Townshend, 16 N. Y. State R. 876.

Where the summons and complaint are duly served, an
agreement endorsed thereon by the defendant, admitting the
personal service, waiving the time for answering, and consent-
ing to an immediate entry of judgment for the amount claimed,
is sufficient to sustain a judgment, entered in pursuance thereof
as a valid lien.

White v. Bogart, 73 N. Y. 256.

c. Time and place of service.

Where the admission does not state the time and place of
service, there is no proof of service, sufficient to authorize entiy

of judgment.
Trolan v. Fagan, 48 How. Pr. 241.

The object of the requirement of the statement of the time
when the service was made, is to show when the plaintiff will
be entitled to judgment.

Maples v. Mackey, 15 Hun, 536.

Tf the admission is dated, the time of service need not be
otherwise expressed; the date will be assumed to be the time

of service.
Maples v. Mackey, 15 Hun, 583.

Where the defendant admits service, as of a prior date, and
judgmentis entered before twenty days from the actual service of
the summons, this does not render the judgment fraudulent, as

to other creditors.
Peck ». Richardson, 9 Hun, 567.
Contra, Trolan v. Fagan, 48 How. Pr. 240.
Brown v. Marigold, 50 How. Pr, 252,
ADMISSION OF SERVICE. o3

A mere admission of service goes only to the mode, and is
not a waiver of irregularity in the time of service.

Francis v. Sitts, 2 Hill. 362.

But otherwise, as to an admission of “due” service.
Talman v. Barnes, 12 Wend. 227.

The date in the admission of service is not conclusive. It

may be corrected.
Rogers v. Schmersahl, 2 T. & C. 668.

The admission of service of a summons by parties defendants
residing out of the State, is ineffectual as the basis of any
judicial proceeding in personam in this State.

Litchfield v. Burwell, 5 How. Pr. 342; 8. C. 1 Code
R. (N. 8.) 42; 9 N. Y. Leg. Obs 182.

A person who indorses an admission of service upon a sum-
mons, etc., means to be understood, that everything has been
done, to make the service sufficient. Under the amendment,
the admission must still show whether service was made within,
or without the State.

Throop’s Code, § 484, note.

da. Verification of signature to admission.

Where an admission of service, purporting to be signed by
some of the parties defendant, is produced, without some evi-
dence of their signatures being genuine, or that they were written
to the admission with their assent, the service is defective. The
court takes judicial notice of the signatures of its officers but
is not presumed to know the signature of a party defendant
who has not appeared.

Litchfield ». Burwell, 5 How. Pr. 341.
Alderson ». Bell, 9 Cal. 815.

In re Gibson, 5 Eng. (Ark.) R. 572.
Welch v. Walker, 4 Porter, 120.
Norwood v. Riddle, 9 Porter, 426.

Under the Code of Procedure, which did not, in terms, re-
quire verification, omission to verify the signature was an
54 PERSONAL SERVICE OF SUMMONS.

irregularity which could be amended, if taken advantage of
promptly, and at the first opportunity.

Jones v. U. 8. Slate Co., 16 How. Pr. 129.
Maples ». Mackey, 15 Hun. 533.

And though the plaintiff is forbidden to serve the summons,
he was not precluded from proving an admission of service.

White v. Bogart, 73 N. Y. 256.

This section, however, requires verification, and the genuine-
ness of the admission cannot be proved by the affidavit of the
plaintiff.

1 Rumsey’s Pr. 162.

e. Defective proof, how cured.
Any defect in the proof of service may be cured by amend-
ment, at the hearing of a motion to vacate the judgment.

White v. Bogart, 73 N. Y. 259.
Maples v. Mackey, 89 N. Y. 146.

§ 424.

Effect of voluntary appearance.

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

This is part of section 189 of the Code of Procedure, with
the addition of the word “ general.”

The service of a general notice of appearance is equivalent
to, and dispenses with, the personal service of the summons.

Catlin ». Moss, 2 Civ. Pro. 201.

Catlin v. Ricketts, 27 Hun, 248; aff’d 91 N. Y. 668.
Tuller v. Beck, 20 Abb. N. C. 425; aff’g 46 Hun, 519.
Brett v, Brown, 18 Abb. N. 8. 295.

A general appearance confers jurisdiction over the person.

Mahaney v. Penman. 4 Duer, 603.
Shaw ov, Cock, 12 Hun, 177
Dole v Manley, 11 tHlow. Pr 128.
EFFECT OF VOLUNTARY APPEARANCE. 5a

Chadwick v. Chase, 5 W’k Dig. 590.

Phelps v. Phelps, 6 Civ. Pro. 120.

McCormick v. Penn. C. R. R. Co.,49 N. Y. 308.
Ward v. Roy, 69 N. Y. 98.

Olcott v. McLean, 73 N. Y. 223.

Where defendant's attorneys indorse their names upon the
motion papers served by them, upon a motion to set aside the
service of a summons by publication, and all proceedings there-
under, this is an appearance in the action.

Phelps v. Phelps, 6 Civ. Pro. 120; aff’d 832 Hun, 642.

But though this may be asuflficient appearance to waive irregu-
larities, it is not sufficient to entitle defendant to notice of fur-
ther proceedings.

Douglas v. Haberstro, 8 Abb. N. C. 280.
Couch v. Mulhane, 63 How. Pr. 79.

A formal notice of appearance has been rendered necessary
by the provisions of sections 421 and 422 of the Code of Civil
Procedure, to prevent an ex parte application for judgment.

Douglas v. Haberstro, 8 Abb. N. C. 230; S. C. 68
How. Pr. 276.

An appearance by one appointed guardian ad litem for an
infant defendant, who has not been served with summons, is
not a voluntary appearance within the meaning of the provis-
ions of this section.

Ingersoll v. Mangam, 84 N. Y. 622.

But an appearance by a guardian ad litem, for an infant who
was served by publication without the State, in an action for
partition, is sufficient to give the court jurisdiction. The man-
ner of service on the infant is of no importance, as the appear-
ance is not dependant upon that.

Thistle v. Thistle, 5 Civ. Pro. 43.

A corporation, like a natural person, may appear voluntarily
by attorney, and such appearance gives jurisdiction to the same
extent, as if there was actual service of process.
56 SUBSTITUTED SERVICE OF SUMMONS.

Att’y-Gen. v. G. M. L. Ins, Co., 77 N. Y. 275.
Ward v. Roy, 69 N. Y. 98.

Osburn v. U. 8. Bank, 9 Wheat. 830.

Brown v. Nichols, 42 N. Y. 26.

McCormick v. Penn. C. R. R. Co., 49 N. Y. 3038.
Watson v. Cabot, 5 Sandf. 423.

A general voluntary appearance in the action, amounts
to a waiver of all defects and irregularities in the service of
the summons.

Allen v. Malcom, 12 Abb. N. S. 885.
Mors v. Stanton, 51 N. Y. 649.
See, also cases, p. 16.

And it cures a total absence of any service.

Wheelock v. Lee, 74 N. Y. 495.

§ 435.
Substitutes for Personal Service in Special Cases.

Order for service of summons from Court of Record,
when Defendant not found.

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 coun-
ty where the action is triable, upon satisfactory
proof, by the affidavits 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 sum-
mons 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 ser-
vice cannot be made.

This section is part of the Laws of 1853, chap. 511. As
incorporated into the Code of Civil Procedure, the provision
was confined to an action in the Supreme Court.
EFFECT OF SUBSTITUTED SERVICE. 57

It was amended by the Laws of 1880, chap. 535, by substi-
tuting the words, “ Any court of record,” for the words, “the
Supreme Court.”

EPFECT OF SUBSTITUTED SERVICE.
A substituted service is equivalent to personal service,
within the spirit of section 1670, of the Code of Civil Pro-

cedure.
Ferris v. Plummer, 46 Hun, 515; S. C. 12 N. Y. State R.

652; S. C. 13 Civ. Pro. 389.
And it is equivalent to personal service, so far as it affects
the right to enter judgment.
Orr v. McEwen, 16 Hun, 625.
But, it is not sufficient to satisfy the requirements of sec-
tion 688, in order to uphold the provisional remedy of attach-

ment. ;
Bogart v. Swezey, 26 Hun, 464; 8. C. 14 Wk. Dig. 109.

The order authorizing a substituted or constructive service
of a summons is not an order granting a provisional remedy,
within the meaning of section 772 of the Code of Civil Pro-

cedure.
McCarthy v. McCarthy, 18 Hun, 579; Rev’g, 54 How. Pr.
97.

Substituted service operates to produce the same result, as
service by publication, under section 399 of the Code of Civil
Procedure, would accomplish in defeating the Statute of

Limitations.
Clare v. Lockwood, 16 N. Y. State R. 739.
S. C. Clark v. Lockwood, 13 Civ. Pro. 278.

FACTS NECESSARY TO BE SHOWN BY AFFIDAVIT.
The facts necessary to be proven, before the order can be
granted, must exist at the time of the application.

McCarthy v. McCarthy, 55 How. Pr. 418.
Forbes v. Hyde, 31 Cal. 351.

A delay of fifteen days, between the making of an affidavit,
and an application for an order, was held fatal on an appeal
from the judgment.

Cohn v. Kember, 47 Cal. 144.
See People v. Huber, 20 Cal. 81.
58 SUBSTITUTED SERVICE OF SUMMONS.

And such order can only be made on proof of the facts
necessary to confer jurisdiction, and, therefore, is res judicata.
Collins v. Ryan, 32 Barb. 647.

The proof required by this section, on which to found the
order, need not necessarily be direct and positive, but satis-
factory proof. Such proof as satisfies the mind of the judge
to whom the application is made, that the state of facts exist
which entitles him to make the order.

McCarthy v. McCarthy, 55 How. Pr. 418; Aff’d, 16 Hun.
548; Aff’d, 84 N. Y. 671.

As to what is satisfactory proof, see
McCarthy v. McCarthy, 55 How. Pr. 418.

Where the evidence presented is competent, and tends to
prove the facts on which the authority of the justice to issue
the order depended, nothing more is required.
Simpson v. Burch, 4 Hun, 316; 8. C. 6 T. & C. 560.
McCarthy v. McCarthy, 16 Hun, 548; Aff’d, 84 N. Y. 671.
See Miller v. Brinkerhoff, 4 Den. 118.
Staples v. Fairchild, 3 N. Y. 41.
Skinnion v. Kelley, 18 N. Y. 355.
Hall v. Munger, 5 Lans. 103.
Palmer v. Lawrence, 6 Lans. 285.
Collins v. Ryan, 32 Barb. 647.
Carleton v. Carleton, 23 Hun, 251,
Carleton v. Carleton, 85 N. Y. 313.
Easton v. Malavez, 7 Daly, 147.

The essential facts that must be established by affidavit are’
as follows:
First: That the defendant is a resident of this State.

Collins v. Ryan, 32 Barb. 647.
Haswell v. Links, 87 N. Y., 687; S. C. 14 W’k. Dig. 402.

Second: That proper and diligent effort has been made to
serve the summons, upon the defendant, without avail.

Simpson v, Burch, 4 Hun, 316; 8. C. 6 T. & C. 560.
Baker v. Stephens, 10 Abb. N, 8. 1.

Third: That the place of his sojourn cannot be ascertained,
or, if found, that he evades or avoids personal service.
AFFIDAVIT HELD SUFFICIENT, 59

Foot v. Harris, 2 Abb. 445.
Collins v. Campfield, 9 How., Pr. 519.
Ottman v. Daly, 17 Civ. Pro. 62.

AFFIDAVIT EELD INSUFFICIENT.

Where it appeared, that the officer had used proper and
diligent means, and had called repeatedly at the places where
the defendant frequented, and at his house, and had been
told he was not at home, and that the person in charge did
not know when he would be at home, and he could not be
found within or without the State, the affidavit was held

sufficient.
Nagle v. Taggart, 4 Abb. N. C. 144.

An affidavit of the sheriff, stating that he had made dili-
gent and proper efforts to serve the summons upon the de-
fendant, by going to his place of business and residence, but
that he could not be found in this State, is sufficient to
authorize the county judge to order a substituted service.

Simpson v. Burch, 4 Hun, 315; 8. C.6 T.& C. 560.
See Carter v. Youngs, 42 Super Ct. 169.

Where the officer called frequently at the residence of the
defendant, and asked to see her, but was denied, although
the defendant had been on the street the day before, it was
held sufficient to permit substituted service to be made.

McCarthy v. McCarthy, 55 How. Pr. 418; aff'd 16 Hun,
546. :

In a case where the defendant was confined to his house
by illness, and his wife refused to permit the officers to
have access to him it was held, that service might be made
upon him in the manner provided for in this section.

Carter v. Youngs, 42 Super. Ct. 169.

Where it appeared that the defendant in an action was a

well-known theatrical manager on the road with his com-
pany, which had dates for the summer season in the principal

cities in the Union, and who necessarily sojourned in those
cities while the company performed there, it was held that
he was not seeking to avoid service.
60 SUBSTITUTED SERVICE OF SUMMONS.
Ottman v. Daly, 17 Civ. Pro. 60.

Where the essential statutory fact to be shown was con-
cealment with intent to avoid the service, it was held, that
the affidavits alleging the defendant’s absence from his usual
place of business and resort, soon after demand of payment,
coupled with a refusal to state his address and residence,
contained enough to fairly call upon the judge for the ex-
ercise of his judgment on the evidence.

Easton v. Malavez, 7 Daly, 147.

Where a judgment was, in an action brought to set aside
a fraudulent conveyance, by the judgment debtor, attacked
for want of jurisdiction, in the judge granting the order, it.
was held, that it was only requisite for the plaintiff to show
residence of the defendant in this State; that it was suffi-
cient that the other facts specified in the statute were shown
to the satisfaction of the judge granting the order.
Haswell v. Links, 87 N. Y., 637; S. C. 14 W’k Dig, 402.

AFFIDAVIT HELD SUFFICIENT.

Judgment and execution were set aside, where service of
the summons was made at the defendant’s residence and place
of business in this State, while the plaintiff knew he was
absent in another State. :

Jones v. Derby, 1 Abb. 458.
Collins v. Campfield, 9 How. Pr. 519.
Smith v. Fogarty, 6 Civ. Pro. 370.

Where upon a statement of the defendant’s wife, that he
had gone to the State of Ohio, and was not expected back
during the summer, except on a visit, it was held, not to war-
rant the issuance of the order.

Collins v. Campfield, 9 How. Pr. 519.

The plaintiff is not entitled to an order for substituted
service, where the papers show where tle absent defendant.

may be found.
Foot v. Harris, 2 Abb. 454,

The act was intended to authorize service of process, etc.,
HOW SUBSTITUTED SERVICE MADE, 61

when the party served, could not be found, either in or out of
the State, or being found, should avoid or evade personal
service.

Collins v. Campfield, 9 How. Pr. 519.
Foot v. Harris, 2 Abb. 454. .
Smith v. Fogarty, 6 Civ. Pro. 370.

The provisions of the Code, authorizing substituted service
of a summons are special in their nature and intended only as
ameans of reaching runaway debtors whose places of sojourn
cannot be located, and those, who remain at home, but avoid
service of process; and were never intended to include those
temporarily absent on business at a known place, or those
sojourning at a summer watering-place, in good faith, and with-
out evil intent.

Ottman v. Daly, 17 Civ. Pro. 62.

FORM OF AVFIDAVIT.

Forms of affidavits sufficient to obtain order for substituted
service.

Baker v. Stephens, 10 Abb. N. 8. 1.
Nagle v. Taggert, 4 Abb. N. C. 144.
McCarthy v. McCarthy, 16 Hun. 546.

§ 436.

How Service Must be Made.

The order must direct, that the service 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 applica-
tion 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 defend-
ant’s residence, and by depositing another copy
thereof, properly inclosed in a post-paid wrapper,
62 SUBSTITUTED SERVICE OF SUMMONS.

addressed to him, at his place of residence, in the
post-office at the place where he resides.

This is a part of chap. 511, of the Laws of 1853, with a
few amendments, designed chiefly to secure greater preci-
sion.

Throop’s Code, § 436, n.

The word, “residence,” as used here, is synonymous with
that of “ dwelling house,” or “ habitation.”

Foot v. Harris, 2 Abb. 457.
Neally v. Redman, 5 Iowa, 387.

Where the only person present on the premises is at some
little distance from the dwelling-house, itis better not to rely
on mere delivery to such person but to also post a copy on
the door, and mail a copy.

Kibbe v. Benson, 17 Wall. 624.

§ 437.

Papers to be Filed ; Proof of Service.

The order, and the papers upon which it was
granted, must be filed, and the service must be made,
within ten days after the order is granted ; otherwise
the order becomes 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 publica-
tion, pursuant to an order for that purpose, made as
prescribed in the next section.

The first sentence is new. The rest of the section is taken
from chap. 511 of the Laws of 1853, with a few amendments,
in order to harmonize the effect of service in this class of
cases, with that of service by publication.
PROOF OF SUBSTITUTED SERVICE. 63:

The effect of this provision is to make the service equiva-
lent to service by publication, and the result is that the de-
fendant, on whom such service is made, is in default at the
expiration of twenty days from the time of making the ser-
vice.

Orr v. McEwen, 16 Hun, 627.

The service is assimilated to that by publication, and ap-.
plication to the court, and the same kinds of proof are nec-.
essary in cases of substituted service, as where the service is-
by publication.

Smith v. Fogarty, 6 Civ. Pr. 367.
Bogart v. Swezey, 26 Hun, 464.

The person serving, must state what acts he performed in
serving the process, so that the court may decide upon its,
sufficiency.

Sharp v. Baird, 48 Cal. 577.

The time of service should be stated.

Hakes v. Shupe, 27 Iowa, 465.
Wilson v. Call, 49 Iowa, 463.

And the place of service.

Robison v. Miller, 57 Miss. 287.
j Liblong v. K. F. Ins. Co., 82 Penn. 413.
Hakes v. Shupe, 27 Iowa, 465.

Also, the manner of service.
Hakes v. Shupe, 27 Iowa, 465.

The proof of service need not state that the paper was left
with a person inside the dwelling-house; the statute is satis-
fied by a service at the door outside the dwelling-house.

Pheenix Ins. Co. v. Wulf, 1 Fed. Rep. 775.

But not with a service at a distance of 125 feet from the

house.
Kibbe v. Benson, 17 Wall. 624.

The affidavit should state that a copy was delivered to, or
offered to, and refused by, the defendant.
64 SERVICE OF SUMMONS BY PUBLICATION.

Case v. Colston, 1 Mete. 145.
Hochlander v. Hochlander, 73 Tl. 618.

§ 438.

Cases in which Service of Summons, by Publication, etc.,
may be Ordered.

An order directing the service of a summons
upon a defendant, without the State, or by publica-
tion, may be made in either of the following cases :

1. Where the defendant to be served is a foreign corpora-
tion; 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 asummons; 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 desig-
nated 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 judgement, that the defen-
dant 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
SERVICE OF SUMMONS BY PUBLICATION. 65

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 time had not been extended by the attempt to
commence the action.

7. Where the action is against the stockholders of a corpo-
ration, or a 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 twen-
ty-six of this act, or by section four hundred and twenty-
nine of this act, to be delivered to a person other than the
defendant, an order, directing the service of a copy of the
summons upon such person without the State, or by publica-
tion, may be made as prescribed in this section, as if such
person was the defendant in the action, and upon a verified
complaint and the same proof with respect to such person, as
is required in the next succeeding section with respect to a
defendant. And sections four hundred and forty to four hun-
dred and forty-four, both inclusive, apply to the proceedings
in like manner, as if such person was a defendant.

The first and second subdivisions of this section correspond
to subdivisions 1, 2, and 3, of section 185, of the Code of Pro-
cedure, omitting the requirements in subdivision 1 and 8, that
the defendant must have property within the State, that the
cause of action must have arisen within the State, and that
the court must have jurisdiction.

Of these requirements, that relating to the jurisdiction, as
far as it is not superfluous, is covered by the provision in the
next section, requiring the complaint to show the cause of
action for which judgment is demanded ; and that relating to
the possession of property within this State should be placed
where the courts have placed it, among the conditions upon
which the plaintiff is entitled to judgment, confining the pro-
vision to cases where plaintiff asks only for a money judgment.
(Code Civ. Pro., § 1217.) It be noticed that subdivision
66 SERVICE OF SUMMONS BY PUBLICATION.

two presents one of the cases where service, by leaving at the
residence, may, also, be made under the provisions of section
435, ante. In that respect, the law is left unchanged ; so that
the judge is authorized to order service under either section,
as he may think fit.

Subdivision three provides for an omission to comply with
the provisions of section 480, ante.

Subdivisions four and five, together with section 439, pro-
vide for every case coming within subdivisions four and five
and the preliminary sentence of section 135 of the Code of
Procedure, and are a substitute for those provisions.

Subdivision six is intended to cover the case provided for
in section 3899 of the Code of Civil Procedure.

Subdivision seven was taken from the Laws of 1869, chap.

157, § 1.
Throop’s Code, § 488, notes.

This section was amended by the Laws of 1879, chap. 542,
by adding the latter clause of subdivision 1, beginning with
the words, “or where.” Also, by omitting from subdivisions
4 and 5 the requirement that the defendant be a resident of
the State, or a corporation.

It was again amended by the Laws of 1884, chap. 399, by
adding the last two clauses.

Prior to the Code, it was well settled, that no effectual ser-.
vice of process could be made, on any person beyond the jur-
isdiction of the court, out of which the process issued.

Fenton v. Garlick, 8 Johns. 194.
Andrews v. Herriot, 4 Cow. 508, 524, n.

Fiske v. Anderson, 12 Abb. 8.
Peck v. Cook, 41 Barb. 549.

But by section 135 of the Code of Procedure, upon which
this section is based, the publication of a summons and ser-
vice by mail, in pursuance of an order duly obtained from a
judge of the court, was made equivalent to personal service.

General Provisions.

This provision of the Code was an innovation upon the
GENERAL PROVISIONS. 67

former practice, and is limited to the cases expressly provided
for by statute.

Fiske v. Anderson, 12 Abb. 8; 8. C. 33 Barb. 71.
Peck v. Cook, 41 Barb. 549.
Hallett v. Righter, 13 How. Pr. 43.

Where service by publication is ordered, a personal service
out of the State is equivalent thereto, and equally valid to
give jurisdiction.

Waffle v. Goble, 53 Barb. 517; S. C. 35 How. Pr. 356.
Jenkins v. Fahey, 73 N. Y. 355.

In order to warrant a publication of the summons, a prior
attempt to effect a personal service upon a non-resident is not
indispensable.

Vernam v. Holbrook, 5 How. Pr. 3.

An order for publication may be made in an equitable ac-

tion.
Lefferts v. Harris, 10 Abb. N.S. 2, n.

An attachment is not necessary to confer jurisdiction upon
the court to grant an order for personal service without the
State, upon a foreign corporation.

Wood v. St. L. B. & I. Co., 1 Civ. Pro. 220.
Clark v. Boreel, 21 Hun, 594; S. C. 10 W’k. Dig. 349..

A limit is imposed, requiring the possession of property in
the State, under subdivision one of this section, providing for
service of a summons by publication upon a non-resident.

Bryan v. University Pub. Co., 21 N. Y. State R. 21; S. C.
112 N. Y. 882; revg15 N. Y. State R. 908; 8. C. 15
Civ. Pro. 74.

This section is equally applicable to an infant, as to an
adult.
Syracuse Sav. B’k v. Burton, 6 Civ. Pro. 216.

Bryan v. Kennett, 113 U. 8. 179.
And service by publication may be made on a non-resident

insane defendant.
McCormick v. Paddock, 30 N. W. Rep. 602.
68 SERVICE OF SUMMONS BY PUBLICATION.

It is doubtful, whether the provisions of the Code as to
publication, as to non-residents, apply to non-resident rep-
resentatives.

Angell v. Lawton, 76 N. Y. 540.
But see Lockwood v. Brantly, 31 Hun, 155.

Special provisions for the service by publication in the
Marine Court of the city of New York.
Code of Civil Procedure, §§ 3160, 3170.

UNKNOWN OWNERS.
The service of summons by publication, in an action for
foreclosure, upon unknown owners, is valid and binding.

Wheeler v. Scully, 50 N. Y. 667.
Piser v. Lockwood, 30 Hun, 6; 8. C. 17 W’k Dig. 313.
Abbott v. Curran, 98 N. Y. 665.

Although it appears that the unknown party is an infant.
Wheeler v. Scully, 50 N. Y. 667.

It has been held, that the provisions as to service upon un-
known owners are not applicable to suits for partition.
Sandford v. White, 56 N. Y. 359; aff’g, 46 How. Pr. 205.

But this is now especially provided for by subdivisions 1
and 5 of this section, and section 451 of the Code of Civil
Procedure.

Allen v. Allen, 11 How. Pr. 277.
See Bergen v. Wyckoff, 1 Civ. Pro. 1; 8. C. 84.N. Y. 659.

SUBDIVISION TWO.

This subdivision furnishes the only case, except tuat pro-
vided in subdivision fourth, where service by publication can
be made upon a resident of the State, who is within the
State.

Irving Sav. Inst. v. Hardman, 17 Abb. 67, n.

Where it appears that defendant openly avoids service, by
eluding the sheriff within the State, and does not keep him-
PAPERS ON WHICH ORDER MADE. 69

self concealed, the case does not come within this subdivi-

sion.
‘Van Rensselaer v. Dunbar, 4 How. Pr. 151.
Foot v. Harris. 2 Abb. 454,

§ 439.

Papers upon Which Order for Publication May be Made.

The order must be founded upon a verified com-
plaint, showing a sufficient cause of action against
the deferidant to be served, and proof by affidavit of
the additional facts required by the last section ;
and also, where the application is made upon the
ground that the defendant is a foreign corporation,
or not resident of the State, or in a case specified in
subdivision fourth, fifth or seventh of the last sec-
tion, that the plaintiff has been or will be unable,

with, due diligence, to make personal service of the
summons.

This section is based upon portions of section 135 of the
Code of Procedure, which was amended, so as to require a
verified complaint to be presented, on the application for the
order, and to dispense with a diligent search in the state, for
a known resident of another State.

It was amended, however, by chap. 542, of the Laws of
1879, by the addition of the last clause, requiring the plaintiff
to show in certain cases that he will be unable, with due
diligence, to make personal service of the summons upon the
defendants within the State.

STATUTE TO BE STRICTLY FURSUED.

The provisions of the Code for the recovery of judgment,
upon service of the summons by publication, etc., are new,
and the statute must be strictly pursued, and fully complied
with, in order to confer jurisdiction of the defendant’s person.

Brisbane v. Peabody, 3 How. Pr. 109.

Hallett v. Righters, 13 How. Pr. 43.

Kendall v. Washburn, 14 How. Pr. 380.

Titus v. Relyea, 8 Abb. 177; 8. C. 16 How. Pr. 871.
70 SERVICE OF SUMMONS BY PUBLICATION.

Haight v. Husted, 4 Abb, 348 ; aff'd 5 Abb. 170.

Hyatt v. Wagenright, 18 How. Pr. 248.

Talcott v. Rosenburg, 8 Abb. N. 8. 287; 5. C. 3 Daly, 203.
Cook v. Farmer, 12 Abb. 359.

S. C. Cook v. Farnam, 21 How. Pr. 286.

S. C. Cook v. Farren, 34 Barb. 95.

Wortman v. Wortman, 17 Abb. 67.

People v. Huber, 20 Cal. 81.

Cohn v. Kember, 47 Cal. 144.

SUFFICIENCY OF THE EVIDENCE TO GIVE JURISDICTION

It is for the judge to pass upon the sufficiency of the evi-
dence presented to him.
Carleton v. Carleton, 23 Hun. 251 ; Rev'd 85 N. Y. 313.
Belmont v. Cornen, §2 N. Y. 256.
And his determination cannot be collaterally impeached.

Walker v. Reiff, 13 W’k Dig. 331.
Welles v. Thornton, 45 Barb. 390.
Belmont v. Cornen, 82 N. Y. 256.

A prima facie case is sufficient to authorize an order for the
publication of a summons.
Meli v. Meli, 90 N. Y. 654,

Where there is a total absence of proof of the facts neces-
sary to confer jurisdiction, the order for publication and all
proceedings founded upon it, are absolutely void.

Towsley v. McDonald, 32 Barb. 604.

The affidavit must show the case is within the law.
Peck v. Cook, 41 Barb. 549.

Unless the case is, in fact, within this section, an order of
publication, and all proceedings founded thereupon, are
absolute nullities. It is not sufficient that the affidavit on
which the order is made states the case to be within, nor that
the judge making the order is satisfied the case is within, this
section.

Fisk ». Anderson, 33 Barb. 71; 8. C. 12 Abb. 8.
See Peck v. Cook, 41 Barb. 549.

Where the facts stated have a legal tendency to make a
case, and lay the foundation for an order of publication, that
is sufficient to authorize the judge to make it.
PROOF OF FACTS TO OBTAIN ORDER, 71

Van Rhade v. Van Rhade, 2 T. & C. 491.

Donnelly v. West, 66 How. Pr. 430.

Schroeder v. Lear, 17 W’k Dig. 574.

Chase v. Lawson, 36 Hun, 221; 8S. C. 21 W’k Dig. 572.
Belmont v. Cornen, 82 N. Y. 256.

And, where the proof tends strongly to establish the facts
giving jurisdiction to make such an order,it is not void,
although it may be vacated on error or appeal.

Smith v. Matson, 47 How. Pr. 118.
Miller v. Brinckerhoff, 4 Den. 120.
Staples v. Fairchild, 3 N. Y. 46.

Van Rhade v. Van Rhade, 2 T. & C. 491.
Donnelly v. West, 66 How. Pr. 430.

See Welles v. Thornton, 45 Barb. 390.
See Van Alstyne v. Erwin, 11 N. Y. 340,

The proceedings will be upheld, when taken in good faith,
in the absence of any affirmative evidence disproving the
facts alleged, if the original papers contained evidence calling
for the exercise of the judgment of the officer, who was re-
quired in the first instance to determine their sufficiency.

Handly v. Quick, 47 How. Pr. 235.
Van Wyck v. Hardy, 39 How. Pr. 392.
Donnelly v. West, 66 How. Pr. 430.
Talcott v. Rosenburg, 8 Abb. N. 8. 287.
Steinle v. Bell, 12 Abb. N. 8. 171.
Miller 0. Adams, 52 N. Y. 409.

Peck v. Cook, 41 Barb. 549.

Waffle v. Goble, 53 Barb. 517.

To obtain an order for publication against a non-resident
defendant, three facts must be made to appear to the judge
granting the same.

First: That a cause of action exists against such defendant,
or, that he is a proper party to an action, relating to real
property in this State.

Second: That the defendant is anon-resident of the State.

Third: That the defendant cannot, after due diligence, be
found within the State.

Bixby v. Smith, 3 Hun. 60 ;8. C.5 T. & C. 279.
Wunnenberg v. Gearty, 36 Hun, 248; 8. C. 2 How. N.S.
185; S. C. 21. W’k Dig. 954; S. C. 7. Civ. Pro. 393.
72 SERVICE OF SUMMONS BY PUBLICATION.

See Ratel v. Ratel, 17 W’k Dig 136.
Jones v. Freeman, 22 W’k Dig. 524.

It must also appear, that the application was made prompt-
ly after the affidavit was made.

Forbes v. Hyde, 31 Cal. 351.
Cohn v. Kember, 47 Cal. 144.

The Verified Complaint.
It must appear that a cause of action exists against the
defendant in respect to whom the service is to be made.

Towsley v. McDonald, 32 Barb. 604.
Rawdon v. Corbin, 3 How. Pr. 416; S. C. 2 Code R. 3.

It has been held, that the verified complaint spoken of in
this section, must be actually presented to the judge at the
time of the application for the order.

Ladd v. T. H. C. & M. Co., 13 W’k Dig. 209.

There are two decisions to the contrary, however, where it
was held, that a verified complaint on file in the county
clerk’s office, and the affidavit presented for the order of
publication, setting forth such fact, and annexing a copy
thereof, were sufficient.

McCully v. Heller, 66 How. Pr. 468.
Stow v. Stacy, 14 Civ. Pro. 45.

The last two cases are special term decisions, while the one
preceding them is a decision of the General Term. Aside
from that, itis believed, that the former case contains a true
statement of the law, and is the better authority.

See 1 Rumsey’s Pr. 167.

Where the verification to a complaint simply states, that it
is true, as affiant is informed and believes, it is,in a case
where all the allegations, in the complaint are upon infor-
mation and belief, a sufficient verification.

Orvis v. Goldschmidt, 2 Civ. Pro. 314; S.C. 64 How. Pr.
Td:
8. C. Orvis v. Lambeau, 2 McC. C. P. 250.
THE AFFIDAVIT. 73

If the complaint is unverified, the order for publication,
and attachment must be set aside.
Luther v. Brison, 4 Law Bull. 91.

Where the complaint has been verified before a commis-
sioner without this State, and it was not certified in the man-
ner to entitle a deed so acknowledged to be recorded in this
State, it was held, that the papers were to be regarded as
unverified and showing no sufficient cause of action against
the defendant; and that, so regarded, they failed to give the
court or officer any jurisdiction of the case.

Williamson v. Williamson, 2 McC. C. P. 428; S. C. 3 Civ.
Pro. 69; 8. C. 64 How. Pr. 450.

Phelps v. Phelps, 6 Civ. Pro. 117; aff'd, 32 Hun, 642.

See Williams v. Waddell, 5 Civ. Pro. 191.

And Harris v. Durkee, 5 Civ. Pro. 376.

THE AFFIDAVIT.

1. Proof, How Made.
The proof must appear by affidavit.

Waffle v. Goble, 35 How. Pr. 356; 8. C. 53 Barb. 517.
Easterbrook v. Easterbrook, 64 Barb. 421.

The return of a sheriff upon the summons will not be con-
sidered as forming any part of such proof.
Waffle v. Goble, 35 How. Pr. 256; 8. C. 53 Barb. 517.

Nor is the sheriff’s certificate, that the defendant cannot,
after due diligence, be found within the State, a substitute
for it.

Easterbrook v. Easterbrook, 64 Barb, 421.
Spiers v. Halstead, 71 N. C. 209.

The sheriff’s return is not enough to show effort and inabi-
lity to serve.

Victor M. M. Co. v. Justice Court, 18 Nev. 21.
Palmer v. Cowdrey, 2 Colo. 1, 6.
Clayton v. Clayton, 4 Colo. 410.

But the return of the sheriff, that he has made efforts to
serve the defendant, and was informed he had left the State,
is a sufficient basis on which to make an affidavit on informa-
‘74 SERVICE OF SUMMONS BY PUBLICATION.

tion and belief, that defendant was a non-resident, and was
not within the State.

Howe M. Co. v. Pettibone, 74 N. Y. 68; S. C., 12 Hun 657.
Schroeder v. Lear, 17 W’k Dig. 574.

Letters or papers referred to in an affidavit to obtain an
order for publication, should be annexed to the affidavit.

Greenbaum v. Dwyer, 4 Civ. Pro. 276.

2. By Whom Made.
The affidavit required by this section may be made by the
plaintiff.
Waffie v. Goble, 35 How. Pr. 356; S. C. 53 Barb. 517.

Van Wyck v. Hardy, 20 How, Pr. 222; aff'd, 39 How. Pr.
892.

The statute does not prescribe who shall make the affidavit.
It may be made by any person having knowledge of the re-
quisite facts.

Waffle v. Goble, 35 How Pr. 356; 8. C. 53 Barb. 517.

But where service by publication is sought on an unknown
defendant, the affidavit should be made by the plaintiff or
excuse shown.

Piser v. Lockwood, 30 Hun, 6.

3. Title.
The affidavit being wrongfully entitled will not affect the
regularity of the order.

Barnard v. Heydrick, 2 Abb. N. S. 47; S. C. 49 Barb. 62;
S. C. 32 How. Pr. 97.

4. Place of Taking.

Where the affidavit upon which the order of publication
was granted was apparently sworn to in one county, before a
notary public of another county, the order will not be vacated.
‘This is a defect which is capable of amendment.

Murphy v. Hall, 23 W’k Dig. 184.
PROOF OF RESIDENCE, 75

5. Allegations Made Upon Information and Belief.
The allegations of non-residence may be upon information
and. belief.

Steinle v. Bell, 12 Abb. N. S. 171.

Van Wyck v. Hardy, 39 How. Pr. 392.

McKinney v. Collins, 18 W’k Dig. 181.

Schroeder v. Lear, 17 W’k Dig. 574.

Chase v. Lawson, 36 Hun, 221; S. C. 21 W’k Dig. 572.

Seiler v. Wilson, 43 Hun, 631; S. C. 26 W’k Dig. 297; S.
C.7N. Y. State R. 254.

Howe M. Co. v. Pettibone, 74 N. Y. 68.

Belmont v. Cornen, 82 N. Y. 256.

Carleton v. Carleton, 85 N. Y. 313.

Contra, Lyon v. Baxter, 64 How. Pr. 426.

Also, the statement that the defendants cannot be found
within this State.

Van Wyck v. Hardy, 20 How. Pr. 222; aff’d 89 How. Pr.
392.

It has been held that the facts required to be shown by af-
fidavit, should be stated positively, and not upon information
and belief.

Evertson v. Thomas, 5 How. Pr. 45; 8. C. 3 Code R. 74.
Warren v. Tiffany, 17 How. Pr. 106; S. C. 9 Abb. 66.

All the requisite facts, except, perhaps, that of non-resid-
ence, must be shown from actual knowledge, or, if they are
sworn to upon information and belief, the source of the in-
formation, and what it is, so that the court can say, whether
or not it tends to prove the facts stated.

McKinney v. Collins, 13 W’k Dig. 131.

An affidavit upon belief that defendant keeps out of the
way to avoid personal service, must state circumstances to
show that such belief is well founded.

Godkin v. Redgate, 1 Crompt. & J. 401.

6. Proof of Residence.

The affidavit must show the residence of the defendant, or
that it is neither known to the plaintiff, nor can, with reason-
able diligence, be ascertained by him.
76 SERVICE OF SUMMONS BY PUBLICATION.

Hyatt v. Wagenright, 18 How. Pr. 248.

Cook v. Farren, 34 Barb, 95.

S. C. Cook v. Farnam, 21 How. Pr. 286.

S. C. Cook v. Farmer, 12 Abb. 359; aff’g 11 Abb. 40.

Where an order for publication is sought in an action for
divorce, under subdivision fourth of section 438, it must.
appear that the plaintiff is an actual inhabitant of the State.

Yenney v. Yenney, 1 Civ. Pro. 146, n.

For the purpose of determining the place of residence of an
infant, under section 488, that of the mother having the care,
custody and control of the child must be regarded as that of

the child.
Syracuse Sav. Bk. v. Burton, 6 Civ. Pro. 216.

The fact of non-residence is evidence that the defendant.
cannot be found in the State.

Vernam v. Holbrook, 5 How. Pr. 3.
Rawdon v. Corbin, 3 How. Pr. 416.

Proof of non-residence does not show, nor of itself tend to
show, that the defendant cannot be found within the State.

Bixby v. Smith, 3 Hun, 60.

Where the only proof is that the defendant is a non-resi-
dent, an order based thereon is a nullity.
Wortman v. Wortman, 17 Abb. 66.
In re Bethune, 4 Dem. 393.
Hyatt v. Swivel, 52 Super. Ct. 1.
Bixby v. Smith, 3 Hun, 60.
Argall ». Bachrach, 18 W’k Dig. 267.
Bryan v. University Pub. Co., 21 N. Y. State R. 21; S. C..
112 N. Y! 382; rev’g 15 Civ. Pro. 74; 8. C. 15
N. Y. State R. 903.

An affidavit stating that the affiant is informed by persons
who were not under oath, and believes that a defendant is a
resident of another State, will not be accepted as proof of
non-residence of such defendant.

Lyon v. Baxter, 16 W’k Dig. 340.
PROOF OF DUE DILIGENCE, 77

7. Proof of Due Diligence.

The fact of defendant’s non-residence is insufficient to au-
thorize an order for publication of a summons; the affidavit
must show that due diligence has been used, and that the
person to be served cannot be found within the State, to the
satisfaction of the judge.

Waffle v. Goble, 35 How. Pr. 356; S. C. 53 Barb. 517.

Hulbert v. Hope M. Ins. Co., 4 How. Pr. 278; aff’d 4
How. Pr. 415.

Irving Sav. Inst. v. Hardman, 17 Abb. 67, n.

It must state that due diligence to serve the defendants has
been used without success.

Rawdon v. Corbin, 3 How. Pr. 416.
Vernam v. Holbrook, 5 How. Pr. 3.
Wortman v. Wortman, 17 Abb. 66.

If the affidavit does not state that due diligence has been
made to find the defendant within the State, an order granted
thereon is a nullity.

Campbell ». Taylor, 9 W’k Dig. 14.
Argall ». Bachrach, 18 W’k Dig. 267.

What is suitable and proper diligence may depend some-
what upon the peculiar facts and circumstances of each case.
The Statute uses the well understood term “due diligence,”
which intends not diligence extraordinary or extreme, but
only proper and suitable.

Chase v. Lawson, 36 Hun, 223.

Wunnenberg v. Gearty, 36 Hun, 243; S. C. 2 How. N.S.
135; §.C. 7 Civ. Pro. 393; S.C. 21 W’k Dig.
549.

It is not necessary for the plaintiff's attorney to issue a

summons to every county within the State.
Belmont v. Cornen, 82 N. Y. 256.

The facts which tend to show that the plaintiff has been, or
will be unable, with due diligence, to make personal service,
must be stated.

Carleton v. Carleton, 85 N. Y. 315.
Belmont v. Cornen, 82 N. Y. 256.
78 SERVICE OF SUMMONS BY PUBLICATION.

It should be shown what measures have been taken, and
what acts of diligence have been used, and particularly what
inquiries have been made, and of whom, and the means of
knowledge possessed by such persons, in relation to the resi-
dence of those defendants, and of a practicability of a per-
sonal service on them in the State; so that the judge may be
abie to determine whether in fact due diligence has been
used; and it may be conceded that no order ought to be
made, without proof of that character; although it cannot be
said that such specification is absolutely necessary.

Van Wyck v. Hardy, 39 How. Pr. 392.

The statement as to due diligence is not absolutely an alle-
gation of a conclusion of law, or an opinion, but in connec-
tion with what follows, a statement of facts, which tends to
establish that due diligence has been used.

Kennedy v. N. Y. L. Ins. & T. Co., 101 N. Y. 489; S. C.
23 W’k Dig. 278.
Jerome v. Flagg, 15 N. Y. State R. 827; 8. C. 48 Hun, 351.

a. When Proof of Due Diligence Sufficient.

Where itis shown that efforts have been made to serve the
summons upon defendant, and to ascertain his place of resi-
dence, and his whereabouts were unknown, it is sufficient to
confer jurisdiction.

Denman v. McGuire, 101 N. Y. 161; S. C. 23 W’k Dig.
75.

If the defendants are absent, and reside in a foreign State,
it is sufficient to warrant service by publication.
Allen v. Malcolm, 12 Abb. N. S. 335.

Where the proof is clear that the defendant isa resident of
another State, and absolutely located there, it is sufficient, as
no amount of diligence would avail to effect a personal
service in this State.

Hudson v. Kowing, 4 N. Y. State R. 866.

Jerome v. Flagg, 15 N. Y. State R. 827; S. C. 48 Hun, 351.
Chase v, Lawson, 36 Hun, 221 ; 8. C. 21 W’k Dig. 572.
Andrews v. Borland, 10 N. Y. State R. 397.
WHEN PROOF SUFFICIENT. 79°

The absence of any such proof, relating to the sub-
ject of diligence in the effort to serve the summons, is not.
fatal to the jurisdiction of the court, as the court may infer
that no personal service of the papers could be made upon
him in this State, by due diliyence.

Smith v. Mahon, 2 Civ. Pro. 55; 8. C. 15 W’k Dig. 49; S.
C. 63 How. Pr. 382; S. C. 27 Hun, 40.

Where the affidavit stated positively that the defendant’s
administrator then was, and had long been, a resident of B.,
and that deponent had been informed by one §., that the
said defendant was in B. a day or two before, this proof was.
held sufficient to establish the fact that the said defendant.
could not, after due diligence, be found within this State.

Lockwood v. Brantly, 31 Hun, 155.

Where the affiant stated he had learned from one T. that
the defendants resided in other States, said T. being a brother-
in-law of one of the defendants, and plaintiffs attorney de-
posed that he was informed that the defendants were non-
residents, and resided at the places above mentioned; and
further stated, that ‘ the sources of deponent’s information is.
the affidavit of W. annexed hereto, who was employed by de-
ponent to ascertain the residence of said parties, that defend-
ants cannot, after due diligence, be found, within this State, and
that deponent is informed and believes that said defendants
are now at the places above stated’; such affidavits were held
sufficient.

Chase v. Lawson, 36 Hun, 221; 8. C. 21 W’k Dig. 572.

Where the affidavit disclosed, not only that the defendant
resided out of the State, but that inquiries had been made by
one brother, and from an affidavit on file made by another, it
was evident his place of residence could not be discovered,
for the purpose of mailing to him copies of the papers, it was
held amply sufficient.

Weil v. Martin, 1 Civ. Pro. 133.

An affidavit, stating that the defendant, as deponent is in-
80 SERVICE OF SUMMONS BY PUBLICATION.

formed and believes, is not a resident of this State, and as
deponent is informed and believes, resides at a place in an-
other State, named, and that personal service of the sum-
mons cannot, with due diligence, be made upon him in this
State is sufficient to satisfy the requirments of this section.

Walter v. De Graaf, 19 Abb. N. C. 406; S.C. 11 N. Y¥.
State R. 274,

Kennedy v. N. Y. L. Ins. & T. Co., 101 N. Y. 487; S.
C. 23 W’k Dig. 278; rev’g 32 Hun, 35; S. C. 18
W’k Dig. 568.

Seiler v. Wilson, 43 Hun, 629; 8. C. 26 W’k Dig. 297; S.
C. TN. Y. State R. 254.

Van Wyck v. Hardy, 39 How. Pr. 392.

Hudson v. Kowing, 4 N. Y. State R. 866.

Where the affidavit shows that the parties to be served
were not residents of the State, and could not by the observ-
ance of reasonable diligence, be found within its limits to
make a service of the summons upon then, it is sufficient.

McCracken v. Flanigan, 24 N. Y. State R. 439.
Weil v. Martin, 1 Civ. Pro. 133.

Proof that the defendants resided in Ireland, and alleging,
on the part of the plaintiffs’ attorney, his information and
belief, that they could not after due diligence be personally
served, and, on the part of the person who had received copies
of the summons, for service, alleging that he had been unable
with due diligence to make personal service, it was held that
the inability to make such service was sufficiently shown.

Wunnenberg v. Gearty, 36 Hun, 243; S. C. 7 Civ. Pro.

893; 5S. C. 2 How. N. 8. 135; 8. C. 21 W’k Dig.
549.

Where a summons was issued to the sheriff of the city and
county of New York, and he made a return, that he had used
due diligence to find the defendant in this country, but was
unable to do so, this is sufficient to authorize the judge to
pass upon the question of due diligence.

Belmont v. Cornen, 82 N. Y. 256.

Where the defendant had been indicted, and had disap-
peared and he had been searched for vainly, it was held that
WHEN PROOF INSUFFICIENT. 81

the facts were sufficient to give jurisdiction to make the
order.

Wichman v. Aschpurwis, 55 Super Ct. 218; 8.0.18 N. Y.
State R. 339.

As to what is sufficient evidence of inability to serve pro-
cess, to found an order for publication, see,

Van Rensselaer v. Dunbar, 4 How. Pr. 151.

Foot v. Harris, 2 Abb. 454.

Lefferts v. Harris, 10 Abb. N. S. 2n.

Handly v. Quick, 47 How. Pr. 235.

Donnelly v. West, 66 How. Pr. 430.

Wunnenberg v. Gearty, 86 Hun, 243; 8. C.7 Civ. Pro. 393.

Affidavit held sufficient where non-resident defendant is a
corporation.

Coffin v. C. N. P. C. Co., 4 Hun, 625; S. C. 67 Barb. 337.

b. When Proof Insufficient.

An affidavit, that the defendant was a non-resident, and
could not with due diligence be found within the State, is not
sufficient to support an order of publication.

Bixby v. Smith, 3 Hun, 62.
McLeod v. Moore, 15 Civ. Pro. 77.

Where the affiant stated he had not been able to find the
defendant within the State, though he had searched and
inquired for him, at all the places therein where said defend-
ant would be most likely to be found, it was held, not a
sufficient allegation of inability to make personal service
within the State.

Putnam v. Griffin, 19 W’k Dig. 46.

Where the affidavit does not state positively where the
defendant resides, and that a deputy-sheriff went with a sum-
mons to her supposed residence, found the house closed, and
was told by the neighbors that she had gone to Canada with
a man, it is not sufficient proof of inability with due diligence
to serve the summons.

Bingham v. Bingham, 3 How. N. 8. 166.
6
82 SERVICE OF SUMMONS BY PUBLICATION.

Where the affidavit stated that “defendant has not resided
in the State of New York since a date named, and, deponent
is advised and believes, is now a resident of California,” it was
held not sufficient, as it was merely an allegation of non-resi-
dence, and did not tend to establish that defendant could not,
after due diligence, be found within the State.

Carleton v. Carleton, 85 N. Y. 313; rev’g 23 Hun, 251.

And, for the same reason, an affidavit which stated that the
defendants reside in the State of California, but their present
place of residence therein deponent is unable to state, is not

sufficient.
Cook v. Farren, 34 Barb. 95; S. C. 12 Abb. 359; S. C. 11

Abb. 40.

Where the affidavit stated that defendant resided in an-
other State, but frequently visited this State, claiming to own
a house here, it was held insufficient, as not showing that due
diligence had been used to find him, but rather raising a pre-
sumption that he could be found.

Peck v. Cook, 41 Barb. 549.

Where the affidavit alleged “that the defendants are not
residents of this State, but reside in a certain city of another
State, as deponent is informed by defendants themselves in
letters received from them at said place, and believed; also,
that deponent had issued a summons in this action, against
the said defendants, to the sheriff of the city and county of
New York, but that said defendants could not be found, after
due diligence, within this State, and that deponent is in-
formed and believes that said defendants are now in said
city,” the affidavit was held insufficient.

Greenbaum v. Dwyer, 66 How. Pr. 266.

8. Property Within the State.

It has been held that it is not necessary to state that the
defendant has property within the State, in order to give the
court jurisdiction to make the order.

Clarke v. Boreel, 21 Hun 594.
Wood v. St. L. B. & I. Co., 1 Civ. Pro. 220.
AVOIDING SERVICE, 83

But in a late case, the possession of property within the
State was held necessary in order to confer jurisdiction upon
the court, and that fact should be stated in the affidavit.

Bryan v. University Pub. Co., 21 N. ¥. State R. 21; 8. C.
112 N. Y. 382; rev’g 15 N. Y. State R. 9038; S. C. 15
Civ. Pro. 74.

9. Avoiding Service.

Under subdivision two of section 438, the affidavit, instead
of showing the existence of a cause of action, and that the de-
fendant cannot after due diligence be found within the State
must, also, show that, being a resident of the State, the de-
fendant has departed therefrom, with intent to defraud his
creditors, or to avoid the service of the summons, or keeps
himself concealed therein with a like intent.

Towsley v. McDonald, 32 Barb. 604.
Roche v. Ward, 7 How. Pr. 416.

To establish an intent to defraud creditors, the affidavit
must show defendant to have property of which he is about
to make a fraudulent, or illegal disposition, or which he un-
justly refuses to apply to the payment of his debts, or has
secreted or removed, or is about to secrete or remove, or has
fraudulently encumbered.

Towsley v. McDonald, 32 Barb. 604.

An affidavit on information and belief, that defendant has
departed from the State, with the intent of * evading” service,
is not sufficient under the clause as to “ avoiding ”’ service.

Easterbrook v. Easterbrook, 64 Barb. 421.

Where the affidavit stated that the “affiant went to serve
the summons, and was informed by his family and neighbors
that defendant had been absent from the State and that
deponent believes that defendant is absent from the State for
the purpose of defrauding his creditors,” it is not evidence that
he departed with intent to defraud, or avoid service or kept
concealed.

Warren v. Tiffany, 17 How. Pr. 106; S. C. 9 Abb. 66.
84 SERVICE OF SUMMONS BY PUBLICATION.
§ 440.

Order, by whom Made, and Contents.

The order may be made by a judge of the court or
the county judge of the county where the action is
triable.

It must direct that service of the summons, upon
the defendant named, or described in the order, be
made by publication thereof in two newspapers,
designated in the order, as most likely to give notice
to the defendant for a specified time, which the
judge deems reasonable, not less than once a week
for six successive weeks ; or, at the option of the
plaintiff, by service of the summons, and a copy of
the complaint and order, without the State, upon
the defendant personally ; and, if he is an infant,
under the age of fourteen years, also upon the per-
son with whom he is sojourning ; or, if the defend-
ant is a corporation, upon an officer thereof, specified
_In section four hundred and thirty-one, or four hun-
dred and thirty-two of this act. It must also con-
tain either a direction that, on or before the day of
the first publication, the plaintiff deposit in a speci-
fied post-office, one or more sets of copies of the
summons, complaint and order, each contained in a
securely closed, post-paid wrapper, directed to the
defendant, at a place specified in the order; or a
statement that the judge, being satisfied by the afii-
davits upon which the order was granted, that the
plaintiff cannot, with reasonable diligence, ascertain
a place or places where the defendant would prob-
ably receive matter transmitted through the post-
office, dispenses with the deposit of any papers
therein.
COMPLIANCE WITH STATUTE, 85

This section is a revision of part of section 185 of the Code
of Procedure.

The first sentence is from a preliminary clause of the first
sentence of the same section of the Code of Procedure.

The second and third sentences are a substitute for that
portion of such section as reads as follows:

“ The order must direct the publication to be made in two
newspapers to be designated as most likely to give notice to
the person to be served, and for such length of time as may
be deemed reasonable, not less than once a week for six
weeks. In case of publication, the court or the judge must,
also, direct a copy of the summons and complaint to be forth-
with deposited in the post-office ; directed to the person to
be served, at his place of residence, unless it appear that such
residence is neither known to the party making the applica-
tion, nor can, with reasonable diligence, be ascertained by
him.”

The foregoing provision has been amended so as to remove
obscurities as to the meaning of the expressions, “the person
to be served,” “in case of publication,” “ forthwith,” “ place of
residence,” “ party making the application,” etc.

This section was amended by the Laws of 1879, chap. 542, by
substituting the words, “ without the State, upon the defend-
ant personally, if he is of full age, or an infant of the age of
fourteen years or upwards,” for the words, “ upon the defend-
ant personally without the State,” and by adding the words,
“or four hundred and thirty-two.” It was again amended
by the Laws of 1889, chap. 195, by substituting the words,
‘and if he is an infant, under the age of fourteen, also upon
the person with whom he is sojurning,” for the words, “if he
is of full age, or an infant of the age of fourteen years or
upwards.”

COMPLIANCE WITH THE STATUTE.

This section is mandatory, and must be complied with in
order to give the court jurisdiction.

Buford v. N. Y. I. M. 18 N. Y. State R. 400; S. C. 55
Super, Ct. 516.
86 SERVICE OF SUMMONS BY PUBLICATION.

A substantial compliance with the requirements of the
Code, is all that is necessary to give validity to a proceeding
under this section.

Weil v. Martin, 24 Hun, 645.
Brooke v. Saylor, 44 Hun, 555 ; 8. C. 27 W’k. Dig. 2; S.C.
9N. Y. State R. 68.

Where the language used in the order is the equivalent of
the statutory expression, and there isa substantial compliance
with the statute, the order is valid.

Green v. Squires, 20 Hun, 15.

BY WHOIT ORDER MADE.

The court at Special Term has no power to make an order
for the service of the summons, in an action, by publication ;
it should be made by a judge of the court, or the county
judge of the county where the action is triable.

Crosby v. Thedford, 7 Civ. Pro. 245; 5. C. 21 W’k Dig.
544; 8. C. 18 Daly, 152.

Schumaker v. Crossman, 12 W’k Dig. 99.

Bogart v. Sweezey, 26 Hun, 465.

See, Heishon v. K. L. Ins. Co., 77 N. Y. 278.

Hall v. U. 8. R. Co., 31 Hun, 609.

But an order for service of a summons by publication, made
while the Code of Procedure was in force, is not defective,
because it was made by the court, and not by a judge.

Seiler v. Wilson, 12 Civ. Pro. 268.

A judgment in an action where the order of publication
was made by the Special Term of the Supreme Court cannot

be inforced.
Crosby v. Thedford, 18 Daly, 152; 8. C. 21 W’K. Dig. 544;

8. C. 7 Civ. Pro. 245.

Where an order directing the service of a summons by
publication, although in fact made by a justice at chambers,
has a caption as though made at Special Term, the order is
good as a Chamber order.

Phinney v. Broschell, 19 Hun. 116; 8. C. 9 W’k Dig. 532;
S. C. 21 Alb. L. J. 836; aff'd 58 How. Pr. 492; 8. ©.
80 N. Y. 544.
REQUISITES OF THE ORDER. 87

Mojarrieta v. Saenz, 80N. Y. 553; 8. C. 10 W’k Dig. 87.
Coffin v. Lesster, 36 Hun. 347; 8. C. 22 W’k Dig. 11.

And the court has power to subsequently amend the order,
by striking out the caption.
Mojarrieta v. Saenz, 80 N. Y. 553; S. C. 10 W’k Dig. 37.
Coffin v. Lesster, 86 Hun. 347; 8. C. 22 W’k Dig. 11.
When the order is allowed by the judge at chambers, the
caption should be omitted, and the order either indorsed on
the affidavit, or drawn up separately, under the title of the
cause, and signed by the judge at the foot.
1 Wait’s Practice, 523.

GENERAL REQUISITES OF THE ORDER.

In order to sustain the attachment, it is imperative that
the order under which the publication was made should be
valid.

Ladd v. Terre Haute, C. & M. Co., 18 W’k Dig. 209.

The omission of any act essential to jurisdiction will be
fatal to a subsequent judgment.

Cook v. Farren, 34 Barb. 95; S. C. 21 How. Pr. 286.
Peck v. Cook, 41 Barb. 549.

Morrell v. Kimball, 4 Abb. 352.

Talcott v. Rosenburg, 8 Abb. N. 8. 287.

The validity of an order for the publication of a summons
must be judged solely upon the sufficiency of the affidavit
upon which it was granted.

Evertson v. Thomas, 5 How. Pr. 45.
Kendall v. Washburn, 14 How. Pr. 380.
Van Wyck v. Hardy, 11 Abb. 473-476.
Wortman v. Wortman, 17 Abb. 66.
Towsley v. McDonald, 32 Barb. 604.
Peck v. Cook, 41 Barb. 549.

Welles v. Thornton, 45 Barb. 390.
Wafile v. Goble, 53 Barb. 517.
Easterbrook v. Easterbrook, 64 Barb, 421.
Bixby v. Smith, 3 Hun, 60.

Campbell v. Taylor, 9 W'k Dig. 14.

It is to be presumed, from the fact of making the order of
publication, that the affidavits therein recited afforded satis-
88 SERVICE OF SUMMONS BY PUBLICATION.

factory evidence to the judge of the facts requisite to warrant
its allowance, and an omission so to state in the order does
not affect its validity.

Barnard v. Heydrick, 49 Barb. 62; S. C. 2 Abb. N.S. 47;
S. C. 32 How. Pr. 97, 106.

But for the purpose of making the order show prima facie,
that the affidavit furnished satisfactory evidence of these
facts, it is better to insert in the order such statement.

1 Wait’s Pr. 523.
See Fiske vy. Anderson, 33 Barb. 71; S. C. 12 Abb. 8.

It is not necessary that the order should state that it satis-
factorily appeared to the justice, “by the affidavits on which
the order was granted,” that the plaintiff could not ascertain
the residence of unknown defendants. The order is sufficient,
where, after referring to the affidavit, it proceeded, “and it
satisfactorily appearing to me that the plaintiff cannot with
reasonable diligence ascertain a place or places where the
defendants would probably receive matter transmitted through
the post-office, the deposit of any papers therein directed to
said defendants is dispensed with.”

Green v. Squires, 20 Hun, 15.

The order should show that there was a summons, and
identify it.
wdon v. Corbin, 3 How. Pr. 416; S. C. 2 Code R. 3.
As to the effect of omitting the names of the defendants to
be served by publication, in the order directing the publica-

tion, see.
Brooke v. Saylor, 44 Hun, 555; S. C. 27 W’k Dig. 2; S.C.
ON. Y. State R. 68.

A failure to designate, in an order of publication, the par-
ticular officer of a foreign corporation, upon whom service
shall be made without the State, does not vitiate such service
when actually made upon a proper officer of the corporation.

Morrison v. Nat. R. Co., 13 Civ. Pro, 283.

Where the affidavit, and the copies of order, also, sum-
PUBLICATION OF THE SUMMONS. 89

mons and notice served upon the defendants, contain the cor-
rect name, a clerical error in the order of publication, ¢. ¢.,
mistake in the first name one of the defendants, “ Albert”
instead of “ Alfred,” is not sufficient to vitiate the service.
McCully v. Heller, 66 How. Pr. 468.
PUBLICATION OF THE SUMMONS, ETC.

It is not necessary that the order should state in terms
that the two newspapers designated to make the publication
“ were most likely to give notice to the defendants.”

Green v. Squires, 9 W’k Dig. 332; S. C. 20 Hun, 15.
Schroeder v. Lear, 17 W’k Dig. 574.

Where the order was published in a paper, different from
the one directed by the court, although published in the same
place, the publication is irregular.

Brisbane v. Peabody, 3 How. Pr. 109.

Where the summons was recited in the order published,
as being annexed, when in fact the wrong summons was an-
nexed, it was held, that it did not, in any manner, render the

order invalid.
Van Rhade v. Van Rhade, 2 T. & C. 491.

It is doubtful whether chapter 268 of the Laws of 1885,
entitled, “An act to provide for the designation of a news-
paper in the city of Albany, for the publication of certain
public notices,” which provides that “all notices and adver-
tisements required by law to be published in a newspaper, in
actions against foreign corporations, shall be published in said
paper,” applies to a summons in an action against a foreign
corporation, served by publication; but as the act does not
provide, that failure to comply with its terms shall render the
proceedings against the foreign corporation void, even if pub-
lication of a summons comes within the language of the act,
an omission to publish the summons in the paper designated
under the act does not deprive the court of jurisdiction,
where the provisions of the Code of Civil Procedure, in refer-
ence to the publication of a summons, have been in all re-
spects complied with.

Lanier v. City Bk. of Houston, 9 Civ. Pro. 161.
90 SERVICE OF SUMMONS BY PUBLICATION.

The publication need not be in all the daily editions of the

newspaper.
Everson v. Johnson, 22 Hun, 115.

The notice need not be published on the same day in each
week, during the six weeks. Seven days interval between
publication is not essential.

Bachelor v. Bachelor, 1 Mass. 256.
Steinle v. Bell, 12 Abb. N. S. 172.

‘Wood v. Knapp, 100 N. Y. 114.
Ronkendorff v. Taylor, 4 Pet. 361.

A publication for seventy days was held to be a publication
for ten weeks.

People v. Gray, 10 Abb. 468.

And a publication for thirty-nine days was held to be a
publication for six weeks.

Oleott v. Robinson, 21 N. Y. 150.

The omission of the words “in the said city of New York,”
after “number 13 Chamber street,” in the copy summons,
published, designating the place of the service of a copy of
the answer, is not a valid objection where the summons was
dated at New York. The date is a part of the summons.

Van Wyck v. Hardy, 4 Abb. Dec. 496; S. C. 89 How. Pr.
392; aff’g 11 Abb. 473; 20 How. Pr. 222.

A literal and exact copy, in every respect, is not requisite.
It is sufficient that the copy summons published is substan-
tially a correct copy of the original. The omission of un-
necessary words cannot vitiate the proceedings.

Van Wyck v. Hardy, 4 Abb. Dec. 496; S. C. 39 How. Pr.
892,

Where the summons served by publication misstates the
day of the month on which the complaint was filed, this is
not such an irregularity as affects the judgment. If the de-
fendant has been misled by the error, he may be relieved on

the merits.
Jacquerson v, Van Erben, 2 Abb. 315.
PERSONAL SERVICE WITHOUT STAT 91

The publication of a summons is good, where the only
statement of the place where it has been filed is contained in
a note appended to a copy of the summons, declaring that
“it has been filed in said clerk’s office,” the summons itself,
stating the city and county where such clerk’s office is situ-
ated. The summons need not designate the name of the
State where it will be filed.

Cook v. Kelsey, 19 N. Y. 412.

Where the summons, in a case of service by publication, did
not specify when the complaint was filed, it is a jurisdic-
tional defect.

Smith v. Rowe, 4 Law Bull. 60.

If defendant is dead at the time publication is made, judg-
ment by default will be held void.

Howell v. Leavitt, 95 N. Y. 617, 620.

PUBLICATION OF THE COMPLAINT.
Where there is an order of publication against an absent
defendant, the complaint need not be published.

Anonymous, 3 How. Pr. 293; 8. C. 1 Code R. 102.

PERSONAL SERVICE WitTHOUT THE STATE.

Where service of a summons by publication, upon a non-
resident defendant, is ordered, a personal service out of the
State is equally valid to give jurisdiction, as if service had
been made by publication, and deposit in the post-office.

Jenkins v. Fahey, 73 N. Y. 355.

Smith v. Wells, 69 N. Y. 600.
Waffle v. Goble, 58 Barb. 517.

The order must require a copy of the order, as well as of
the summons and complaint to be served.

McCool v. Boller, 14 Hun 73.
Johenning v. Johenning, 4 Civ. Pro. 144, 145.

The order must direct a publication, and must also con-
92 SERVICE OF SUMMONS BY PUBLICATION.

tain the alternative direction, that the service may be made
on the defendant personally, out of the State, at the option of
the plaintiff.

Ritten v. Griffith, 16 Hun 455; S. C. 8 W’k Dig. 54.

Mercer v. So. Bk of N. O., 1 Civ. Pro. 144 n.
Brooke v. Saylor, 44 Hun 535.

But it has been held, that it was not necessary in every
case, that the order should provide for the optional right in
the plaintiff to make personal service, outside the limits of
the State.

Weil v. Martin, 24 Hun 647; S. C. 1 Civ. Pro. 133,
O'Neil v. Bender, 30 Hun 204; S. C. 13 W’k Dig. 47.
Under the Code of Procedure, it was held, that publication
need not be made, as required by the order, if personal service
was effected without the State.
Jenkins v. Fahey, 73 N. Y. 355.
Smith v. Wells, 69 N. Y. 600.

Waffle v. Goble, 53 Barb. 517.
See Kerner v. Leonard, 15 Abb. N. S. 96.

But, under the present Code, it was held, that the direction
as to publication was necessary in all cases.

Ritten v. Griffith, 16 Hun 455; S. C. 8 W’k Dig. 54.

Weil v. Martin, 24 Hun 647; S.C. 1 Civ. Pro. 133, u.

Buford » N. Y. I. M., 18 N. Y. State R. 401; S. C. 55
Super. Ct. 516. :

But see, sections 488, 448, and 1541, from which it would
seem, that a separate order may b2 made directing only per-
sonal service without the State.

See 1 Civ. Pro. 147, n.
McCully v. Heller, 66 How. Pr. 471.

Personal service of a summons and complaint can be made
out of the State, only when publication is ordered.

Brooklyn T. Co. v. Bulmer, 49 N. Y. 84.
Where publication and mailing is ordered, personal service

out of the State is only exquivalent to mailing, and can have
no greater effect.
DEPOSIT OF PAPERS IN POST-OFFICE. 93

Fiske v. Anderson, 12 Abb. 8; S. C. 33 Barb. 71.
Brooklyn T. Co. v. Bulmer, 49 N. Y. 84.

When the summons and complaint are served on the de-
fendants personally without the State, a copy need not be
mailed to them.

- McCully v. Heller, 66 How. Pr. 468.
Abrahams v. Mitchell, 8 Abb. 123.
Contra, Litchfield v. Burwell, 5 How. Pr. 341; S. C. 1
Code N. S. 42.

DEPOSIT OF PAPERS IN THE POST-OFFICE.
The order should contain a direction for mailing, ora state-
ment, in a proper case, that the mailing be dispensed with.

Ritten v. Griffith, 16 Hun, 454; S.C. 8 W’k. Dig. 54.
Mercer v. So. Bk of N. O., 1 Civ. Pro. 144, n.

Where the order does not direct that a copy of the sum-
mons and complaint be mailed, this is a fatal irregularity,
Warren v. Tiffany, 9 Abb. 68; 8. C. 17 How. Pr. 106.
Towsley v. McDonald, 32 Barb. 604.
Buford v. N. Y. I. M., 18 N. Y. State R. 400; S. C. 55
Super. Ct. 516.

Under the Code of Procedure, it was necessary, that the
order should state, that a copy of the summons and complaint
be deposited in the post-office forthwith.

Hyatt v. Wagenright, 18 How. Pr. 248.

Smyth v. Rowe, 4 Law Bull. 60.

Van Wyck v. Hardy, 11 Abb. 474; aff’d39 How. Pr. 392;
8. C. 4 Abb. Dec. 496.

Now, they may, together with the order, be deposited by
the plaintiff in a specified post-office, on or before the day of
the first publication.

Code of Civil Procedure, § 440.

And the order should direct, that they be so mailed.
McCool v. Boller, 14 Hun, 73.

It has been held, that the order should direct a copy to be
deposited in the post-office, addressed to the defendant, at his
place of residence, though it appear from the affidavit, that he
has departed therefrom.
94 SERVICE OF SUMMONS BY PUBLICATION.

Towsley v. McDonald, 32 Barb. 604.
Warren v. Tiffany, 17 How. Pr. 106; S. C. 9 Abb. 66.

And that an order for the service of a summons by publica-
tion, or personal service out of the State is defective, unless
it provides for the mailing of the papers to the defendant.

Strong v. Spittlehouse, 2 Law Bull. 11.
Buford v. N. Y. I. M. 18N. Y. State R. 400; 8. C. 55
Super. Ct. 516.

But the better authority seems to be, that where the resi-
dence of the defendant is unknown, and cannot be ascertained,
the order need not contain a requirement for the deposit of
a copy of the summons and complaint in the post office.

Walker v. Reiff, 18 W’k Dig. 331.
Ritten v. Griffith, 16 Hun, 454; 8. C. 8 W’k Dig. 54.

The order is fatally defective which omits to designate the
post-office in which the copy, summons, etc., should be de-

posited.
Walter v. De Graff, 19 Abb. N. C. 406; S. C. 11 N. Y.

State R. 274.
McCool v. Boller, 14 Hun, 73.

Depositing a paper in a printed box attached to a lamp-
post, may, by a liberal construction of the statute, be regarded
as equivalent to depositing the same in the post-office.

Greenwich Bank v. De Groot, 7 Hun, 210.
M. & T. Bank v. Crow, 5 Daly, 191.

Service by mail in an envelope, indorsed with the direction
often used on letters, to “return if not called for,” etc., is
not vitiated thereby, unless it appears that by reason of the
return, in obedience to the indorsement, the person to be
served failed to receive the papers.

Gaffney v. Bigelow, 2 Abb. N. C. 311; rev’g 48 How. Pr.
475.

Where the order directs the mailing of a copy of the sum-
mons and complaint to the person to be served at his
place of residence, which is specified in the order, a publi-
cation of the summons, and a deposit in the post-office,
DEPOSIT OF PAPERS IN POST-OFFICE, 95:

addressed as required by the order, is necessary, or, in lieu
thereof, a personal service out of the State.

Smith v. Wells, 69 N. Y. 600.

Where, therefore, in such case, a copy of the summons and
complaint is mailed and addressed to the defendant at a
different place from that stated in the order, and there is no.
personal service, and no appearance of the defendant, the
court acquires no jurisdiction.

Smith v. Wells, 69 N. ¥. 600.

An order for service by mail required copies of the sum-
mons and complaint to be delivered to the defendant at his
place of residence, “ Berlin, Germany.” The direction was.
to him at the “ Union Club, Berlin.” It was held that, as the
affidavit stated that this was his place of residence, it showed
a substantial compliance with the order.

Van Rhade v. Van Rhade, 2 T. & C, 491.

Where the case is within subd. 2, of section 438, the order
should contain a direction in reference to the service at a
specified post-office, or a statement that the judge was satis-
fied by the affidavits upon which the order was granted, that
the plaintiff could not, with reasonable diligence, ascertain
where the defendant would probably receive matter trans-
mitted through the post-office.

McCool v. Boller, 14 Hun, 73.

And where, in an action for divorce, an order was ob-
tained for the service of the summons by publication upon
affidavits which did not show that the plaintiff could not, with
reasonable diligence, ascertain a place where the defendant
would probably receive matter transmitted through the post-
office, a judgment entered on such service will be set aside.

Jewitt v. Jewitt, 18 N. Y. State R. 2388.

Where a copy of the summons and complaint was mailed
to each non-resident named in the order, and the notice ac-
companying the copy summons so mailed, instead of being
the notice that was published with the summons, stating that
96 SERVICE OF SUMMONS BY PUBLICATION.

the summons was served by publication, pursuant to an order
of the judge who made it, was a notice that the summons
was served without the State of New York, pursuant to the
order of the judge, and where the notice which was published
failed to be directed to the defendants alone, who were
served with the summons by publication, it was held that
the failure to comply with the requirements of the Code, in
these respects, did not so far invalidate the service as to de-
prive the court of jurisdiction over these absent defendants.

Loring v. Binney, 3 How, N. S. 120; S. C. 38 Hun, 156 ;
S. C. 22 W’k Dig. 500.

SERVICE ON NCN RESIDENT INFANT DEPENDANT.

It was formerly held, that where a summons was served
upon a non-resident infant defendant, it was sufficient, if, in
addition to the required publication, a copy of the summons
and complaint were deposited in the post-office, directed to
the infant at its place of residence.

Home Ins. Co. v. Head, 30 Hun, 405; 8. C. 18 W’k Dig.
229.

But, by the amendment to this section in 1889, if the in-
fant is under the age of fourteen years the papers must be
served also upon the person with whom he is sojourning.

Laws of 1889, chap. 195.

Service upon the infant is not necessary, in partition, if the
infant voluntarily appears in the action by its guardian ad

litem.
Thistle v. Thistle, 66 How. Pr. 472 ; S. C. 5 Civ. Pro. 43. -

§ 441.

When Publication must be Commenced; When Service
Deemed Complete.

The first publication in each newspaper designated in
the order, or the service upon the defendant with-
out the State, must be made within three months’
after the order is granted. For the purpose of reck-
WHEN SERVICE DEEMED COMPLETE, 97

oning the time within which the defendant must
appear or answer the service by publication is com-
plete upon the day of the last publication, pursuant
to the order; and service made without the State is
complete upon the expiration thereafter of a time
equal to that prescribed for publieation.

This section is a substitute for parts of sections 185 and
187 of the Code of Procedure.

Those provisions were as follows:

When publication is ordered, personal service of a copy of
the summons and complaint, out of the State, is equivalent
to publication and deposit in the post-office.

Part of section 135.

In the cases mentioned in § 135, the service of the sum-
mons shall be deemed complete at the expiration of the time
prescribed by the order for publication.

Code of Procedure, § 137.

The restriction upon the time within which the plaintiff
must avail himself of his order is new.

Throop’s Code, § 441, n.

1. Computation of Time.

In service by publication, the term is to be computed by
excluding the first day, and including the full period required
for publication.

Brod v. Heymann, 3 Abb. N. 8. 396.

The full period is six weeks, or forty-two days.

Brod v. Heymann, 3 Abb. N.S. 396.
Richardson v. Bates, 23 How. Pr. 516.

The service is then complete.

Brooklyn T. Co. t. Bulmer, 49 N. Y. 84.
Mar. Nat. Bk. v. Pac. Nat. Bk. 11 Abb. N. C. 104.

Section 440 of the Code requires a full six weeks’ publica-
tion, and not merely six publications in six different weeks.
98 SERVICE OF SUMMONS BY PUBLICATION.

Mar. Nat. Bk. v. Pac. Nat. Bk. 11 Abb. N. C. 104; S. C.
15 W’k. Dig. 23; S. C. 89 N. Y. 397.

The publication of the summons must be made continuously

in each paper, but not concurrently.
Herbert v. Smith, 6 Lans. 494.

The publication must be made during six weeks, after the
granting of the judge’s order. Where it was made for six
weeks before the granting of the order such publication was
held unauthorized and nugatory.

Hallett v. Righters, 18 How. Pr. 43.

2. Commencement of Time to Answer.

A defendant has twenty days to appear and answer, after
the expiration of the time prescribed by the order for the
publication of the summons.

Tomlinson v. Van Vetchen, 6 How. Pr.199 ; 8, C. 1 Code
R. N.S. 317.
Abrahams v. Mitchell, 8 Abb, 123,

Richardson v. Bates, 23 How. Pr. 516.
Brod v. Heymann, 3 Abb. N. 8. 396.

Where personal service is thus made out of the State, such
service is not complete until the time prescribed for the
publication has expired, and defendant has twenty days
thereafter to answer.

Tomlinson v. Van Vetchen, 6 How. Pr. 199; 1 Code N.
8. 317.

Abrahams v. Mitchell, 8 Abb. 123.

Richardson v. Bates, 23 How. Pr. 516.

Mar. Nat. Bk. v. Pac. Nat. Bk. 11 Abb. N. C, 1043; 8. C.
89 N. Y. 897; 8. C. 15 W’k Dig. 24.

Brooklyn T. Co. v. Bulmer, 49 N, Y. 84.

Overr’l’g Dykers v. Woodard, 7 How. Pr. 313.

And Sherman v, Strakosh, Transcript, Mar. 8rd, 1865.

Effecting service out of the State before the expiration of
the time for publication does not shorten the time to answer.
Kerner v. Leonard, 15 Abb. N. S. 96.

Defendant’s return to the State before the time for publi-
cation expires does not affect the plaintiff’s right to enter
WHEN WARRANT OF ATTACHMENT GRANTED, 99

judgment upon his default, or require personal service of
the summons, upon him,
Duche v. Voisin, 18 Abb. N. C. 358.

No jurisdiction over a defendant is obtained by the service
of a summons by publication, until such publication is com-
plete. Where the rights of one of two parties plaintiff do
not survive to the other, the death of one before the service
of process by publication is complete renders the service of no
avail ; and, although completed after his death, does not confer
jurisdiction.

Paget v. Pease, 17 Civ. Pro. 234,

§ 638.

Service by Publication, when Warrant of Attachment is
Granted.

The warrant may be granted by a judge of the
court, or by any county judge, to accompany the
summons, or at any time after the commencement
of the action, and before final judgment therein.
Personal service of the summons must be made upon
the defendant, against whose property the warrant
is granted, within thirty days after the granting
thereof; or, else, before the expiration of the same
time, service of the summons by publication must
be commenced, or service thereof must be made
without the State, pursuant to an order obtained
therefor, as prescribed in this act; and if publica-
tion has been, or is thereafter commenced, the ser-
vice must be made complete, by the continuance
thereof.

Based upon sections 228 and 227 of the Code of Procedure
The provisions of this section, relating to service of the
summons, applies to all courts having authority to issue
100 SERVICE OF SUMMONS BY PUBLICATION.

attachments, and, therefore, to the Court of the Common Pleas
of New York.
Allen v. Meyer, 73 N. ¥. 1.

The court acquires jurisdiction by the granting of the war-
rant, accompanied by the summons ; but such jurisdiction is
conditional, and is liable to be divested, if the summons is not
served within the thirty days after the granting of the war-
rant.

Code of Civil Procedure, § 416.
Waffle v. Goble, 53 Barb. 517.

Where an attachment was granted against the property of
the defendant, as a non-resident, at the time of issuing the
summons, and no order of publication was obtained, within
thirty days thereafter, and the defendant was not personally
served with the summons during said period, it was held,
that the attachment was thereby invalidated, and should be
set aside on motion.

Taddiken v. Cantrell, 1 Hun, 710; 8S. 0.4 T. & C, 222.
Simpson v. Burch, 4 Hun, 315.

Waffle v. Goble, 53 Barb. 517; S. C. 35 How. Pr. 356.
Mojarrieta v. Saenz, 80 N. Y. 547; S. C. 10 W’E Dig. 37.
Blossom v. Estes, 84 N. Y. 614; S. C. 12 W’E Dig. 131.
Kelly v. Countryman, 15 Hun, 97.

Betzmann v Brooks, 31 Hun, 271. °

Cossitt v. Winchell, 39 Hun, 439.

Taylor v. Tronscoso, 76 N. Y. 599.

Southern, etc., Co. v. Sherwin, 1 Civ. Pro. 46.

See Tyler vy. Williams, 9 Daly, 455.

But such omission does not render the proceedings void, as
regards third persons.

Simpson v. Burch, 4 Hun 315.

The defendant may waive the effect of such omission.

Simpson v. Burch, 4 Hun 315.
Gere v. Gundlach, 57 Barb. 18.

Personal service of the summons, and complaint, made
without the State, under an order for service by publication,
etc., within thirty days after the granting of a warrant of at-
WHEN WARRANT OF ATTACHMENT GRANTED, 101

tachment, is a sufficient compliance with this section, to pre-
serve the lien of attachment.

United V. C. Co. v. Tritle, 20 Abb. N. C. 57.

The provisions of this section, requiring service to be made,
or, if by publication, to be commenced within thirty days, was
designed to prevent the abuse of the writ and the injustice
which might be occasioned by delay, in advising the defend-
ant of the seizure of his property.

Taddiken v. Cantrell, 1 Hun, 710; 8. C. 4 T. & C. 222.

Judgment may be entered upon failure to answer, within
twenty days after personal service of the summons and com-
plaint within the State, although the time has not expired for
answering, upon a prior service without the State, under an
order for publication, etc.

United V. C. Co. v. Tritle, 20 Abb. N. C. 57.

A voluntary general appearance by the defendant, before
the expiration of the thirty days, within which the summons
must be served, is equivalent to personal service upon him
within this section.

Pomeroy v. Ricketts, 91 N. Y. 668; 8. C. 16 W’k Dig. 327;
aff’'g 27 Hun, 243; S, C. 15 W’k Dig. 25.

Catlin v. Moss, 2 Civ. Pro. 201; 8. C. 15 W’k Dig. 14.

Tuller v. Beck, 46 Hun, 519; 8. C. sub. nom.

Fuller v. Beck, 12 N. Y. State R. 591.

And such appearance dispenses with the necessity of con-
tinuing the publication to keep alive the attachment.
Tuller v. Beck, 46 Hun, 519.

But, if the appearance is made after the thirty days has
expired, the court will not regain the jurisdiction which it has
lost, by a failure to serve the summons within the time re-
quired, and the attachment is not revived or validated.

Blossom v. Estes, 84 N. Y. 614; S. C. 12 W’k Dig. 181.
Cossitt v. Winchell, 39 Hun, 439.

A request on the part of the defendant, against whom an
attachment has been issued, to suspend legal proceedings, does
102 SERVICE OF SUMMONS BY PUBLICATION.

not excuse a failure to serve the summons, or to commence
publication within the time prescribed by this section.
Mojarrieta v. Saenz, 80 N. Y. 547; S. C. 10 W’k Dig. 36.

Where an attachment was issued before the service of the
summons in an action, and thereafter, upon a return of ser-
vice thereof, by the sheriff, judgment was entered by default,
and execution issued; and it appeared that the defendant
was never actually served with the summons, but was suffi-
ciently advised of the proceedings, to protect his rights, and
defendant had moved, after execution had been issued, for
leave to set aside the execution and attachment, and to open
the judgment and permit him to defend, it was held, that the
service was sufficient to give the court jurisdiction, and the
motion to vacate the attachment was denied.

Putnam Co. C. W. v. Jochen, 8 Civ. Pro. 424; S.C 3;
How. N. 8S. 163.

Where a warrant of attachment is granted in an action
against two defendants jointly liable, service of the summons
upon one of such defendants, within thirty days after the
granting of the warrant, is sufficient to uphold the attacb-
ment.

Orvis v. Lambeau, 2 McC. C. P. 250.
Orvis v. Goldschmidt, 2 Civ. Pro. 314.

But it has been decided, that. where a warrant of attach-
ment was issued in an action against a firm consisting of two
members, and thereafter one of the partners was personally
served with the summons, but the other was not, nor were
proceedings to serve him therewith by publication commenced
within thirty days, the attachment ceases to be a lien upon
the firm property.

Donnell v. Williams, 21 Hun, 216; 8. C. 59 How. Pr. 68;
S. C. 10 W’k Dig. 130.

The conditional jurisdiction acquired in such cases, where
the service of the summons by publication was duly com-
menced, is divested, and the attachment falls, by the death of
WHEN WARRANT OF ATTACHMENT GRANTED. 103

the defendant before such service is made complete by the
continuance of the publication for the required period.
Barron v. 8. B. 8. M. Co., 18 Abb. N. C. 352.

But where the service was not made within thirty days,
although the service was prevented by defendant’s death, and
an order continuing the action, against his representatives
was obtained, and they appeared, it was held, that a warrant
and levy thereunder were void.

Kelly v. Countryman, 15 Hun, 97.

If the service of a summons by publication has been com-
menced, before an attachment is granted, the requirements of
the statute, as to service of the summons, are sufficiently com-
plied with.

Baron v. Biaren, 3 Law Bull. 50.

Where an order for the publication of a summons was ob-
tained on the thirtieth day after the granting of the warrant
of attachment, and on that day, copies of the summons, and
notice were delivered to one newspaper, and published, but
were not published in another paper until the next day, it
was held, that the publication was not commenced within
thirty days, as required by this section, and the attachment
was vacated.

Taylor v. Tronscoso, 76 N. Y. 599.

Under the provisions of this section requiring the service of
the summons in an action wherein an attachment has been
granted, “within thirty days after the granting thereof,”
when the thirtieth day comes on Sunday it must be excluded,
and a service upon the next day is sufficient.

Gribbon v. Freel, 98 N. Y. 93; 5. 8. 65 How. Pr. 278; S.
C. 2 McC. C. P. 482.

Where it appears that defendants are non-residents, and
engaged in business at their residences, the court may, on an
application for an attachment, infer that no personal service
of the papers could be made upon them in this State, by due
diligence. In such a case, absence of proof of diligence in
104 SERVICE OF SUMMONS BY PUBLICATION.

the effort to serve the summons does not deprive the court
of jurisdiction.
Smith v. Mahon, 2 Civ. Pro. 55; aff’d 2 Civ. Pro. 60.

If the publication is made under an invalid order, the at-
tachment falls.
Ladd v. T. H. C. & M. Co., 13 W’k Dig. 209.

The fact that an attachment granted in an action has been
vacated is no ground for vacating an order of publication
subsequently obtained.

Putnam v. Griffin, 19 Wk. Dig. 46.

To sustain the warrant the summons must be personally
served, or service by publication must be commenced. Sub-
stituted service of the summons, under section 485 of the
Code of Civil Procedure, is not sufficient to support the at-
tachment.

Bogart v. Swezey, 26 Hun, 463.

§ 442.

Papers to be Filed; Notice to Defendant.

‘Where service is made by publication, the sum-
mons, complaint and order, and the papers upon
which the order was made, must be filed with the
clerk, on or before the day of the first publication ;
and a notice, subscribed by the plaintiff’s attorney,
and directed only to the defendant, or defendants
to be thus served, substantially in the following
form, the blanks being properly filled up, must be
subjoined to, and published with the summons :

“To : The foregoing summons is served upon
you by publication, pursuant to an order of
(naming the judge and his official title), “dated the
day of , 18 , and filed with the complaint, in the
office of the clerk of at
PAPERS TO BE FILED; NOTICE. 105

This section is based upon section 185 of the Code of Pro-
cedure, which read as follows:

“ And in all cases where publication is made, the complaint
must be first filed, and the summons, as published, must state
the time and place of such filing.”

1. Filing Papers.

The service by publication of a summons for the commence-
ment of an action is insufficient, unless the complaint is filed
with the clerk, on or before the day of the first publication,
and a judgment entered upon a service thus defective, is a
nullity.

Kendall v. Washburn, 14 How. Pr. 380.
Smith v. Rowe, 4 Law Bull. 60.

The fact that the summons and complaint are mailed be-
fore the filing of the order for service by publication does.
not invalidate the service.

Silleck v. Heydrick, 2 Abb. N. S. 57.
Barnard v. Heydrick, 2 Abb. N.S. 47; 8. C. 49 Barb. 623,
8. C. 32 How. Pr. 97.

2. Notice.

An error in stating the name of the justice by whom the
order was made, does not deprive the court of jurisdiction.

La Farge v. Mitchell, 4 Law Bull. 36.

Where the service of the summons was duly made by
publication, except that the notice required by this section
was not specially directed to the defendants so served, and
incorrectly stated that the summons was “served without the
State,” instead of stating that it was served “ by publication,”
it was held that the court acquired jurisdiction of the persons:
of the defendants so served. That the failure literally to
comply with the directions of the Code concerning the form
of the notice which was to be published, but not in fact
served, or required to be served, upon either of the defend-
106 SERVICE OF SUMMONS BY PUBLICATION.

ants, was a mere irregularity that did not deprive the court
of the jurisdiction obtained by the service of the summons.

Loring v. Binney, 38 Hun, 152; 8. C.3 How. N. S. 125;
S. C. 8 Civ. Pro. 297; 8S. C. 22 W’k Dig. 500.

§ 443.

Papers to be Filed ; Notice where Service is made with-
out the State.

Where service is made without the State, the
papers specified in the last section must be pre-
viously filed ; and a notice must be served with the
summons in all respects like the notice required by
the last section, except that the words, ‘‘ without the
State of New York,” must be substituted for the
words, ‘‘ by publication.”

This section is entirely new.

The notice specified in this section need not be served,
where the service is made by publication and mailing, and
not by personal service without the State.

La Farge v. Mitchell, 4 Law Bull. 36.

The omission of the words, “without the State,” from the
notice under this section is not such an irregularity as to
render the service void.

McCully v. Heller, 66 How. Pr. 468.

The insertion of the words, “by publication,” instead of
the words, “ without the State of New York,” in the notice,
indorsed upon the summons, is not a valid objection to title;
it is not jurisdictional where the defendant has voluntarily
appeared in the action.

Thistle v. Thistle, 66 How. Pr. 472; 8. C. 5 Civ. Pro. 43.

Where, in personal service to be made without the State,
PAPERS TO BE FILED; NOTICE. 107

the notice required by this section, to be subjoined to the
summons was not subscribed by the plaintiff’s attorney, and
omitted the day of the month on which the order was granted,
pursuant to which such service was made, it was held, that
neither of these defects was fatal nor jurisdictional.

Orvis v. Lambeau, 2 McC. C. P. 250.
Orvis v. Goldschmidt, 2 Civ. Pro. 314;S. C. 4 Law Bull. 93.

§ 1541.

Service by Publication where Party is unknown ; Notice
to Defendant.

Where a defendant, having a share or interest in
the property, is unknown, or where his name, or
part of his name, is unknown, and the summons is
served upon him by publication, or without the
‘State, pursuant to an order for that purpose, as pre-
scribed in article second of title first of chapter fifth
of this act, (sections 438 to 444 inclusive,) the
notice subjoined to the copy of the summons, as
published, or served therewith, must, in addition to’
the matters required in that article, state briefly the
object of the action, and contain a brief description
of the property.

2R. 8. 319, § 12.

This section annuls the law, as settled in Sandford v.
White, 56 N. Y. 359.
108 SERVICE OF SUMMONS BY PUBLICATION.

§ 1774.

Service of Summons by Publication in Matrimonial
Actions.

In an action brought as prescribed in this title, a
final judgment shall not be rendered in favor of the
plaintiff, upon the defendant’s default in appearing
or pleading, unless the summons and a copy of the
complaint were personally served upon the defend-
ant; or the copy of the summons delivered to the
defendant ; upon personal service of the summons,
or delivered to him without the State, or published
pursuant to an order, for that purpose, obtained as
prescribed in chapter fifth of this act, contains the
following words, or words to the same effect, legibly
written, or printed upon the face thereof, to wit:
* Action to annul a marriage”; ‘“‘ Action for a
divorce” ; or ‘‘ Action for a separation’’; according
to the article of this title, under which the action is
brought. Where the summons is personally served,
but a copy of the complaint is not served therewith ;
or, where a copy of the summons and a copy of the
complaint are delivered to the defendant without
the State, the certificate or affidavit proving service,
must affirmatively state in the body thereof, that
such an inscription, setting forth a copy thereof, was
so written or printed upon the face of the copy of
the summons delivered to the defendant.

This section is new.
Where the original summons in an action of divorce, had
indorsed on the face thereof, a notice of what the action was
PROOF OF SERVICE BY PUBLICATION. 109

brought for, as required by this section, but the copy of the
summons served did not have such notice thereon, it was
held that this omission did not render the summonsa nullity,
but the court could allow an amendment thereof.

“Sears v. Sears, 9 Civ. Pro. 432.

§ 444,

Proof of Service by Publication.

Proof of the publication of the summons and
notice must be made by the affidavit of the printer
or publisher, or his foreman or principal clerk.
Proof of deposit in the post-office, or of delivery of
a paper required to be deposited or delivered by the
provisions of this article, must be made by the affi-
davit of the person, who deposited or delivered it.

This section was taken from the Code of Procedure, section
138, subd. 3, which provision was amended, so as to allow the
affidavit of the publisher, as well as the printer.

Before this provision was amended, as indicated above, it
was held, that the affidavit of the publisher of the paper was
sufficient proof of service.

unce v. Reed, 16 Barb. 350.

It has been held, that the proof of publication may be made
by the editor of the paper.
Pennoyer v. Neff, (U. S. Sup. Ct.) 6 Wk. Dig. 160.

An affidavit of mailing of the complaint, that it was mailed,
“on or about” a day named, is fatally defective.
Smyth v. Rowe, 4 Law Bull. 60.

An affidavit of a person, that he deposited a copy of the
summons and complaint, “duly directed,” to the defendant
at Belleville, N. J., and paid full postage thereon, there being
a regular mail communication between the city of New York
110 SERVICE OF SUMMONS BY PUBLICATION.

and Belleville, was held sufficient to show deposit in the post-
office at New York City.
Steinle v. Bell, 12 Abb. N. S. 171.

The official certificate of the sheriff of another State, is not.
evidence in this State of the service of the papers. The proof
should be made in the form of an affidavit.

Morrell v. Kimball, 4 Abb, 352.

§ 445.

Defendant, When allowed to Defend.

Where the summons is served, pursuant to an
order made as prescribed in this article, and the
defendant so served does not appear, he or his
representatives, on application, and sufficient cause
shown, at any time before final judgment, must be
allowed to defend the action; and, except in an
action for divorce, or wherein the contrary is ex-
pressly prescribed by law, the defendant, or his
representative, must, in like manner, upon good
cause shown, and upon just terms, be allowed to de-
fend, after final judgment, at any time within one
year after personal service of written notice thereof;
or, if such a notice has not been served, within seven
years after the filing of the judgment-roll. If the
defense is successful, and the judgment, or any part
thereof, has been collected or otherwise enforced,
such restitution may thereupon be compelled, as
the court directs ; but the title to property, sold, to
a purchaser in good faith, pursuant to a direction
contained in the judgment, or by virtue of an execu-
tion issued upon the same, shall not be affected
thereby.
DEFENDANT ALLOWED TO DEFEND. 111

This is part of section 185, of the Code of Procedure, so
amended, as to remove obscurities, and adapt it to all cases
arising under this article.

This section does not deprive the courts of power to opena.
default in a divorce case, where the summons is served by
publication.

Brown v. Brown, 58 N. Y. 609.

To entitle a defendant to come in and defend under this.
section, he must show that there has been some irregularity
in the proceedings.

Roche v. Ward, 7 How. Pr. 416,

It is only where the service is substituted, or made by
publication, that the defendant may be allowed to be let in,
to defend in certain circumstances, which would debar him.
if the service were personal.

McCarthy v. McCarthy, 13 Hun, 581.

IRREGULAR, DEFECTIVE OR FRAUDULENT SERVICE.

What is such Service.

A defective service includes both irregular and void service.
It has been held that a defect, which can be waived, by a
party, is an irregularity, whereas, if it cannot be waived, it is
a nullity, and renders the process or proceeding in which it
occurs totally null and void.

Clapp v. Graves, 26 N. Y. 420.
Talcott v. Rosenburg, 8 Abb. N. 8. 291.

Where the service of a summons is made by a party to the
action, such service is an irregularity.

Myers v. Overton, 2 Abb. 344; 8. C. 4 E. D. Smith, 428.
Hunter v. Lester, 18 How. Pr. 3473; 8. C. 10 Abb. 260.

If the service of the summons is made on the Sabbath, it is
utterly void.
Hastings v. Farmer, 4 N. Y. 293.
112 SERVICE OF SUMMONS BY PUBLICATION.

And a service of a summons is void, if made on an elector
on an election day.

Meeks v. Noxon, 1 Abb. 280.
And cases, cited, ante, page 14.

The service of a summons is void, if made by violence.
Davison v. Baker, 24 How. Pr. 39.

Or, by wrongfully entering the house of the person served.
Mason v. Libbey, 1 Abb. N. C. 354.

Fraudulent service, on the other hand, is a service which
may be in form within the statute, or the rules of law, and
yet be in violation of the spirit and intent, and with the
preconceived design of evading such legal provisions.

1 Wait’s Pr. page 540.

As where a party has been inveigled within the jurisdiction
of the court by a trick or deception, for the purpose of effect-
ing service upon him, such service may be set aside.

Dunham ». Cressy, 21 N. Y. State R. 266.
Metcalf v. Clark, 41 Barb. 45.
And cases cited, ante, page 11, 12.

The court acquires no jurisdiction of the person of the
defendant served, by a void service.

Meeks v. Noxon, 1 Abb. 280.
8. C. Weeks v. Noxon, 11 How. Pr. 189.

Any judgment entered before the full period of publication
has elapsed, together with twenty days thereafter, is prema-
ture, and irregular, and should be set aside.

Brod v. Heymann, 3 Abb. N.S. 396.

Amendment of Irregularities,

After service is complete, the court can amend whatever is
irregular, but cannot amend any of the proceedings tending
to confer jurisdiction.

Hallett v. Righters, 13 How. Pr. 43.
Kendall v. Washburn, 14 How. Pr. 380.
REMEDY FOR DEFECTIVE SERVICE. 113

Talcott v. Rosenburg, 8 Abb. N. S. 287.

Hoffman v. Fish, 18 Abb. 76.

Farnham v. Hildreth, 32 Barb. 277.

Cook v. Farren, 34 Barb. 95; S. C. 21 How. Pr. 286; S.
C. 12 Abb. 359.

As where the summons misstates the day of filing the com-
plaint, this isan error which may be amended or disregarded.
Jacquerson v. Van Erben, 2 Abb. 315.

And a mistake in the name of the defendant, in an affidavit
of service, is an irregularity which must be taken advantage
of within the time allowed for a motion to vacate the judg-
ment on account of such defect.

Moulton v. De McCarty, 6 Robt. 470.

So where the summons, as published, is not, in some imma-
terial point, an exact copy of the original, the irregularity
may be amended or disregarded.

Van Wyck v. Hardy, 39 How. Pr. 392.

The fact, that the admission of service does not state the
place of service, does not render the judgment void ; such
defect is a mere irregularity which may be amended on mo-
tion.

Maples v. Mackey, 15 Hun, 533.
White v. Bogart, 73 N. Y. 256.

Where the proof of the genuineness of the signatures of the
defendants to the admission was by the affidavit of the
plaintiff, it was held, that such proof was not made incompetent
by the Code ; but, if the proof was defective, it was simply
an irregularity, not affecting the validity of the judgment.

White v. Bogart, 73 N. Y. 256.

Remedy for Defective Service.

The proper remedy for a defective or irregular personal
service of a summons is by a motion to set it aside.

Nones v. Hope Mut. L. Ins. Co., 8 Barb. 541; 8. C. 5
How. Pr. 96; 8S. C. 3 Code R. 161.
Emerson v. A., etc., R. R. Co., 138 Hun, 150.
8
114 SERVICE OF SUMMONS.

And the same is true whevher the service be made upon
an individual or a foreign corporation.
Bates v. N. O., etc., R. R. Co., 18 How. Pr. 516.

A defendant cannot raise an objection to the improper ser-
vice of a summons by demurrer or answer.

Nones v. Hope Mut. L. Ins. Co., 8 Barb. 541; S. C. 5
How. Pr. 96.

Strictly speaking, the motion to set aside the summons is
proper, only when the defect is in the summons itself and
not in the service.

Metcalf v. Clark, 41 Barb. 43.

Where the objection is technical, and the regularity of the
service only is affected, the motion should be made at the
earliest opportunity. And, as a general rule, all motions for
relief on the ground of irregularity must be made before

judgment.
Myers v. Overton, 2 Abb. 344; 8. C. 4 E. D. Smith, 428.

Hunter v. Lester, 10 Abb. 260; 8. C. 18 How. Pr. 347.

Appearance by answer or demurrer waives the objection.

0. & L. C. R. R. Co. o. V. & C. R. R. Co., 63 N. Y. 176,

On a motion to set aside a judgment taken by default, for
irregularity, because the complaint was not sworn to, and
because there was no legal evidence of the service of the
summons, which was made upon the managing agent of the
defendants, there being no affidavit annexed verifying the
signature of the agent who gave the admission of service, it
was held, that these were irregularities which should have
been taken advantage of promptly,and at the first opportu-
nity. Under the facts and circumstances presented, the
plaintiff was allowed to amend nune pro tune, by filing his
affidavit of verification of the complaint, and was also allowed
to annex an affidavit verifying the signature of the agent of
the defendants.

Jones v. U. §. Slate Co., 16 How. Pr. 129,
REMEDY FOR DEFECTIVE SERVICE. 115

Where, however, the defect is one of substance, and de-
prives the court of jurisdiction, no delay on the part of the
defendant to object to such defect will deprive him of his
right to have the service of the summons, and all subsequent
proceedings set aside as void.

Titus v. Relyea, 8 Abb. 177; S. C. 16 How. Pr. 371.

Williams vy. Van Valkenburgh, 16 How. Pr. 144.
Hallett v. Righters, 138 How. Pr. 43.

It is a well-settled principle, that, if the court has failed to
acquire jurisdiction by the service of process, it cannot gain
it by any delay, on the part of the defendant, in raising an
objection to the invalidity of the proceedings. Laches can-
not confer jurisdiction, and, although it may waive an irregu-
larity, it cannot impart vitality to a void judgment.

Titus v. Relyea, 16 How. Pr. 371; S. C. 8 Abb. 177.
Burk v. Ayers, 19 Hun, 24.

Williams v. Van Valkenburgh, 16 How. Pr. 144.
Bulkley v. Bulkley, 6 Abb. 307.

Phelps v. Phelps, 6 Civ. Pro. 117.

If the defects are such as to deprive the court of jurisdic-
tion, the motion may be made after judgment, although the
action was for divorce, and a decree had been obtained.

Bulkley v. Bulkley, 6 Abb. 307.

A motion to set aside service of the summons and com-
plaint, on the ground of want of jurisdiction, should be granted

when the facts are undisputed, and the law certain.

Crowley v. R. E. 8S. Co., 2 Civ. Pro. 174; S.C. 10 Daly,
409; S. C. 15 Wk. Dig. 64.

But, where a question of fact arises, the question of juris-
diction cannot be tried by affidavit upon a motion. If the
want of jurisdiction appears on the face of the complaint, it
should be taken advantage of by demurrer; and if it does not
So appear, it should be set up in the answer.

Johnson v. A. T. Co., 14 Hun, 89.
Crowley v. R. E. 8. Co., 2 Civ. Pro. 174.

It seems, that, though a certificate by the sheriff of A., of
116 SERVICE OF SUMMONS.

the service of process in the county of B., is no proof of ser-
vice, the judgment and sale may be sustained against the
purchaser’s motion to be discharged, by allowing an affidavit
of service to be filed nune pro tune.

Farmers L. & T. Co. v. Dickson, 9 Abb. 61; 8S. C. 17
How. Pr. 477.
See Cooper v. Shaver, 41 Barb. 157.

The question, as to the regularity of the papers for the
service of a summons by publication, may be brought up
on a motion to vacate the judgment entered upon such service,
and the order for the service.

Howe M. Co. v. Pettibone, 12 Hun, 657.

An order of the court subsequent to judgment, in such a
case, for the filing of the complaint, nune pro tune, as to the
day the summons was first published, will not give vitality
to the judgment. The power of amendment does not extend
to such defects; besides the defect in the publication of the
summons would still remain, and that alone would be fatal
to the judgment.

Kendall v. Washburn, 14 How. Pr. 380.

An omission of proof of the sending by mail of acopy of the
summons and complains, on service by publication, may be
supplied by an order directing the filing of such proof nune
pro tune made after the decree.

Herbert v. Smith, 6 Lans. 498.

SERVICE OF COMPLAINT,
§ 419.

Service of Copy Complaint or Notice with Summons.

A copy of the complaint may be served with the summons.
If a copy of the complaint is not served with the summons,
the plaintiff cannot take judgment by default without appli-
cation to the court, unless either the defendant appears, or
SERVICE OF COMPLAINT. 117

by a notice is served with the summons, stating the sum of
money for which judgment will be taken, and the case is
one embraced in the next section.

See Code of Procedure, § 129.

Where a copy of the complaint, in an action, was served
upon the defendant, two days after the summons was served,
and before he had appeared, it was held, that the plaintiff
acquired no rights thereunder ; that a motion by the defendant
to set aside the service was proper, and should be granted,
notwithstanding he had returned the copy complaint to the
plaintiff.

Sweet v. Sanderson Bros,, 6 Civ. Pro. 69.

The complaint should be served with the summons, if served
at all.

Sweet v. Sanderson Bros., 6 Civ. Pro. 69.

§ 479.
Copy Complaint, when to be Served.

If a copy of the complaint is not delivered to a
defendant, at the time of the delivery of a copy of
the summons to him, either within or without the
State, his attorney may, at any time within twenty
days, after the service of the summons is complete,
serve upon the plaintiff’s attorney a written demand
of a copy of the complaint, which must be served
within twenty days thereafter. The demand may
be incorporated into the notice of appearance. But
where the same attorney appears for two or more
defendants, only one copy of the complaint need be
served upon him; and if, after service of a copy of
the complaint upon him, as attorney for a defend-
118 SERVICE OF SUMMONS.

ant, he appears for another defendant, the last de-
fendant must answer the complaint within twenty
days after he appears in the action.

This is a substitute for section 1380 of the Code of Procedure.

The last clause beginning, “and if, after service of a copy
of the complaint,” is new.

The only case in which the defendant can demand a copy
of the complaint is where there has been a personal service of
the summons, but no copy of the complaint has been served
with it ; and where a defendant has been served by publica-
tion, and a copy of the summons and complaint has been
mailed to him, he is not entitled, as of course, to demand a
copy of the complaint to be served upon him.

Mackay v. Laidlaw, 13 How. Pr. 129.

The plaintiff may serve his complaint at the same time that
the summons is served ; and it is very common practice to
attach the complaint to the summons; but if the complaint is
not served with the summons, the plaintiff may, at any time
after the service of the summons, voluntarily serve the com-
plaint.

Van Pelt v. Boyer, 7 How. Pr. 325.
Contra, Sweet v. Sanderson Bros., 6 Civ. Pro. 69.

If the defendant does not demand a copy of the complaint
within twenty days after service of the summons, the plaintiff
is not obliged to serve a copy.

See Engs v. Overing, 2 Code R. 79.
Bennett v. Delicker, 3 Code R. 117.

In such a case, however, the court, on motion of the defend-
ant, may order a copy to be served.
Bennett v. Delicker, 3 Code R. 117.
Engs v. Overing, 2 Code R. 79.

If, within twenty days after the service of the summons,
the defendant's attorney demands a copy of the complaint, it
FAILURE TO SERVE COMPLAINT. 119

must be served within twenty days after such demand, but,
if served after that time, it isa nullity.
Baker v. Curtiss, 7 How. Pr. 478.

Unless there has been an order extending the time for such
service.
Baker v. Curtiss, 7 How. Pr. 478.

The plaintiff may, upon an affidavit showing grounds there-
for, obtain an order extending the time for serving a copy of
the complaint.

Littlefield v. Murin, 4 How. Pr. 306 ; S. C. 2 Code R. 128.

But such order cannot be granted ex parte, after the time
for serving the complaint has expired.
Stephens v. Moore, 4 Sandf. 674.

Where an application was made by the indemnitors of a
sheriff, that they should be substituted as defendants in his
place, in an action for the conversion of goods levied upon by
him, under an execution and the attorneys of these have
already appeared in the action for defendants, other than the
sheriff, it was held, that it was donbtful whether the provi-
sions of this section, relieving the plaintiff from a further
service of the complaint on the indemnitors, was applicable.

Farjeon v. Grant, 6 N. Y. State R. 809.

A notice of appearance which requires all papers in the
action to be served on the defendant’s attorney, and specify-
ing a place for the service, is a sufficient demand of service
of a copy of the complaint.

Walsh v. Kursheedt, 8 Abb. 418.
Ferris v. Soley, 23 How. Pr. 422.

§ 480.

Consequence of Failure to Serve Complaint.

If the plaintiff's attorney fails to serve of the com-
plaint as proscribed in the last section, the defend-
ant may apply to the court for a dismissal of the
ecmplaint.
120 SERVICE OF NOTICE OF APPEARANCE, ETC.,

This is a new provision. The Code of Procedure did not
expressly provide any penalty for an omission to serve a copy
of the complaint when demanded.

Where the action is commenced by a service of a summons
without the complaint, and the plaintiff neglects to serve a
copy of the complaint within twenty days after demand, it is
proper for defendant to move to dismiss the complaint. If the
motion is granted, the action is discontinued, or dismissed.

Baker v. Curtiss, 7 How. Pr. 478.

After notice of such a motion is served and a copy of the
complaint is subsequently served on the defendant, the
latter is not bound to return it immediately, or be deemed
to have waived the right tomake his motion.

Baker v. Curtiss, 7 How. Pr. 478.

One of several defendants who has not been served with a
summons and complaint cannot voluntarily appear and move
to dismiss the complaint, where his rights are not affected.

Tracy v. Reynolds, 7 How. Pr. 327.

The plaintiff may, in such cases, deliver a complaint against
only the one upon whom the process is served, and omit to
make service upon the others ; and those served with a com-
plaint have no right to ask the court to dismiss the complaint
in favor of the other defendants.

Travis v. Tobias, 7 How. Pr. 90.

SERVICE OF NOTICE OF APPEARANCH, ETC.
§ 421.

Appearance of Defendant.

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
NOTICE OF APPEARANCE. 121

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
417 of this act, concerning the office address of the
plaintiff’s attorney.

This section provides for the appearance of the defendant,
and this must be made either by service of a notice of appear-
ance, or service of a copy of demurrer or answer.

Douglass v. Haberstro, 58 How. Pr. 276; 8. C. 8 Abb.
N. ©. 230. -

Van Dyck v. McQuade, 18 Hun, 376.

Valentine v. M. S. Depot, 36 Hun, 201; S. C. 22 W’k Dig.
71.

Ger. Am. Bk. v. Champlin, 11 Civ. Pro. 452

And, until this is done, the defendant’s attorney has no
general standing in the cause either to bind or protect his
client.

Couch v. Mulhane, 63 How. Pr. 79.
Van Dyck v. McQuade, 18 Hun, 376.

The service of a notice of motion is not such an appear-
ance.

Couch v. Mulhane, 63 How. Pr. 79.

Douglass v. Haberstro, 58 How. Pr. 276; S. C. 8 Abb.
N. C. 280.

Noble v. Crandall, 49 Hun, 474; S. C.,18 N. ¥. State R.
24,

Valentine v. M. S. Depot, 22 W’k Dig. 71.

Contra, Kelsey v. Davis, 15 How. Pr. 92,

Phelps v. Phelps, 6 Civ. Pro. 117.

Martine v. Lowenstein, 6 Hun, 225. |

Where a defendant not having been served with a copy of
the summons and complaint, moved without serving any
formal notice of appearance to have the complaint made more
definite and certain, and the plaintiff thereupon procured an
ex parte order discontinuing the action as to the defendant
122 SERVICE OF NOTICE OF APPEARANCE, ETC.,

it was held, that this was proper; that the service of the
notice of motion was not equivalent to an appearance.

Valentine v. M. S. Depot, 36 Hun, 201; 8S. C. 22 W’k Dig.
TW.

But it has been held, that the service of an order extending
the time to answer, together with the papers upon which the
order was granted, was a sufficient notice of appearance.

Krause v. Averill, 4 Civ. Pro. 410; 8. C. 66 How. Pr. 97.
Kneeland v. Martin, 2 Law Bull. 56.

Ayres v. Western R. R. Co., 48 Barb. 182.

Quin v. Tilton, 2 Duer, 648.

Where defendant moves to have the summons dismissed
on the ground that it has been improperly served, and for
that purpose makes and files an affidavit stating the facts
relied on to show irregularity, and his attorney obtains and
‘serves an order to show cause, why the summons should not
be dismissed, and ordering the proceedings to be stayed, and
extending defendant’s time to answer for twenty days,—these
facts do not constitute such an appearance in the cause by
defendant, as to amount to a waiver of an irregular service
of the summons.

Brett v. Brown, 13 Abb. N. S. 295.

If the answer be returned to the messenger by whom it is
sent, stating that the time to answer has expired, and the
defendant’s attorney subsequently leaves it at the office of the
plaintiffs attorney, the latter is not bound to return it a
second time, but may take judgment.

gacobs v. Marshall, 6 Duer, 689.

To render the notice of appearance served by the defend-
ant’s attorneys on his behalf sufficient, they must have the
authority to serve such notice of appearance; and an order
may be made permitting defendant to withdraw the notice of

appearance.
Hunt v. Brennan, 1 Hun, 2138.
SERVICE OF ANSWER OR DEMURRER. 123

SERVICE OF ANSWER OR DEMURRER.
§ 422.

Answer or Demurrer, How Served.

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
plaintiffs attorney, before the expiration of the
tjme within which the summons requires him to an-
swer. Ifa 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 com-
plaint, as prescribed in section four hundred and
seventy-nine of this act.

See Code of Procedure, §§ 130 and 143.

A defendant served by substituted service, in pursuance of
sections 485 and 486 of the Code of Civil Procedure, must
answer within twenty days from the time of such service.

Orr v. McEwen, 16 Hun, 625.

Where the service is made by publication, or service is
made out of the state, the answer must be served within
twenty days from the time publication is complete, which is
upon the day of the last publication pursuant to the order.

Code of Civil Procedure, § 441.

Tomlinson v. Van Vetchen, 6 How. Pr. 199; 8. C. 1 Code
N. 8. 3817.

Abrahams v. Mitchell, 8 Abb. 123.

Richardson v. Bates, 23 How. Pr. 516.

Brod v. Heymann, 3 Abb. N. S. 396.
124 SERVICE OF ANSWER OR DEMURRER.

Mar. Nat. B’k v. Pac. Nat. B’k, 11 Abb. N. C. 104; 8. C.
89 N. Y. 397; S. C. 15 W’k Dig. 24.
Brooklyn T. Co. v. Bulmer, 49 N. Y. 84.

A defendant must answer the complaint within the twenty
days prescribed by the statutes. He has not a right to
answer after the expiration of the twenty days, and before
judgment is actually taken.

Mandeville v. Winne, 5 How. Pr. 461.
McGown v. Leavenworth, 2 E. D. Smith, 24.

An order staying the plaintiff's proceedings does not oper-
ate to extend the time to answer.

McGown v. Leavenworth, 2 E. D. Smith, 24.
Romaine v. Cornwell, 11 Abb. N. S. 430.
Sniffin v. Peck, 6 Civ. Pro. 188.

Neither does an order for a bill of particulars, with a stay
of plaintiff’s proceedings.

Platt v. Townsend, 3 Abb. 9.

Nor does an order staying proceedings until the hearing of
the decision of an appeal.

Petrie v. Fitzgerald, 2 Abb. N.S. 854.

An infant defendant is entitled to twenty days after the
appointment of a guardian ad litem to demand a copy of the
complaint, and his time to answer does not begin to run until
a guardian ad litem is appointed.

Kastner v. Durant, 1 Law Bull. 11.

Where no complaint has been served with the summons, or
filed with the clerk, the service of an answer upon plaintiff's
attorney is irregular, and a fraudulent practice upon the rules
and practice of the court.

Philips v. Prescott, 9 How. Pr. 430.
SERVICE OF PLEADING. 125

A defendant who is arrested before answering, but more
than twenty days after the service of the summons and com-
plaint upon him, has twenty days after he has been arrested
to answer.

Code of Civil Procedure, § 566.
Clady v. Wood, 66 How. Pr. 1.

An answer may be served by mail, where the parties serv-
ing and served reside in the same place.

Whitney v. Haggerty, 7 N. Y. State R. 766.

Where the summons specifies the place where the answer
is required to be served on the plaintiff’s attorney, the defend-
ant is not bound to serve his answer in any other place. And,
if the attorney’s office is closed, and he does not reside in that
place, an endeavor to serve at the office within the time al-
lowed to answer, followed by an actual service, within a rea-
sonable time afterwards, when the office is open, will be
regarded as a sufficient service.

Lord v. Vandenburgh, 15 How. Pr. 363.

§ 520.

When Pleading to be Served.

A pleading must be subscribed by the attorney for
the party. A copy of each pleading, subsequent to
the complaint, must be served on the attorney for
the adverse party within twenty days after service
of a copy of the preceding pleading.

The second clause is new in form, rendered necessary by
dropping from former sections the provisions prescribing the
time of service.

A party has a right to presume that the copy served is a
126 SERVICE OF PLEADING.

correct copy of the original, and may rely upon such. being
the case.
Littlejohn v. Munn, 3 Paige, 280.

The issues to be raised are only those raised by the copy,.
and, if there is a variance, the copy served controls.

Trowbridge v. Didier, 4 Duer, 448.

Where a party refuses to receive a pleading served within
the time it may be served, the party serving may move for an
order, requiring the pleading to be received, instead of delay-
ing until judgment is entered, and then move to open it.

Pattison v. O'Connor, 60 How. Pr. 141.

Where an answer was served containing a counter-claim,
and the cause was then noticed and cross-noticed for trial, and.
plaintiff, subsequently discovering the counter-claim, coun-
termanded the notice of trial, and then served his reply, which
service was within twenty days from the service of the answer,.
it was held, on defendant’s motion to strike out the reply,
that the service was irregular.

Reilly v. Byrne, 1 Civ. Pro. 201.

A service of a pleading after the expiration of the time,.
and before judgment is entered, is irregular.

Dudley v. Hubbard, 2 Code R. 70.

Mandeville v. Winne, 5 How. Pr. 461; S. C. 1 Code.
N.S. 161.

Baker v. Curtis, 7 How. Pr. 478.

O’Brien v. Catlins, 1 Code N. 8. 273.

Where a joint answer, served after the time of one to an-
swer had expired, was returned, a judgment entered after the
time of the other to answer had expired was held regular.

Jacques v. Greenwood, 1 Abb. 230.

The pleading must be served on the attorney for the ad-
SERVICE OF ANSWER ON CO-DEFENDANT. 127

verse party, and need not be served on a person who is an agent,
merely.

Weir v. Slocum, 3 How. Pr. 397.

As to the place and manner of service, see

Code of Civil Procedure, §§ 796, 797.

§ 521.
When Defendant to Serve Copy Answer on Co-defendant..

Where the judgment may determine the ultimate
rights of two or more defendants, as between them-
selves, a defendant who requires such a determina-
tion must demand it in his answer, and must, at least.
twenty days before the trial, serve a copy of his an-
swer upon the attorney for each of the defendants.
to be affected by the determination, and personally,
or as the court or judge may direct, upon defend.
ants, so to be affected, who have not duly appeared
therein by attorney. The controversy between the
defendants shall not delay a judgment to which the
plaintiff is entitled, unless the court otherwise
directs.

This section of the code is new, not being contained in the.
Code of Procedure.

Kenny v. Apgar, 93 N. Y. 547.

It was amended by the laws of 1884, chap. 400, substituting
the word “twenty” for “ten,” and by inserting the words
“and personally, or as the court or judge may direct, upon
defendants so to be affected, who have not duly appeared
therein by attorney.”
128 SERVICE OF ANSWER ON CO-DEFENDANT.

This section confers no new power upon the courts acting
in equity, but is simply a regulation of practice.

Alb’y S. Inst. v. Burdick, 87 N. Y. 46.

Nor is it limited to actions of a purely equitable character.

Derham v. Lee, 47 Super. Ct. 174; S. C. 60 How. Pr. 334;
8. C. 11 W’k Dig. 449; aff'd 87 N. Y. 599; S.C.
14 W’k Dig. 75.

Service need be made under this section only when the con-
troversy between the defendants arises out of, or the cause of
action is connected with, the subject-matter of the action. It
does not permit a distinct and separate cause of action to be
brought into the case.

Lansing v. Hadsall, 26 Hun, 619.
Rafferty v. Williams, 34 Hun, 544.

The section does not apply when the relief demanded in
the answer is substantially the same as that asked in the com-
plaint.

Edwards v. Downs, 18 W’k Dig. 57.

Nor, where one of several defendants asks in his answers
that the plaintiff's lien be declared subsequent to his, need
the answer be served on the other defendants.

Bullymore v. Seward, 15 W’k Dig. 283.

An adjudication between co-defendants must be founded
upon and connected with the subject-matter in litigation be-
tween plaintiff and one or more of the defendants, and where *
the court decides that plaintiff is not the real party in inter-
est, an adjudication will not be made as to the rights of de-
fendants between themselves.

Dusenbury v. Fisher, 47 Super. Ct. 482.

Judgment creditors have no right to take judgment against
SERVICE OF AMENDED PLEADING. 129

their co-defendant without having served upon him a copy of
their answer, as required by this section.

Edwards v. Woodruff, 90 N. Y. 396.

A failure to serve cross-answers on the part of the defend-
ants will be disregarded upon an appeal, if no objection was
raised upon the trial of the controversy.

Syracuse Sav. Bk. v. Porter, 36 Hun. 168.

§ 543.
Service of Amended Pleading.

Where a pleading is amended, as prescribed in the
last section, a copy thereof must be served upon the
attorney for the adverse party. A failure to demur
to or answer the amended pleading within twenty
days thereafter has the same effect, as a like failure
to demur to or answer the original pleading.

Code of Procedure, part of §§ 172 and 146.

When the pleadings are amended a copy must be served on
the other party, in order that he may know what his oppo-
nent’s allegations are.

Gilmore v. Barnett, 20 Hun, 516.

If a party refuse to receive an amended pleading, and pro-
ceed as though it had not been served, he does so at his
peril, if he fail to establish that the pleading was scrved in
bad faith and for purposes of delay.

Vanderbilt v. Bleeker, 4 Abb. 289.

Where a defendant has appeared by attorney, an amended
complaint is to be served on the attorney, and not on the de-
fendant personally.

Mercier v. ner Abb. 325,
130 SERVICE OF NOTICES, ETC., IN ACTION,

SERVICE OF NOTICES OR OTHER PAPERS IN
ACTION.

§ 796.

Personal Service of Papers.

A notice or other paper in an action may be
served on a party or an attorney either by deliver-
ing it to him personally, or in the manner prescribed
in the next section. All papers so served, or re-
quired to be filed in an action, shall be plainly and
legibly written or printed in black ink upon durable
paper of good material, and, if imprinted by type-
writer, such paper shall be of linen quality, equal
in weight to sixteen pounds to the double cap ream,
of seventeen by twenty-eight inches in size, and
service or filing of papers, printed or written upon
such paper with such ink shall be deemed a com-
phance with the terms of this section. The tran-
scribed minutes of a stenographer taken in any civil
or criminal action, or in any hearing or special
proceeding, civil or criminal, shall be written or
type-written on paper of the size hereinafter speci-
fied ; and all cases, briefs, points, or other papers
required or used on an appeal from any judgment, de-
termination or order of any court or board, shall be
printed (when required to be printed by the rules
of any court) on paper of a uniform size, as follows :
The paper must be ten and one-half inches by eight
inches, and bound on the edge of the greatest length.

The first sentence is an amendment of section 408, and.
part of section 409 of the Code of Procedure.
SERVICE OF NOTICES, ETC., IN ACTION. 131

It was amended by the laws of 1888, chap. 496, by adding
thereto the balance of the section.

The notices referred to in this section have reference only
to notices required by the provisions of the Code.

Kerr v.. McGuire, 28 N. Y. 453.

- The word, “ attorney,” in the action, means the attorney-
at-law of the party, and not an attorney in fact.

Wier v. Slocum, 3 How. Pr. 398.

Nor does it include an agent or clerk.

Wier v. Slocum, 3 How. Pr. 398.
See Lansing v. Gulick, 26 How. Pr. 250.
Crittenden ». Adams, Code R. N.S. 2.

Where two attorneys are in partnership, the business being
done in the name of one, service of papers may‘be on either,
whether he be in his office, or abroad on business.

Lansing v. McKillup, 7 Cow. 46.

But if the attorney of record dies, service made upon his
surviving partner, or upon his executor or administrator is
not good.

Bacon v. Hart, Black (U. 8S.) 38.

Where an agreement has been made to substitute an at-
torney, but the order for substitution has not been entered,
‘service on the attorney is not good.

Wood v. Holmes, 19 W’k Dig. 2.

' Where, after the entry of judgment, a new attorney is em-
ployed to issue execution, and enforce the judgment, and
he issues execution, this is a complete substitution, so
that subsequent service of papers, for a motion to vacate
the judgment with a stay of proceedings meanwhile, is prop-
erly made upon such new. attorney.
132 SERVICE OF PAPERS IN ACTION.

Ward v. Sands, 10 Abb. N. C. 60.

Motion papers to set aside a judgment of divorce granted
by default, are properly served on the attorney for the
plaintiff, although made nearly two years after the entry of
judgment, and after the attorneys for the plaintiff had settled
with their client, and they themselves had dissolved partner-
ship.

Miller v. Miller, 37 How. Pr.

And it was held, that the service of motion papers by the
defendant’s attorney to set aside an attachment, and an
order of publication, made upon the plaintiff’s attorney four
years after the entry of judgment in the action, was held
sufficient.

Drury v. Russell, 27 How. Pr. 30.

An attorney is a proper person to be served with notice,
when the judgment or other proceeding in which he has
participated, is sought to be set aside.

In re McCunn, 5 Redf. 5.

There is no statute, or rule of law, against the service of
papers, in a proceeding by a party thereto, and the practice
has been universal in favor of it.

Wetmore v. Parker, 52 N. Y. 456.

Mode of Service.

Service of a judge’s order, in a case where it is not sought
to bring a party into contempt, for non-compliance there-
with, is properly made by delivery of a copy to, or for, the
person upon whom the service is to be made. The original
need not be exhibited.

Gross v. Clark, 1 Civ. Pro. 7.

Where the person who makes the service immediately re-
WHEN SERVICE OF PAPERS NOT PERSONAL. 1338

ceives the paper back again, instead of leaving it with the
person served, this is not a good service.

Earll ». Chapman, 3 E. D. Smith, 216.

If the attorney refuses to receive a copy of a paper, service
thereof will be sufficient, if the person making the same, in
the presence and office of such attorney, places a copy on the
table in front of the attorney and leaves it there.

Nathan v. Sutphen, 9 Pac. R. 110.

Time of Service on Attorney.

Personal service on an attorney, or service on an attorney
during his absence, by leaving the paper with his partner, or
clerk, or person having charge of the office, may be made at
any hour of the day or night.

Cooper v. Carr, 8 Johns. 360.

§ 797.

Service of Papers, Where Service not Personal.

Where the service is not personal, it may be made
as follows :

1. Upon a party or an attorney, through the post-
office, by depositing the paper, properly inclosed in
a post-paid wrapper, in the post-office of the party
or the attorney serving it, directed to the person to
be served, at the address, within the State, desig-
nated by him for that purpose, upon the preceding
papers in the action; or, where he has not made
such a designation, at his place of residence, or the
place where he keeps an office, according to the best
information which can conveniently be obtained
concerning the same.

2. Upon an attorney, during his absence from his
134 SERVICE OF PAPERS BY MAIL,

office, by leaving the paper with his partner or clerk
therein, or with a person having charge thereof.

3. Upon an attorney, if there is no person in

charge of his office, and the service is made between
six o’clock in the morning and nine o’clock in the
evening, either by leaving it in a conspicuous place
‘in his office, or by depositing it, inclosed in a sealed
wrapper, directed to him, in his office letter-box ; or,
if the office is not open, so as to admit of leaving the
paper therein, and there is no office letter-box, by
leaving it at his residence, within the State, with a
person of suitable age and discretion.
4, Upon a party, by leaving the paper at his resi-
dence within the State, between six o’clock in the
morning and nine o’clock in the evening, with a
person of suitable age and discretion.

This section is a substitute for sections 409, 410 and 411 of
the Code of Procedure.

The first subdivision is an extension to all cases of the pro-
vision allowing service by mail in particular cases.

“In the second subdivision, the words “ partner or” have
been inserted.

.The third subdivision has been changed by the addition of
the clause allowing the paper to be left in a letter-box where
no person is found in charge of the office.

The words, “ within the State,” have been inserted in the
first and third subdivisions, and in the fourth subdivision by
the laws of 1879, chap. 526.

SUBDIVISION ONE.
SERVICE BY MAIL.
1. How to be Made.

It is a recognized principle that the directions imposed as
to the mode of service by mail must be strictly performed.
DEPOSIT IN POST-OFFICE, 135

Anonymous, 1 Hill, 217.

Pollard v. Wegener, 13 Wis. 569.
Boyland v. Boyland, 18 Ill. 551.
Gaffney v. Bigelow, 48 How. Pr. 476.

‘

The courts will carefully guard against any abuse that might
result in unfairness.

Smith v. Smith, 4 Greene (Iowa), 266.

Giving notice by mail is depositing a letter containing the
requisite information properly addressed in the post-office.

Vasser v. Camp, 14 Parb. 341.

2. Who to be Served.

The provisions as to service by mail apply only to service
on the parties to the action, or to their attorneys; they do not
apply to service on the clerk.

Crittenden v. Adams, 5 How. Pr. 310.
Morris v. Morange, 26 How. Pr. 247; S.C. 17 Abb. 86.
Aff’d, 31 How. Pr. 639.

Where there are several defendants to be served, a separate
paper addressed to each should be sent, even though they be
partners having the same address.

Likens v. McCormick, 39 Wis. 313.

3. Deposit in what Post-Office.

A service by mail must be made by depositing the papers
in the post-office, at the residence of the attorney making the
service, addressed to the person on whom it is served, at his
place of residence, and the postage paid.

Schenck v. McKie, 4 How. Pr. 245; 8. C. 3 Code R. 24.
Gaffney v. Bigelow, 48 How. Pr. 476.

A service by mail is irregular if not deposited in the post-
office of attorney serving it.
136 SERVICE OF PAPERS BY MAIL.

Gray v. Smith, 10 N. Y. State R. 866.

An attorney or a party having fixed his place of residence
for the purposes of the action, service by mail can only be
made by him, at the place thus indicated.

Hurd v. Davis, 18 How. Pr. 57.

A paper deposited by an agent of the attorney making the
service, in a post-office in a different town from that in which
the attorneys reside, is not a good service, except from the
time it is actually received.

Schenck v. McKie, 4 How. Pr. 246; S. C. 3 Code R. 24.
Corning v. Gilman, 1 Barb. Ch. 649,
Peebles v. Rogers, 5 How. Pr. 210.

If the papers are received in time, the service is good. The
attorney making the service in such case, and generally
where the service is not strictly regular, takes the risk of
their being so received.

Peebles v. Rogers, 5 How. Pr. 210.

Hurd v. Davis, 138 How. Pr. 57.

Gaffney v. Bigelow, 48 How. Pr. 475.

See Marcele v. Saltzman, 66 How. Pr. 205,

6. When Service Deemed Sufficient.

But where a personal service is required, a service by mail
is not sufficient, even though the paper is received by the
party served within the time specified for such service.

Marcele v. Saltzman, 66 How. Pr. 205.

Where the paper is thus deposited in the proper post-office,
correctly addressed, and the postage paid, the service is deemed
complete, and the party to whom it is addressed takes the
risk of the failure or miscarriage of the mail.

Schenck v. McKie, 4 How. Pr. 246; S. C. 8 Code R. 24.
Lawler v. S. Mut. Ins. Co., 2 Code R. 114.
Crittenden v. Adams, 5 How. Pr. 310.
WHEN SERVICE DEEMED SUFFICIENT. 137

Radcliffe vy. Van Benthuysen, 3 How. Pr. 67.
Brown v. Briggs, 1 How. Pr. 152.

Gibson v. Murdock, 1 Code R. 108.

Rowell v. McCormick, 1 Code N. S. 78.
Van Horn v. Montgomery, 5 How. Pr. 238.
Jacobs v. Hooper, 1 Barb. 71.

Vassar v. Camp, 14 Barb. 341.

Elliott v. Kennedy, 26 How. Pr. 422.
Noble v. Trotter, 4 How. Pr. 322.

Miller v. Shall, 67 Barb. 446.

Price v. McGoldrick, 2 Abb. N. C. 75.

If the papers are mailed on the last day for service, they
must be deposited in time to go by mail that day, or by the
first mail on the next day.

Green v. Warren, 14 Hun, 434.

The service of a paper by mail is good, although deposited
in the post-office on the last day for service after the mail has
closed, if otherwise made in conformity to the statutes and
the rules of the court.

Noble v. Trotter, 4 How. Pr. 322.

Elliott v. Kennedy, 26 How. Pr. 422.
Johnson v. Anthony, 1 How. Pr. 173.
Contra Mahar v. Comstock, 1 How. Pr. 87.

On the question as to the time of service of paper by mail,
the court is not bound by the appearance of the postmark on
the envelope, especially where it was mailed at a small, un-
commercial post-office.

Yates v. Guthrie, 26 N. Y. State R. 593.

An order extending the time to answer, obtained and mailed
on the last day of the time to answer is well served, and suffi-
cient to prevent the plaintiff from regularly entering judg-
ment, as upon failure to answer.

Schuhardt v. Roth, 10 Abb. 208.

Where a notice of filing an undertaking was served by
mail, it was held, that a deposit of a notice of exceptions to
‘138 _ SERVICE OF PAPERS BY MAIL.

the sureties, in the post-office on the tenth day after the mail-
ing of the first notice was sufficient, ten days being the pre-
scribed time, even without the allowance of double time by
reason of the first notice having been served by mail.

Lyddy v. L. I. City, 102 N. Y. 726; 8. C. 2 N.Y. State
R. 519.

5. How Paper Enclosed and Directed.

It is not enough that the papers are directed to the at-
torney ; they must be enclosed in a wrapper.

Anonymous, 1 Hill, 217.
Where a notice occupies half a sheet, the other half may be
used as a wrapper.
Chautauqua Co. Bk. v. Risley, 6 Hill, 875.
‘If the notice has been folded and the address written
thereon, and so mailed, the statute is literally and substan-

tially complied with. If enclosed in an envelope, the envelope
should be sealed.

" Rathbone v. Clarke, 9 Abb. 66, n.
Where the required wrapper was omitted, so that the

papers, though actually received, were received in a soiled and
damaged condition, it was held no service.

Anonymous, 1 Hill, 217.

An affidavit of service of papers by mail must state that
the papers were enclosed in a wrapper.

Anonymous, 25 Wend. 677.
Anonymous, 1 Hill, 217.

Where papers are served by mail, no part thereof must be
written on the envelope.

Birdsall v. Taylor, 1 How. Pr. 89.
PREPAYMENT OF POSTAGE. 139

Where thé direction to “return if not called for,” etc., was
indorsed on the envelope, the service by mail is not vitiated
thereby, unless it appears that, by reason of such indorsement,
the person to be served failed to receive the paper. '

Gaffney v. Bigelow, 2 Abb. N. C. 811; Rev’g, 48 How.
Pr, 475,

6. Prepayment of Postage.

The entire postage legally chargeable on the papers mailed
must be paid.
Anonymous, 1 Hill, 217.

Bross v. Nicholson, 1 How. Pr. 158.
Woods v. Hartshorn, 2 How. Pr. 71.

4

©

And a mistake of the postmaster, in not aslelng sufficient
postage, will not excuse.

Anonymous, 1 Hill, 217.

An attorney is not bound to take a letter from the post-
office charged with postage, though he has reason to believe
it contains law papers, and the effect of his omission is a eee
fault of his adversary. ~ okey Cpe

Anonymous, 19 Wend. 87.

‘But where a pleading is sent by mail, and is taken from the
post-office. by the party and examined, and postage . thereon
found to be unpaid, he cannot then refuse to receive it héecause
the postage is not paid.

‘ Clark v. Melratland, 10 Wend. 634. ~~~

Where the plaintiff's attorney received an answer by mail,
which he returned ‘because the postage was not paid, and en-
tered judgment as upon default, it was held, that all other
proceedings being regular, the judgment’ was ‘not void: for
want of jurisdiction, but mérely irregular. Pea Ere

Van Benthuysen ». Lyle, 8 How. Pr. $12.
140 SERVICE OF PAPERS ON ATTORNEY'S CLERK,

7. Place of Residence.

The expression, “at his place of residence,” is to be deemed
to relate to the post-office, and not to any particular locality
in a town or city, as a street and number.

Oohout v. Rhinelander, 10 How. Pr. 461.
Rowell v. McCormick, 5 How. Pr. 337.

If an attorney having his place of business at A, designates
his residence as B, he can only be served by mailing, by ad-
dressing him at the latter place.

Hurd v. Davis, 13 How. Pr. 57.
And the attorney has a right to decide where his place
of residence is, and may designate it by his endorsement on

the papers, and notice of mail must be directed to the post-
office at that place.

Rowell v. McCormick, 5 How. Pr. 3388.
Hurd v. Davis, 18 How. Pr. 57.

A pleading may be served by mail, where the parties serv-
ing and served reside in the same place.

Whitney v. Haggerty, 7 N. Y. State R. 766.

In foreclosure of a mortgage by advertisement, copies of
the notice of sale may be served on the parties by mail,
though they reside in the same place.

Stanton v. Kline, 11 N. Y. 196.
See O’Connell v. Sutherland, 16 Abb. 460 n.

SUBDIVISION TWO.

At common law, service on the clerk of the attorney, at
the office of the attorney, is good.

Quincy v. Foot, 1 Barb. Ch. 496.
Power v. Kent, 1 Cow. 211.
SERVICE OF PAPERS BY LEAVING AT ATTORNEY'S OFFICE. 141

Service on a clerk of the attorney must be made at the time
the clerk is in the office of the attorney.

Paddock v. Beebe, 2 Johns. Cas. 117.

Where the clerk is not in the office, though in the house
where he kept his office, the service is good.

Anonymous, 1 Cai. 73.

Where the attorney, at the time service of a paper was
made, did not appear to be in the room which was entered
by the person serving, and he accordingly delivered it to the
individual found in charge of the office, such service was
held regular, and not rendered ineffectual by reason of the
circumstance that the attorney himself was in an adjacent
room at the time; and that if it had, the fact that the copy
order soon thereafter came to the hands of the attorney, cor-
rected any possible irregularity.

Gross v. Clark, 1 Civ. Pro, 17.

A copy of a judgment, with notice of the entry thereof in-
dorsed on it, was served on the defendant’s attorney, by
leaving the same with a person who occupied an office which
had a common entrance with said attorney’s, said attorney's
office being open at the time, but he being absent, it was
held, that the person who received it was in charge of said
office, and that such service was sufficient.

Crook v. Crook, 12 N. Y. State R. 663.

SUBDIVISION THREE.

Service of papers after office hours, by unlocking the office
of the person served, and, no person being therein, leaving
the papers in the office, is irregular and unlawful.

Campbell v. Spencer, 1 How. Pr. 199.
Livingston v. McIntyre, 1 How. Pr. 253.
Vail v. Lane, 4 Hun, 633.
142. SERVICE OF PAPERS.

It seems, that where leave is granted by a proper p Bean re
unlock the door, and make service of papers, the service is.
good.

Livingston v. McIntyre, 1 How. Pr. 253.

r

But a person procuring the office to be unlocked by a per-
son having no authority so to do, and leaving the paper
therein, in a conspicuous place, does not effect a good service.

Vail v. Lane, 4 Hun, 653; S. C. 67 Barb. 281.

Service at the office, by leaving the paper in a conspicuous
place in the office, can only be made when the office is found
unlocked.

Haight v. Moore, 36 Super. Ct. 294.

Service of an answer, by leaving it in the office of plaint-
iff’s attorney, on the last day to answer, after the office is
closed, and all have left for the day, is insufficient, and it may
be returned, and judgment for want of an answer taken.

Asinari v. Volkening, 2 Abb. N. C. 454.

A service of a paper, by throwing it through a fan-light, or
pushing it under a door, the door being locked, is an insuffi-
cient service.

Corning v. Pray, 2 Wend. 626.
Haight v. Moore, 36 Super. Ct. 294.
Anonymous, 18 Wend. 578.

Where a notice of appeal was thrown through a transom
over a door, into an attorney’s office, this is no service upon
the attorney, unless in that manner the paper actually went
into the hands of said attorney.

Claflin v. DuBois, 15 N. Y. State R. 963.
Service of a paper on an attorney, by affixing it on the

door of the office, no one being at the office, and the door
locked, is not a good service.
LEAVING PAPERS AT ATTORNEY’S OFFICE. 143

Oshiel v. DeGraw, 6 Cow. 63.

Service of a paper through a slit provided in the locked
office door of the adverse attorney, into an inside letter re-
ceiver, is sufficient, though the paper so left is not inclosed in
a closed wrapper.

Duval v. Busch, 13 N. Y. State R. 752; S.C. 21 Abb. N.
: @ C. 214,

' The term, “ office letter box,” has reference to the attorney’s
letter box, if any, in the building outside of his office. uo

Duval v. Busch, 13 N. Y. State R.752; S.C. 21 Abb. N.
C, 214.

There can be no service at the attorney’s residence, if his
office with a letter receiver inside the door, is so open as to
admit leaving a paper therein, and then it must be left in’
some conspicuous spot within such office.

Duval v. Busch, 13 N. Y. State R. 752; S. C. 21 Abb. N.
C. 214,

If it is impossible to comply with the requirements of the
statute in serving the paper, and the party makes the best
service possible under the circumstances, and follows it up.
with regular service and notice of facts, it will be sufficient.

Falconer v. Ucoppell, 2 Code R. 71.
Lord v. Vandenburgh, 15 How. Pr. 363.

Where an attorney has fixed the place of service, a party.
who has, within proper hours, attempted to make service
there, is not bound to send to the attorney’s real residence in
another town.

Lord v. Vandenburgh, 15 How. Pr. 365.
The irregularity of the service of a paper. is waived if

received and acted upon by the party upon whom it was,
served.
144 SERVICE OF PAPERS.

Georgia L. Co. v. Strong, 3 How. Pr, 246.
Wright v. Forbes, 1 How. Pr. 240.

And it should be returned within a reasonable time. This
is never limited to less than the same day.

McGown v. Leavenworth, 2 E. D. Smith, 25.

Where a party returns a paper as irregular, he must state
his objections to it explicitly. A mere statement that the
service is irregular and not in compliance with certain sec-
tions of the Code, is not enough.

Chemung Co. Bk. v. Judson, 10 How. Pr. 133.

Where a copy of an order has been served at the office of
an attorney, he will not be justified in returning the same
for the reason that the notice was served upon a person in
the office of the attorney, not in his employ, when he himself
was in the office and easily accessible.

Gross v. Clark, 1 Civ. Pro. 17.

If the notice is served upon a wrong person, so that it is
no service, a return of the paper is not necessary.

Purvis v. Gray, 39 How. Pr. 1.

If a paper has been returned to the party who served it,
and he reserves the paper with a notice that the service first
made is insisted upon, this does not make it necessary to
return the paper again.

Jacobs v. Marshall, 6 Duer, 689.

Nor does the acceptance of the paper on such re-service by
the attorney’s clerk, in ignorance of the fact that his principal
had rejected it because the original came too late, waive the

defect.
O’Brien v. Catlin, 1 Code N. S. 273.
DOUBLE TIME WHEN SERVED THROUGH POST-OFFICE, 145

§ 798.

Double Time when Served through the Post-Office.

Where it is prescribed in this act, or in the gen-
eral rules of practice, that a notice must be given,
or a paper must be served, within a specified time,
before an act is to be done; or that the adverse
party has a specified time, after notice or service,
within which to do an act; if service is made
through the post-office, the time so required or
allowed is double the time specified; except that
service of notice of trial may be made, through the
post-office, not less than sixteen days before the day
of trial, including the day of service.

This is an amendment of section 412 of the Code of Pro-
cedure, which was amended so as to remove doubts as to its
meaning.

This section applies to a notice limiting the time in which

to appeal.
Dorlan v. Lewis, 7 How. Pr. 132.

Where an answer is served by mail, the plaintiff has forty
days within which to amend his complaint or to reply.

Cusson v. Whalen, 5 How. Pr. 305.
Washburn v. Herrick, 4 How. Pr. 15; 8. C. 2 Code R. 2.

And the defendant has forty days within which to amend

his answer.
Washburn v. Herrick, 4 How. Pr. 15; 8. C. 2 Code R. 2.
Evans v. Lichtenstein, 9 Abb. N. 8. 141.

It was held, under the Code of Procedure, that where an
answer served by mail does not admit of a reply, and is not,
in fact, replied or demurred to, defendant’s time to amend is

limited to twenty days.
10
146 SERVICE OF PAPERS ON ATTORNEY,

Toomey v. Andrews, 48 How. Pr. 332.

Where a written demand that the place of trial be changed
was served by mail, by defendant, plaintiff has ten days there-
after in which to comply, and the defendant has twenty days
thereafter to make a motion to change the place of trial.

Lesser v. Williams, 23 N. Y. State R. 136.

As to when the time begins to run see

Ante, page 1386.

Where the copy of an order, mentioned in section 779 of
the Code of Civil Procedure, is served by mail, the proceed-
ings are not stayed for non-payment of costs, until the expira-
tion of twenty days from the date of the service of the order.

Marks v. Wilson, 13 Abb. N. C. 374.
Wellman v. Frost, 88 Hun, 389.

An attorney has twenty days in which to mail a notice of
his exceptions to the sureties of an undertaking, when the
notice of the filing of the undertaking was served upon him

by mail.
Lyddy v. L. I. City, 102 N. Y. 726; S. C. 2 N.Y. State
R. 519.

§ 799.

When Service to be Made on Attorney ; When not
Required.

Where a party has appeared, a notice or other
paper required to be served in an action, must be
served upon his attorney. If a defendant has not
appeared, service of a notice or other paper, in the
ordinary proceedings in the action, need not be
made upon him, unless he is actually confined in
jail for want of bail.
SERVICE OF PAPERS ON ATTORNEY, 147

This section is based upon sections 417 and 414 of the
Code of Procedure, which are consolidated.

An order to enforce civil remedies is properly served upon
an attorney, and not upon the party.

Mahon »v. Mahon, 5 Civ. Pro. 61; S. C. 19 W’k Dig, 347.
Pitt v. Davison, 37 N. Y. 285.
Walker v. Walker, 20 Hun, 401.

After a party has appeared and pleaded in an action, he is
entitled to notice of all motions, and has a right to be heard
before his pleading can be stricken out.

Rice v. Ehele, 55 N. Y. 518.
When an attorney is retained merely to confess judgment,

notice of a motion to vacate a satisfaction must be served
upon him and not upon the party.

Wardell v. Eden, 2 Johns. Cas. 121.
Notice of appeal should be served on the attorney of record
in the court below, not on the party.

Tripp v. De Bow, 5 How. Pr. 114.
Flynn v. Bailey, 50 Barb. 78.

Where such service was made upon the party only who
had not appeared so as to give the court jurisdiction, it was
held, that the appeal was a nullity.

Tripp v. De Bow, 5 How. Pr. 114.
If a party has appeared in person, the papers in the action
may be served upon him, in the mode proper for serving
either a party or an attorney, unless he is an attorney, in

which case he is entitled to service as on an attorney if that
mode be more favorable.

Bridgeport Bk. v. Sherwood, 16 Johns. 43.

The order for the examination of a party to an action
148 SERVICE OF PAPERS ON ATTORNEY.

before trial, is one in the action, and it should be served upon
the attorney, where the defendant has appeared by attorney.

Tebo v. Baker, 16 Hun, 184.
Plummer v. Belden, 8 Hun, 458.

An order for the inspection of books, as also an order to
show cause why an answer should not be stricken out, be-
cause of a failure to comply with such order for inspection, is
properly served upon the attorney.

Rossner v. N. Y. M. A., 20 Hun, 182.

And it has been held, that the service of an order for dis-
covery, upon the defendant only, and who had an attorney,
was insufficient, and will be set aside on motion.

Schmidt v. Selinger, 1 Law Bull. 61.

_f the attorney for the plaintiff has become a non-resident
of the State, service of papers on him out of the State would
be irregular.

Diefendorf v. House, 9 How. Pr. 248.
See Code of Civil Procedure, § 60, post, 150.

A defendant who has appeared, but not answered, is not
entitled to notice of an application for an order to arrest him.
It is not an ordinary proceeding in the action.

Becker v. Hager, 8 How. Pr. 68.
Nor are provisional remedies.

Schundt v. Calm, 3 Alb. L. J. 889.
Becker v. Hager, 8 How. Pr. 68.

And the service of an injunction obtained after a defendant
has appeared by attorney in the action, on the attorney
instead of on the defendant, is a defective service.

Becker v. Hager, 8 How. Pr. 68.

Where the statute requires service on a person, it means
SERVICE UPON NON-RESIDENT PARTY. 149

personal service, unless some other service is specified or

indicated.
Rathbone v. Acker, 18 Barb. 393.
McDermott v. Board of Police, 5 Abb, 422.

And will be regarded as a good service.

People v. Hulburt, 5 How. Pr. 446.

Where an order to show cause provides, that service of a
copy on the plaintiff's attorney two days before the return
day thereof shall be deemed a sufficient service, such service
requires personal service on the attorney.

Marcele v. Saltzman, 66 How. Pr. 205.

The death of a party precludes effective service upon his

attorney.
Adams v. Nellis, 59 How. Pr. 385.
Beach v. Gregory, 2 Abb. 203.
Putnam v. Van Buren, 7 How. Pr. 31.

Persons confined in prison may be served as prescribed in
sections 131 and 132 of the Code of Civil Procedure.

See ante, page 19.

§ 800.
How Service Made upon a Non-Resident Party.

Where a party to an action, who has appeared in
person, resides without the State, or his residence
cannot, with reasonable diligence, be ascertained,
and he has not designated an address, within the
State, upon the preceding papers, service of a paper
upon him may be made by serving it on the clerk.

Section 415 of the Code of Procedure remodeled.
Service can be made on the clerk, only where the party to
150 SERVICE ON NON-RESIDENT ATTORNEYS.

'
an action has appeared in person, and either is a non-resident,
or his residence cannot be found.

Grant v. Dean, 4 Law Bull. 13.

§ 60.

Service on Non-Resident Attorneys.

A person regularly admitted to practice as attor-
ney and counselor, in the courts of record of the
State, whose office for the transaction of law busi-
ness is within the State, may practice as such attor-
ney or counselor, although he resides in an adjoin-
ing state. But service of a paper, which might be
made upon him, at his residence, if he was a resi-
dent of the State, may be made upon him, by depos-
iting the paper in a post-office in the city or town
where his office is located, properly inclosed in a
postpaid wrapper, directed to him at his office. A
service thus made is equivalent to personal service

upon him.
Laws of 1866, chap. 175, § 1.

§ 65.

Death or Disability of Attorney; Proceedings thereupon.

If an attorney dies, is removed or suspended, or
otherwise becomes disabled to act, at any time before
judgment in an action, no further proceeding shall be
taken in an action, against the party for whom he
appeared, until thirty days after notice to appoint
another attorney has been given to that party, either
personally, or in such other manner as the court
directs.
THROUGH BRANCH POST-OFFICE IN NEW YORK city. 151

2 B.S. 287, § 67.

Where an attorney dies, actual notice or warning to ap-
point another is necessary.

Hildreth v. Harvey, 3 Johns. Cas. 800.
Given v. Driggs, 3 Cai. 150.

But this rule does not apply where the attorney dias after
judgment.

Hall v. Putnam, 23 W’k Dig. 513.

Where notice to appoint another attorney is served upon a
party whose attorney has died, all proceedings are stayed for
thirty days, and a motion to dismiss an appeal for a failure to
appoint an attorney, made within that time, is premature.

Hickox v. Weaver, 15 Hun, 375.

If the new attorney is not appointed in thirty days after
notice, papers in the action must be served on the party him-

self.

Jewell v. Schouten, 1 N. Y. 241.
See Hoffman v. Rowley, 13 Abb. 399.

§ 801.
Service Through Branch Post-office in New York City.

In the city of New York, where a paper is served,
or a return is made, through the post-office, the de-
posit of a package in a branch post-office has the
same effect, as a deposit in the general or principal
post-office of that city.

This is a new provision.
A deposit of papers in a postal box attached to a lamp-post
152 SERVICE OF NOTICE OF TRIAL.

may, by a liberal construction of the statute, be regarded as
equivalent to depositing the same in the post-office.

Greenwich Bank v. De Groet, 7 Hun, 210.

§ 802.
This Article Not Applicable to Service of Summons, ete.

This article does not apply to the service of a sum-
mons, or other process ; or of a paper to bring a
party into contempt ; or to a case where the mode
of service is specially prescribed by law.

Based upon sections 418 and 408 of the Code of Pro-
cedure.

§ 977.
Service of Notice of Trial.

At any time after the joinder of issue, and at least
fourteen days before the commencement of the term,
either party may serve a notice of trial. . . . In the
city and county of New York, and in the county of
Kings, where a party has served a notice of trial and
filed a note of issue for a term, at which the cause
is not tried, it is not necessary for him to serve
a new notice of trial, or file a new note of issue for
a succeeding term; and the action must remain
on the calendar until it is disposed of.

This is part of section 256 of the Code of Procedure, as
amended by the Laws of 1876, chap. 481, § 9.
After the action is at issue, it may be noticed for trial by

either party.
Reynolds v. Davis, 2 Abb. 168, 8. C. 5 Duer, 611.
SERVICE OF NOTICE OF TRIAL. 153

The term, “ either party,” must be construed as intending
that the notice, which shall give the right to bring on the
trial of the action, must be given by one or the other of the
parties to all the issues triable at the same time.

Ward v. Dewey, 12 How. Pr. 195.

If there are several defendants, who are each entitled to no-
tice of trial, all must have notice before the plaintiff can move
on the trial.

Ward v. Dewey, 12 How. Pr. 195.

On the other hand, all the defendants must have given no-
tice of trial to the plaintiff, before any of them can move on
the trial.

Ward v. Dewey, 12 How. Pr. 195.
Morris v. Crawford, 16 Abb. 124.

Where several defendants appear and answer separately by
different attorneys, either may notice it for trial after issue
joined as to all.

Gurnee v. Hoxie, 29 Barb. 547.

Service of notice of trial, hefore issue is joined upon the
pleadings then existing, will be premature.

Akin v. A. N. R. R. Co., 14 How. Pr. 337.

And the same is true if served before all the defendants,
who are entitled to appear, have answered.

Ward v. Dewey, 12 How. Pr. 195.

Where an issue has been joined in an action, and, before the
time for a party to amend has expired, the opposite party no-
tices his cause for trial, he does so at his own peril. As long
as the right to amend exists, his notice of trial is liable to be
defeated and rendered unavailing by the service of the
amended pleading.
154 SERVICE OF NOTICE OF TRIAL.

Washburn v. Herrick, 4 How. Pr. 18.
Plumb v. Whippe, 7 How. Pr. 411.
Ostrander v. Conkey, 20 Hun, 421,

And it has been held, thata plaintiff, by noticing for trial
an issue of law raised by the service of a demurrer to the
complaint, does not waive his right to serve an amended com-
plaint within the time allowed by law.

Clifton v. Brown, 27 Hun, 231.

Tf service is made by mail, it must be made not less than
‘sixteen days before the day of trial, including the day of
‘Service.

Code of Civil Procedure, § 798.
See ante, pages 145, 146.

Such service is good, although the last day falls on Sun-
‘day before the Monday for which the cause is noticed.

Central Bk. of W. Co. v. Alden, 41 How. Pr. 102.

As to whether the first day of the court is to be included
in the computation of time for service of notice of trial, see

Dayton v. McIntyre, 5 How. Pr. 117.

In computing the time for service of a notice for trial, the
day of service is to be excluded.
Code of Civil Procedure, § 788.
Dayton v. McIntyre, 5 How. Pr. 117.

PROOF OF SERVICE OF PAPER, ETC.

Due proof of the service of a notice must be made before
an order can be taken upon a default in appearing.

Rule 37, Supreme Court.

Proof of service may be made by affidavit, return or ad-
mission. The requisites of these three modes of proof, as
PROOF OF SERVICE. 155

far as applicable to the service of a summons, have been
already stated.

Ante, pages 43-54, 94, 94 a.

The same proof may be made with reference to the service
of other papers in the action, upon a party or his attorney.

The time and place of service should be stated. Saying that
the service was made in a village named is sufficiently defi-
nite.

Wilson v. Call, 49 Iowa, 463.

The manner of service should be fully stated.

In order to bind a defendant by the service of a paper
upon another person there must be some relation between
that person and the attorney, as, that he was the attorney’s
clerk, or the person in charge of the office, and an affidavit of
Service must show what that relation is.

Rathbone v. Blackford, 1 Cai. 343.

Adams v. Town, 3 Cal. 247.
Municipality v. Christ Ch., 3 La. Ann. 453.

The affidavit of service on an attorney’s clerk, must state
that the service was made when the clerk was in the at-
‘torney’s office.

Paddock v. Beebe, 2 Johns. Cas. 117.
Jackson v. Giles, 3 Cai. 88.

When service of papers are made by leaving them in a con-
spicuous place in the office, the affidavit must state that there
was no person in the office at the time.

Campbell v. Spencer, 1 How. Pr. 97.
Jackson v. Gardner, 2 Cai. 95.

Where the service is by mail, the affidavit must state that
the papers were inclosed in a wrapper.

Anonymous, 25 Wend. 677.
Anonymous, 1 Hill 217.
156 SERVICE OF SUBP@NA.

The manner of inclosing and mailing should be stated, and
the address.

Chalmers v. Wright, 5 Robt. 713.

It has been held, to allege generally, in the words of the
statute, that the paper was “properly folded and directed,”
was not sufficient.

Chalmers v. Wright, 5 Robt. 713.

The residence of the attorney or party served by mail
must be stated in the affidavit of service.

Brown v. Cook, 2 How. Pr. 40.
Chalmers v. Wright, 5 Robt. 7138.

Where plaintiff's attorney was presented with the original,
and a copy of an offer of judgment, and of the attorney’s
affidavit of authority, and kept the copy, and returned the
original, with a written admission thereon of “due service of
a copy,” the service was held sufficient.

Noonan v. Smith, 12 Abb. N. C. 337.

Where the person making the service has died, or left the
State, and has failed to make an affiadvit of service, the court
will act on secondary evidence presented by affidavit, where
it is such as would be satisfactory if presented on a trial at
common law.

Jackson v. Howd, 3 Cai. 131.

§ 852.

Mode of Serving Subpena Issued out of a Court.

A subpeena, issued out of a court, to compel the
attendance of a witness, and, where the subpena so
requires, to compel him to bring with him a book
or paper, must be served as follows :
SERVICE OF SUBPCNA. 157

1. The original subpcena must be exhibited to the
witness.

2. A copy of the subpeena, or a ticket containing
its substance, must be delivered to him.

3. The fees, allowed by law, for travelling to, and
returning from, the place where he is required to
attend, and for one day’s attendance, must be paid
or tendered to him.

2 Revised Statutes, 400, section 42, amended by not re-
quiring the seal of the court, and by inserting a clause as to
subpcenas duces tecum.

Any person may serve a subpeena, but no fees are allowed
for making the service.

Wheeler v. Lozee, 12 How. Pr. 446.

A party to an action may serve a subpcena upon an adverse
party, and if, upon going to his house to serve it, he finds the
door of the house open, he may enter, and having effected an
entrance, may use such force as is necessary to enable him to
serve the subpcena.

Hager v. Danforth, 20 Barb. 16.

The subpeena should be served long enough before the time
of the trial, that the witness will be able to reach the court,
by the ordinary route and public conveyance, without travel-
ling on Sunday ; but if served after the day named therein, as
the time of trial, and it is accepted, with notice that sufficient
time will be allowed to reach the place of trial, the witness
is bound to attend.

Davies v. Lovell, 7 How. Pr. Cas. 178.

Witness’ fees must be paid, or the witness is not obliged to
attend, and cannot be punished for non-attendance.
158 SERVICE OF SUBPG@NA.

Muscott v. Runge, 27 How. Pr. 85.
Courteney v. Baker, 3 Den. 27.
Hurd v. Swan, 4 Den. 75.

A witness is entitled to his fees for his attendance on
Sunday, as well as the other days of the week.

Muscott v. Runge, 27 How. Pr. 8.

Witnesses who attend the trial, by request in two causes,
are entitled to the full allowance of fees in each case, though
the parties may be the same.

Vence v. Speir, 18 How. Pr. 168.
Hicks v. Brennan, 10 Abb. 304.

The witness must have been personally served by subpcena
or order, or have received compensation for attendance, in
pursuance of its terms, before he can be made liable to the
penalty provided by the statute ; itis not enough, that the
order was served upon his attorney.

Tebo v. Baker, 77 N. Y. 35.

The action for the penalty will not lie, unless the witness
has been paid his fees from day to day, including Sundays,
before he has lawfully departed from the court.

Muscott v. Runge, 27 How. Pr. 85.
Hurd v. Swan, 4 Den. 75.

But if the witness has expressly waived the payment of
fees, it seems, that an action for a penalty can be maintained.

Muscott v. Runge, 27 How. Pr. 85.
Hurd v. Swan, 4 Den. 75.

The proof of the service of the subpcena is made by the
affidavit of the person making the service, showing the time,
place and manner of service.
SERVICE OF ORDER FOR TAKING DEPOSITION. 159

§ 875.
Service of Order for Taking Deposition.

A copy of the order, and of the affidavit upon
which it was granted, must be served upon the at-
torney for each party to the action, in like manner,
as a paper in the action ; or, if a party has not.
appeared in the action, they must be served upon
him, as directed by the order. If no action is pend-
ing, they must be personally served upon each of
the persons, named therein as expected adverse
parties.

This section was not in the Code of Procedure. It was
amended by the laws of 1879, by striking out the words,
“who is required thereby to appear,” after the words,
“attorney for each party to the action.”

The order for the examination of an adverse party must be.
personally served upon the party to be examined.

Riddle v. Cram, 3 Abb. N. C. 117, note.

Loop v. Gould, 17 Hun, 585.

Tebo v. Baker, 77 N. Y. 33; aff’g, 16 Hun, 182.
Mayor v. Noll, 56 How. Pr. 214.

McCauley v. Palmer, 9 Civ. Pr. 390.

A copy of the order must also be served upon the attorney
for each party, as a notice, in addition to the personal service
upon the party who is to be examined.

Tebo v. Baker, 16 Hun, 183.

Where the order has been served upon the attorney only, the
party cannot be punished for a disobedience thereof, because
he is not required to obey it.

Tebo v. Baker, 16 Hun, 183.
McCauley v. Palmer, 9 Civ. Pro. 390.

The service of an order upon a party who has appeared as.
160 SERVICE OF ORDER FOR TAKING DEPOSITION.

attorney in person is equivalent to service upon his attorney.

McGregor v. Ball, 7 W’k Dig. 312.

It has been held, on motion to vacate the order, that, where
the party sought to be examined has appeared in the aetion,
the service upon his attorney only is sufficient; but not if he
has not appeared.

Webster v. Stockwell, 3 Abb. N. C. 116.
Thompson », Sickles, 3 Abb. N. C. 121.

If a party has not appeared in the action, the papers must be
served on him as directed by the order.

Pake v. Proal, 54 How. Pr. 93.
Watson v. Bedlin, Dai. Reg. of 1878.

If the order is for the examination of one of several de-
fendants, and all the defendants have appeared, the papers
should, also, be served upon the attorney who has appeared for
all of them.

N. Y., L. E., ete., Co. v. Carhart, 36 Hun, 288.

An order for the examination of a witness, before trial, un-
der section 871 of the Code of Civil Procedure, should be
served upon the attorney for the adverse party as well as
upon the witness.

Cowen v. Ferguson, 18 Abb. N. C. 241.

Where the order for examination was served only upon the
witness, it will be vacated on motion, even after an order pun-
ishing the witness for contempt in not appearing has been
made.

Cowen v. Ferguson, 18 Abb. N. C. 241.

A subpena need not be served with the order.

Pake v. Proal, 54 How. Pr. 93.
SERVICE OF ORDER OF ARREST, ETC. 161

Witness fees must be paid upon service of the order, whether
the person to be examined is a party or not.

Gawthrop v. Leary, 9 W’k Dig. 176.
McGregor v. Ball, 7 W’k Dig. 312.

The court will not punish the person to whom the order is
directed for a disobedience of it, unless the fees are paid upon
the service of the order.

Muscott v. Runge, 27 How. Pr. 85.

A service of an order of examination, made by a private
person, by wrongfully entering the house of the person served,
is illegal, and will be set aside.

Mason v. Libbey, 1 Abb. N. C. 354,

§ 562.

Service of Order of Arrest and Other Papers.

The order of arrest, or, where it was granted by
the court, a certified copy thereof, subscribed by the
plaintiff’s attorney ; and, in either case, the papers
upon which the order was granted, with the under-
taking, if any ; must be delivered to the sheriff, who,
upon arresting the defendant, must deliver to him a
copy thereof. The papers upon which the order was
granted, with the undertaking, if any, must be filed,
with the order of arrest, or a certified copy thereof,
at the time prescribed for filing the same, in section
five hundred and ninety of this act.

This is substantially the same as section 184 of the Code of
Procedure, which was amended by the addition of the last
sentence.

The provision of the old Code read as follows :
11
162 SERVICE OF ORDER OF ARREST, ETC.

“ The affidavit, and order of arrest shall be delivered to the
sheriff, who, npon arresting the defendant, shall deliver to
him a copy thereof.”

The words, “ with the undertaking, if any,” were inserted
twice by the Laws of 1879.

The requirement as to service of the order of arrest, etc.,
upon the defendant is merely directory. ;

Keeler v. Belts, 3 Code R. 183.

Barker v. Cook, 25 How. Pr. 190; 8. C. 16 Abb. 83; S. C.
40 Barb. 254.

Courter v. McNamara, 9 How. Pr. 255.

Mather v. Hannaur, 55 How. Pr. 1.

If no copy or paper purporting to be a copy of the affidavit
is served by the sheriff upon arresting the defendant, it is
an irregularity only, and will not entitle the defendant to his

discharge.

Barker v. Cook, 25 How. Pr. 190; S. C. 16 Abb. 83; S. C.
40 Barb. 254.
Keeler v. Belts, 3 Code R. 183.

And such is the case, when no copy of the undertaking is

served.
Mather v. Hannaur, 55 How. Pr. 1.

Also, of a failure to serve a copy of the order of arrest.
Courter v. McNamara, 9 How. Pr. 255.

But it was held, that, unless a copy of the order of arrest
should be served on the defendant’s attorney, and the costs of
the motion paid by the plaintiff within ten days, the proceed-
ings should be vacated.

Keeler v. Belts, 3 Code R. 183.

Where the papers upon which an order of arrest is granted
are perfect, the fact that the copies which are served upon
SERVICE OF INJUNCTION ORDER, ETC. 163

the defendant are defective is not a ground for setting aside

the order.
Bank of Havana v. Moore, 5 Hun, 624.

It is not necessary to the validity of an order of arrest, that
the copy affidavit served by the sheriff should contain copies
of the signature to it, and of the officer to the jurat; nor to
show, that the original affidavit was thus signed.

Barker v. Cook, 25 How. Pr. 190; 8. C. 16 Abb. 83; 8. C.
40 Barb. 254.

The order of arrest must be subscribed by the attorney.

Thompson v. Friedberg, 54 How. Pr. 519.

§ 610.

Service of Injunction Order, and Papers upon which
Order Granted.

The injunction order must briefly recite the
grounds for the injunction. Where it is granted
by the court, it must be served by delivering a
certified copy thereof, where it is granted by a
judge, it must be served by showing the original
order, and delivering a copy thereof. Service of the
order, upon a corporation, may be made, as pre-
seribed in this act, for making personal service of a
summons upon a corporation. Copies of the papers,
upon which the order was granted, must be delivered
with a copy of the order.

This section is new, with the exception of the last sen-
tence, which has been taken from section 220, of the Code of

Civil Procedure.
A copy of the papers upon which the injunction is granted,
164 SERVICE OF INJUNCTION ORDER, ETC.

must always be served with the order, otherwise, the service
of the injunction will be set aside as irregular.

Penfield v. White, 8 How. Pr. 87.
And, where the complaint and affidavit of verification were

the only papers on which the order was granted, it was, held,
that a service of these, with the order, was sutticient.

Leffingwell v. Chave, 19 How. Pr. 54; 8. C. 10 Abb. 473.

But an omission to serve the affidavits with the order will
not justify disobedience to the order.

Davis v. Mayor, 1 Duer, 451.

The affidavits, and papers upon which the injunction, is
granted should be legible, else, the order will be of no avail;
illegibility, alone, will be sufficient to dissolve the injunction.

Johnson v. Casey, 28 How. Pr. 492; 8. C. 3 Robt. 710.

A service of an injunction upon the defendant, prior to the
service of the summons, is irregular. But the injunction
order may be signed by the justice, preparatory to such ser-
vice, and be delivered to be served with the summons.

Leffingwell v. Chave, 19 How. Pr. 54; S. C. 10 Abb. 478.

In order to form a basis for proceedings to punish for con-
tempt, it is indispensable, that the service should be in accord-
ance with the provisions of the Code.

- Coddington v. Webb, 4 Sandf. 639.

The injunction must be served upon the defendant person-
ally, and not upon his attorney.

Johnson v, Casey, 28 How. Pr. 492,
Becker v. Hager, 8 How. Fr. 68..

If service of the injunction is made upon an attorney, in-
stead of on the party, such service is irregul

Becker v. Hager, 8 How. Pr. 425.
SERVICE OF INJUNCTION ORDER, ETC. 165

For service upon a person who is not a party tc the action,
does not bind him.

Edmondston v. McLoud, 19 Barb. 361.

But an injunction against a corporation is binding upon
every officer, or member, who has knowledge of it, although
not directed to, or served upon them, individually.

Davis v. Mayor, 1 Duer, 451.
Rorke v. Russell, 2 Lans. 242.

Tt is not sufficient, that a copy only, of the order, should be
served, with a notice, that it was such a copy. The original
injunction order must be shown, to the defendant.

Coddington v. Webb, 4 Sandf. 639.
Watson v. Fuller, 9 How. Pr. 425.

A failure to show the party the original order, when serving
him with a copy, is a mere irregularity, which is waived by
his appearing without objection, before the referee, and sub-
mitting to an examination.

Newell v. Cutler, 19 Hun, 74.

And is sufficient to impose upon him the duty of obeying
it, when he was present in court, when the order was made,
and has a knowledge of the injunction, and of its contents.

Livingston v. Swift, 23 How. Pr. 1..

A party may be punished for a willful violation of an order,
of which he has actual knowledge, or, for the intentional
prevention of the service thereof.

People v. Compton, 1 Duer, 512.
Livingston v. Swift, 28 How. Pr. 1.
Wellesley v. Mornington, 11 Beav. 181.

When there is a conflict of evidence, upon the fact, whether
the original injunction order was shown, to the defendant, at
the time of the service of a copy of it, and there being a prob-
166 NOTICE OF APPLICATION FOR MONEY, ETC.

ability, that the defendant was mistaken as to that fact, and
he having full notice of all the proceedings, the service will
be held sufficient.

Ewing v. Johnson, 34 How. Pr. 202.

Where an injunction is granted by the court, and not by a
judge out of court, it is properly served by delivering a certi-
fied copy.

Mayor v. Conover, 5 Abb. 244.

See,-Smith v. Smith, 23 How. Pr. 1384; S. C. 14 Abb. 180,
aff?'d, 14 Abb. 468.

In such case, no exhibition of the original order is requisite.

Mayor v. Conover, 5 Abb. 244,

As to the mode of service of the order upon a corpora-
tion, domestic or foreign, see, ante pages 27-43.

§ 1564.

Service of Notice of Application for Money paid into
Court, in Partition.

2. Service of the notice of the application upon
each owner of an incumbrance, within the State,
must be personal, or by leaving it at the owner’s
residence, with some person of suitable age and
discretion, at least fourteen days previous to the
application. Service, without the State, if personal,
must be made at least twenty days previous to the
application. If the owner of the incumbrance resides
without the State, and the place of his abode cannot
be ascertained, with reasonable diligence, notice may
be served upon him by publishing it in the news-
paper printed at Albany, in which legal notices are
SERVICE OF STATE WRITS. 167

required to be published, once in each week, for the
four weeks immediately preceding the application.

2B. S. 324, 325, §§ 45 and 46.

§ 1895.

Service of Summons in Action by a Private Person for a
Penalty or Forfeiture.

The summons in an action, brought as prescribed
in the last section, can be served only by an
officer authorized by law to collect an execution,
issued out of the same court. The summons, when
issued, cannot be countermanded by the plaintiff
before the service thereof ; and, immediately after it
has been served, the officer who served it must file
it, with his certificate of service, in the office of the
clerk, or deliver it, with a like certificate, to the
magistrate by whom it was issued, as the case
requires,

2 R. S. 480, part of section 6.

It seems, that proof of the service of the summons, in an
action to recover a penalty or forfeiture, is not proof, that
the summons served had indorsed upon it a general reference
to the statute under which the action was brought, as re-
quired by section 1897, of the Code of Civil Procedure,

notwithstanding the original summons had such indorsement
upon it.

People v. Walters, 7 Civ. Pro. 406.
§ 1999.
Service of State Writs.

Except where special provision is otherwise made
168 SERVICE OF WRIT OF HABEAS CORPUS.

in this act, a State writ must be personally served,
in like manner as a summons, issued out of the
supreme court; and each provision of this act,
relating to the personal service of such a summons
upon a defendant, applies to the service of a State
writ.

This section is new.

The State writs are styled, collectively, as follows :

The writ of habeas corpus to bring up a person to testify,
or to answer; the writ of habeas corpus, and the writ of
certiorari, to inquire into the cause of detention ; the writ of
mandamus ; the writ of prohibition ; the writ of assessment
of damages, which is substituted for the writ heretofore
known as the writ of ad quod damnum ; and the writ of cer-
tiorari to review the determination of an inferior tribunal,
which may be called the writ of review.

Code of Civil Procedure, § 1991.

The service of writs, as provided by this section, must con-
form with section 426, of the Code of Civil Procedure.

See, ante pages 4 to 24,

§ 2000.

Service of Writ of Habeas Corpus. Fees and Undertaking
when Required.

A writ of habeas corpus can be served only by an
elector of the State. Where the prisoner is in cus-
tody of a sheriff, coroner, constable, or marshal, the
service is not complete, unless the person serving
the writ tenders to the officer the fees allowed by
law for bringing up the prisoner, and delivers to him
an undertaking, with at least one surety, in a sum
SERVICE OF WRIT OF HABEAS CORPUS. 169

specified therein, to the effect, that the surety will
pay the charges of carrying back the prisoner, if he
shall be remanded ; and that the prisoner will not
escape by the way, either in going to, remaining at,
or returning from the place to which he is to be
taken. The sumso specified must be, at least, twice
the sum for which the prisoner is detained, if he is
detained for a specific sum of money ; if not, it must
be one thousand dollars.

2B. 8. 574, § 78, amended.

§ 2001.

Fees to Persons not Officers. Service of Writ of Habeas
Corpus.

A court or a judge, allowing a writ of habeas cor-
pus, directed to any person other than a sheriff,
coroner, constable, or marshal, may, in its or his
discretion, require the applicant, in order to render
the service thereof complete, to pay the charges of
bringing up the prisoner. In that case, the amount
of the charges, not to exceed the fees allowed by law
to a sheriff, for a similar service, must be specified
in the certificate allowing the writ.

2 RB. 8. 575, § 84.

§ 2002.
Last Two Sections Qualified.

The last two sections are not applicable to a case,
where the writ is allowed upon the application of the
attorney-general or a district attorney.

2 RB. S. 574, § 79, amended.
170 SERVICE OF ORDER FOR DISCHARGE OF PRISONER.
§ 20038.

Mode of Service} of Writ of Habeas Corpus When Person
Conceals Himself, ete.

A writ of habeas corpus, or of certiorari, issued as
prescribed in article second or article third of this
title, may be served by delivering it to the person to
whom it is directed. If he cannot be found, with
due diligence, it may be served by leaving it at the
jail, or other place in which the prisoner is confined,
with any under officer, or other person of proper age,
having charge, for the time, of the prisoner, and pay-
ing or tendering to him the fees or charges for bring-
ing up the prisoner. If the person, upon whom the
writ ought to be served, keeps himself concealed, or
refuses admittance to the person attempting to serve
it, it may be served by affixing it in a conspicuous
place on the outside, either of his dwelling-house or
of the place where the prisoner is confined. In that
case the service is complete without tendering the
fees or charges for bringing up the prisoner.

2 BR. 8. 574, 575, §§ 80 and 81, amended.

§ 2048.
Service of Order for Discharge of Prisoner.

The writ of discharge is abolished. A final order
to discharge a prisoner, made as prescribed in this
article, may be served in like manner, as an injunc-
tion order, and, when so served, it may be enforced
in the same manner, as a final judgment in a civil
action, except where special provision for its enforce-
AFFIDAVIT FOR PEREMPTORY WRIT OR MANDAMUS. 171

ment is otherwise made in this act. Where such an
order directs a discharge, upon giving bail, the ser-
vico thereof is not complete until service of the cer-
tificate or other proof prescribed by law, showing
that bail has been given as required thereby.

This provision is new.
As to the mode of service of an injunction order, see ante,
pages 163 to 166.

§ 2070.

Service of Notice of Application for Peremptory Writ of
Mandamus and Affidavits.

The notice must be served at least eight days be-
fore the application is heard ; unless a shorter time
is prescribed by an order to show cause, made, where
the application is to the special term, by the court,
or a judge thereof; or, where the application is to
the general term, by the general term, or a general-
term justice of that judicial department. In such
a case the application must be founded upon afii-
davits or other written proofs, a copy of which must
be served with the notice or order to show cause.
Where the court, board, or other body to be served,
consists of three or more members, the notice or
order to show cause, and the papers upon.which the
application is to be made may be served, as pre-
scribed in the next section for service of an alterna-
tive writ of mandamus. Exceptas prescribed in this
section, or by special provision of law, a peremptory
mandamus cannot be issued until an alternative man-
damus has been issued and duly served, and the re-
turn day thereof has elapsed.

A new provision.
172 SERVICE OF ALTERNATIVE WRIT OF MANDAMUS.

§ 2071.
Service of Alternative Writ of Mandamus.

An alternative writ of mandamus must be served,
by showing the original writ, and delivering a copy
thereof to the person to be served. Where it is
directed to a court, or to the judge or judges of the
court, it must be served either in term time or in
vacation upon the judge or judges of the court; ex-
cept that, where the court consists of three or more
judges, service upon a majority of them is sufficient.
Where it is to be served upon a board or body, other
than a corporation, service must be made upon a ma-
jority of the members thereof, unless the board or
body was created by law, and has a chairman, or
other presiding officer, appointed pursuant to law;
in which case service upon him is sufficient. Where
the writ is to be served upon a corporation, service
thereof may be made upon any officer upon whom a
summons issued out of the supreme court may be
served. Where one or more of the persons upon
whom to make service, as prescribed in this section,
cannot, after due diligence, be found, the exhibition
of the original writ may be dispensed with, and ser-
vice may be made upon him or them, as prescribed
by law for the service of a summons issued out of
the supreme court.

This section is new.

Before the Code of Civil Procedure, it was held, that the
service of an alternative writ of mandamus in vacation on
the judges of the C. P. was a good service.

People v. Westchester, C. P., 4 Cow. 73; S. C. 4 Cow. 403.
People v.. Herkimer, C. P., 7 Wend. 536.
RETURN TO ALTERNATIVE WRIT OF MANDAMUS. 173

An alternative mandamus should be served at least eight
days before the day specified in the writ for showing cause.

People v. Rensselaer, 3 How. Pr. 164.

Service of notice of motion for a mandamus on a majority
of the Contracting Board (a part of the Canal Board) of the
State, including the chairman, was held a sufficient service.

People v. Contracting Board, 20 How. Pr. 206.

An alternative writ of mandamus was held properly served
on the judges of the C. P., by showing each judge separately
the original mandamus, and delivering him a copy.

People v. Westchester, C. P., 4 Cow. 73; S. C. 4 Cow. 403.

§ 2081.

Service of Notice of Filing Return to Alternative Writ
of Mandamus, and Demurrer.

Where a return to an alternative writ of manda-
mus has been filed, the attorney for the defendant
making it must serve, upon the attorney for the
people or the relator, a notice of the filing thereof.
Where the people or the relator demur to the return,
or to a part thereof, a copy of the demurrer must be
served upon the attorney for the defendant, within
twenty days after the service of such a notice.
Where the defendant demurs to the writ, or to a
part thereof, a copy of the demurrer must be served
upon the attorney for the people or the relator,
within the time prescribed by law for filing it.

Rule 46.
174 SERVICE OF WRIT OF PROHIBITION.

§ 2095.

Service of Writ of Prohibition.

The writ of prohibition must be served upon the
court or judge, and also upon the party, as pre-
scribed by law for the service of an alternative writ
of mandamus. A copy of the papers, upon which it
was granted, must be delivered with each copy of

the writ.
2 R. S. 587, §§ 61, 62, amended.

As to mode of service of an alternative writ of mandamus,
see ante, pages 172 to 178, section 2071.

§ 2128.

Service of Notice of Application for Writ of Certiorari
to Review, ete.

Until provision is made, in the general rules of
practice, for requiring or dispensing with notice of
the application for the writ, the court to which the
application for the writ is made, may, in its discre-
tion, require or dispense with notice.

A notice, when it is necessary, must be served,
with copies of the papers upon which the application
is to be made, upon the body or officer, whose deter-
mination is to be reviewed, or upon such other per-
son as the court directs, as prescribed in this article
for the service of a writ of certiorari. The service
must be made, at least eight days before the applica-
tion, unless the court, by an order to show cause,
prescribes a shorter time. Where notice is given,.
SERVICE OF WRIT OF CERTIORARI. 175:

the person served may produce affidavits or other
written proofs, upon the merits in opposition to the:
application. °

New.
§ 2130.
Service of Writ of Certiorari.

A writ of certiorari must be served as follows,
except where different directions, respecting the
mode of service thereof, are given by the court:
granting it:

1. Where it is directed to a person or persons by
name, or by his or their official title or titles, or to:
a municipal corporation, it must be served upon
each officer or other person to whom it is so di-
rected, or upon the corporation, in the same manner
as a summons in an action brought in the Supreme
Court, except as prescribed in the next two subdivi-
sions of this section.

2. Where it is directed to a court, or to the judges
of a court, or to the judges of a court having a clerk
appointed pursuant to law, service upon the court,
or the judges thereof, may be made by filing the
writ with the clerk.

3. Where it is to be served upon any other board
or body, or upon the members thereof, it may be
served as prescribed in section 2071 of this act, for
service, upon a like board or body, of an alternative
writ of mandamus.

A new provision.
As to the mode of service indicated in subdivision three,
see ante, pages 170 to 171.
176 SERVICE OF ORDER TO SHOW CAUSE, ETC.

A copy of the affidavit on which the writ was allowed, need
not be served with the writ on the respondent.

People v. Perry, 16 Hun, 461.

Although it may be judicious to serve a copy of the affida-
vit with the writ.

People v. Perry, 16 Hun, 461.

Before the Code, it was held, that a writ of certiorari, when
served, should be accompanied with a certified copy of the
order of allowance, or a certificate of the clerk that the writ
was duly allowed.

Mott v. Commissioners, 19 Wend. 640.

While the indorsement on the writ that it was duly allowed,
may be proper, still it does not seem to be necessary.

§ 2165.

Service of Order to Show Cause in Proceedings for
Insolvent’s Discharge from his Debts.

2. The petitioner must also serve upon each credi-
tor, residing within the United States, whose place
of residence is known to him, a copy of the order to
show cause, either personally, at least twenty days
before the day when cause is to be shown, or by
depositing it, at least forty days before that day, in
the post-office, inclosed in a postpaid wrapper, ad-
dressed to the creditor, at his usual place of res-
idence.

Where the State is a creditor of the petitioner, a
copy of the order must be served upon the attorney-
general, who must represent the State in the subse-
quent proceedings.

Laws 1847, chap. 366, § 1.
PROOF OF SERVICE OF ORDER TO SHOW CAUSE. 177

The provisions of the statute, as to the manner of service,
must be strictly complied with, and, if the service is not
made in the manner prescribed by statute, the court does not
acquire jurisdiction to grant the discharge of the insolvent.

Billinge v. Pickert, 39 Hun, 504; 8. C. 1 N. Y. State R.
70; S. C. 9 Civ. Pro. 193; S. C. 23 W’k Dig. 403.
People v. Gray, 19 How. Pr. 238.

As, where the order directed the deposit of a copy of the
order in the post-office, addressed to the creditor at “ his
place of business,” instead of at “ his usual place of residence,”
as required by this section, it was held, that this was not a
compliance with the provisions of the statute.

Billinge v. Pickert, 39 Hun, 504; 8. C.1N. Y. State R.
10; S. C. 9 Civ. Pro. 193 ; S. C. 23 W’k Dig. 403.

Service by depositing the notice in the post-office in the
same town where the creditor resides is valid.

O'Connell v. Sutherland, 16 Abb. 460, n.

Where the insolvent is ignorant of, and cannot ascertain
the street, or street number of one or more of the creditors, it
is a sufficient compliance with the statute to mail the notice
addressed to the city or town where the creditor or creditors
to be served resides.

People v. Sutherland, 81 N. Y. 1; rev’g 16 Hun, 192.

§ 2166.
Proof of Service of Order to Show Cause, ete.

On the day specified in the order, and before any
other proceedings are taken in the matter, the peti-
tioner must present to the court, and file with the

clerk, proof, to the satisfaction of the court, that the
12
178 PROOF OF SERVICE OF ORDER TO SHOW CAUSE.

order has been published and served, as prescribed
in the last section ; and thereupon, on the same day,
or upon the day to which the hearing is adjourned,
the court must hear the allegations and proofs of
the parties appearing.

Proof of personal service of a copy of the order
upon any person, must be made in like manner ag
proof of personal service of a summons in an action.
brought in the supreme court.

Laws of 1847, chap. 366, § 2.

Proof of such service should be affirmatively shown, and
appear on the face of the proceeding, and cannot be inferred
or presumed.

People v. Gray, 19 How. Pr. 238,

The “satisfaction of the officer,” spoken of in this section,
isa legal satisfaction. It is such evidence as is fit and suffi-
cient to produce conviction in the mind acting judicially, and
not arbitrarily or capriciously.

People v. Sutherland, 81 N. Y. 1; rev’g 16 Hun, 192.

An affidavit averred that deponent “served a printed
notice of which the following is a copy;” it was objected,
that no notice followed the affidavit; in the printed appeal-
book a notice did follow the affidavit, and one preceded it; it
was held, that it did not appear that the affidavit was de-
fective in this particular.

People v. Sutherland, 81 N. Y. 1.

A discharge is wholly void, if the only proof of such notice
was of a notice purportiug to be returnable at a date sub-
sequent to that on which the discharge was granted.

Lewis v. Page, 8 Abb. N. S. 200.
ORDER FOR DISCHARGE FROM IMPRISONMENT. 179

§ 2205,

Service of Papers An application for Discharge from Im-
prisonment on Execution.

At least fourteen days before the petition is pre-
sented, the petitioner must serve upon the creditor
in each execution, by virtue of which he is im-
prisoned, a copy of the petition and of the schedule ;
together with a written notice of the time when,
and place where, they will be presented. If, by
reason of changes occurring after the service, it is
necessary, before presenting the petition and sched-
ule, to correct any statement contained in the
schedule, the correction may be made by a supple-
mental schedule, a copy of which need not be served
unless the court so directs.

2R.S. 31, § 3, amended.

It is not required, that the affidavit, prescribed by section
2204 of the Code of Civil Procedure, or a copy thereof, be
served with a copy of the petition and schedule.

Schaffer v. Riseley, 44 Hun, 6.

Where the notice of application for the discharge stated,
that it would be made at a term of the County Court, to be
held at the court-house, and the order upon its face showed
it to have been granted at a term, held at the office of the
county judge, it was held, that it was to be presumed that
said office was at the place specified in the notice, that is, the
court-house, and that the order was made at a regular term

of said court.
Goodwin v. Griffis, 88 N. Y. 629.

Where there was indorsed upon the petition an admission of
service, signed with the name of G., the plaintiff named
therein, with an affidavit of the petitioner’s attorney, to the
effect, that he knew G., and saw him sign, and it appeared
180 PAPER FOR DISCHARGE FROM IMPRISONMENT.

that G., with his counsel, was present before the county
judge upon the examination in the proceedings, and that the
other plaintiff, at the time the proceedings were instituted,
was a non-resident, and not in the State, and there was
evidence, also, that G. was in fact the sole owner of the
judgment, it was held, that the proof showed a substantial
compliance with the statute, and that it was not necessary to
serve upon the other plaintiff.

Goodwin v. Griffis, 88 N. Y. 629.

Where the plaintiff, the creditor, resides out of the State,
service of a notice of the petititon on the attorney in the suit,
is sufficient.

Bates v. Williams, 1 John’s Cas. 30.

§ 2206.
Id.; When Service Cannot be Made.

The papers, specified in the last section, may be
served, either upon the creditor or his representative,
or upon the attorney whose name is subscribed to
the execution; and, in either case, inthe manner
prescribed in this act for the service of a paper upon
an attorney in an action in the Supreme Court,
where it is made to appear by aflidavit, to the satis-
faction of the court, that service cannot, with due
diligence, be so made within the State, upon either.
The court may make an order, prescribing the mode
of service, or directing the publication of a notice in
lieu of service,in such a manner, and for such a
length of time, as it thinks proper ; and thereupon,
it may direct an adjournment of the hearing to such
a time as it thinks proper.

2R. 58. 31, part of § 3.
SERVICE OF PRECEPT IN SUMMARY PROCEEDINGS. 181

§ 2207.
Id., When State is a Creditor.

Where the State is a creditor, the papers must be
served upon the attorney-general, who must represent
the State in the proceedings.

2B. 8. 39, § 30.

§ 2240.

Service of Precept in Summary Proceedings to Recover
Possession of Land.

The precept must be served as follows :

1. By delivering to the person to whom it is
directed, or, if it is directed to a corporation, to an
officer of the corporation upon whom a summons,
issued out of the supreme court, in an action against
the corporation, might be served, a copy of the
precept, and at the same time showing him the
original.

2. If the person to whom the precept is directed
resides in the city or town in which the property is
situated, but is absent from his dwelling-house,
service may be made by delivering a copy thereof at
his dwelling-house, to a person of suitable age and
discretion, who resides there ; or, if no such person
can, with reasonable diligence, be found there, upon
whom to make service, then by delivering a copy of
the precept, at the property sought to be recovered,
either to some person of suitable age and discretion
residing there, or, if no such person can be found
there, to any person of suitable age and discretion
employed there.
182 SERVICE OF PRECEPT IN SUMMARY PROCEEDINGS.

3. Where service cannot, with reasonable diligence,
be made, as prescribed in either of the foregoing
subdivisions of this section, by affixing a copy of the
precept upon a conspicuous part of the property.

If the precept is returnable on the day on which
it is issued, it must be served at least two hours before
the hour at which it is returnable ; in every other
case, it must be served at least two days before the
day on which it is returnable.

2R. 8S. 514, § 32 ; Laws of 1857, chap. 684 ; Laws of 1868,
chap. 828.

The summons must be directed to, as well as served on,
the person to be removed. Where it was directed to the
lessee by name, * or any other person claiming possession of the
premises,” and was served on one not the lessee, but who was
in possession, it was held, that no jurisdiction was acquired
by such service.

Hill v. Stocking, 6 Hill, 314.
Sims v. Humphrey, 4 Den. 185.

Where it appears that the summons was issued directed to
the original lessee of the premises and was served upon the
under tenant in possession only, such service is insufficient.
Service should be made upon both.

In re Glenn, 1 How. Pr. 213.

Service on the general agent of a corporation was held

sufficient.
People v. City of Troy, 6 Alb. L. J. 326.

As to the mode of service of a summons upon a corpora-

tion, see
Ante, pages 27 to 43.

An omission to show the original summons renders the
service irregular.

Duell v. Rust, 24 Barb. 438,
DUTY OF PERSON SERVING PRECEPT. ~ 183

A slight and immaterial variance between the original sum-
mons, and the copy served, where the person is not misled
thereby, will be disregarded.

People v. Flannigan, 3 W’k Dig. 579.

Where there are two or more defendants who are absent
from the premises, the leaving of one copy of the summons,
‘with a person in charge, is not sufficient to give jurisdiction.

People v. De Camp, 12 Hun, 378.

Where the summons was made returnable on Novy. 25, a
‘service thereof on the 23rd was held sufficient.

People v. Marvin S. Co., 5 Hun, 218.

Personal service of a precept out of the jurisdiction issuing
it, gives no jurisdiction.

Beach v. Bainbridge, 7 Hun, 81.

§ 2241.

Duty of Person to whom a Copy of Precept is Delivered.

A person to whom a copy of a precept, directed to
another, is delivered, as prescribed in this title,
must, without any avoidable delay, deliver it to the
person to whom it is directed, if he can be found
within the same town or city; or, if he cannot be so
found, to his agent therein; and if neither can be so
found, after the exercise of reasonable diligence,
before the time when the precept is returnable to
the judge or justice who issued the same, at the time
of the return thereof, with a written statement in-
dorsed thereupon, that he has been unable, after the
exercise of reasonable diligence, to find the person
184 SERVICE OF PRECEPT IN SUMMARY PROCEEDINGS.

to whom the precept is directed, or his agent, within
the town or city. A person who willfully violates.
any provision of this section, is guilty of a mis-
demeanor; and, if he is a tenant upon the property,
forfeits to his landlord the value of three years rent:
of the premises occupied by him. A copy of this
section must be indorsed upon each copy of a pre-
cept served otherwise than personally upon the per-
son to whom it is directed.

Laws of 1868, chap. 828, § 3; and 1 RB. S. 748, § 27.

§ 2242.

When Precept to be Served on Landlord of Bawdy-
House, ete.

Where the case is within section 2237 of this act,
the precept must be directed to and served upon the
owner or landlord, or his agent, and also upon the
tenant or occupant of the property. Hither or both
of them may, upon the return day, appear and show
cause why the tenant or occupant should not be
removed from the property.

2R. 8. 516, part of §§ 63 and 64; Laws of 1868, chap. 764.

§ 2243.
Proof of Service of Precept.

At the time when the precept is returnable, the
petitioner must, unless the adverse party appears,
make due proof of the service thereof, showing the
time, and the place and manner of service; and, un-
less service was made personally upon the adverse
PROOF OF SERVICE OF PRECEPT. 185.

party, or by affixing a copy of the precept, the name
of a person to whom a copy of the precept was de-
livered, if his name can be ascertained with reason-
able diligence. Where service is made by a sheriff,
constable or marshal, it may be proved by his cer-
tificate stating the facts.

From 2 R. 8. 514, § 33; also § 32 as amended by the Laws.
of 1868, chap. 828.

The proof may be made as prescribed by section 484 of the
Code of Civil Procedure.

See ante, pages 43 to 54.

A constable’s oral evidence of the service of the summons
is admissible, even though he may have made a written re-
turn by affidavit, and if due service is proved by such evi-
dence, that is sufficient to give jurisdiction.

Robinson v. McManus, 4 Lans. 380.

The certificate of the constable showing a service of the
summons upon the defendant personally, by showing the
original and delivering a copy thereof to him, is due proof of
the service thereof.

People v. Lamb, 10 Hun, 348.

Where the service of the summons is sworn to as being
upon a date prior to that of the summons itself, the variance
is fatal; it is not a mere clerical error that may be corrected,
for it leaves the case without any proof as to the time of ser-
vice, and, if accepted, would give possible effect to an illegal

service.
People v. Boardman, 4 Keyes, 59.

The affidavit must state that, at the time of service, the
original summons was shown and a copy delivered or left.

Duell v. Rust, 24 Barb. 438.
186 SHRVICE OF PRECEPT IN SUMMARY PROCEEDINGS.

It must appear by the return, that the precept was served
-on each defendant.

People v. De Camp, 12 Hun, 378.

An affidavit in proceedings against one, of service upon an-
other named, “residing on the premises,” the first person
being absent, is insufficient.

Cameron v. MacDonald, 1 Hill, 512.

The affidavit of service should show that a copy was left
with a person of suitable age and discretion, at the tenant’s
-dwelling-house.

See Cameron v. McDonald, 1 Hill, 512.

People v. Matthews, 43 Barb. 168.
People v. Platt, 43 Barb. 116.

It should not only show, that the copy precept was so
served, but that the notice required by section 224 of the
Code of Civil Procedure to be endorsed thereon, was there
when served.

In re Rathbun, 10 N. Y. State R. 268; S. C. 13 Civ. Pro.
50.

An affidavit which alleges service on an under-tenant on
the demised premises, and that the tenant was absent from
his last and usual place of residence, without stating that such
residence is on the demised premises, gives no jurisdiction.

People v. Platt, 43 Barb. 116.

An affidavit that a summons was served by “ affixing, and
leaving so affixed, a true copy of the summons upon a con-
spicuous part of the premises, there being no person residing
on, or employed on said premises,” is insufficient, as it does
not show that defendant had no residence in the city, or if he
had one, that no person of suitable age or discretion upon
whom service might be made, could be found there.

Beach v. Bainbridge, 7 Hun, 81.
‘SERVICE OF ORDER TO SHOW CAUSE, IN CONTEMPT. 187

If the return is defective, it may be amended at any time
before judgment, and the power of amendment does not
depend upon the appearance of the defendants in the pro-

ceeding.
Feickert v. Freisen, 1 City Ct. R. 369.

The return to a precept in summary proceedings cannot be
shown to be false in another action, for the purpose of defeat-
ing an action and rendering parties enforcing it trespassers.

Feickert v. Freisen, 1 City Ct. R. 369.

The appearance of defendant waives any defect in the
affidavit on which the proceedings are founded.

McCarthy v. Noble, 5 N. Y. Leg. Obs. 880.
Sims v. Humphrey, 4 Den. 185.

A failure to appear admits the landlord’s rights, and pre-
cludes an objection on certiorari to the regularity of the pro-

ceedings.
People v. Ulrich, 2 Abb. 28.

§§ 2271-2273.

Service of Order to Show Cause in Proceedings to Punish
for a Contempt.

In proceedings for contempt to enforce civil remedies, the
order to show cause may be served on the defendant’s

attorney.
e Pitt v. Davison, 87 N. Y. 235; 8. C. 34 How. Pr. 355;
8. C. 3 Abb. N. S. 398; aff’g 12 Abb. 385; rev’g
387 Barb. 97.
Walker v. Walker, 20 Hun, 401.
Mahon v. Mahon, 5 Civ. Pro. 61; 8. C. 50 Super. Ct. 92.

If the defendant contemptuously refuse to receive the
order to show cause, it is sufficient to authorize the issuing
of an attachment.

Graham v. Bleakie, 2 Daly, 55.
188 SERVICE OF PAPERS IN PROCEEDINGS FOR CONTEMPT,

Where an order, that an administratrix show cause, was
addressed to her individually and not as administratrix, but
the copy of the decree had been served, and was referred to
in the order, it was held, the error might be amended.

Gillies v. Kreuder, 1 Dem. 349.

§ 2274.

Service of Affidavit and Warrant in Proceedings to
Punish for a Contempt.

A copy of the warrant and of the affidavit upon
which it is issued, must be served upon the accused
when he is arrested by virtue thereof.

2B. S. 535, § 3.

A copy of the papers on which the attachment is founded
should be served.

In re Smethurst, 2 Sandf. 724; S. C. 4 How. Pr. 369.
Ward v. Arenson, 10 Bosw. 589.
Neafie’s Case, 4 C. H. Rec. 168.

It is sufficient, that a party charged with contempt has
reasonable notice of an application to punish him, and was
served with copies of the affidavits on which it wis based.

Clark v. Bininger, 43 Super. Ct. 126; aff'd 75 N. Y. 344.
It was held, that it was unnecessary to serve, on the party

in contempt copies of the papers already in his possession,
and referred to in the order to show cause.

Clark v. Bininger, 43 Super. Ct. 126.
But that decision was rendered, when this section was a

provision of the Revised Statutes, which did not imperatively
require, as does this section, that a copy of the affidavit
ORDER TO DISCOVER DEATH OF LIFE-TENANT. 189

should be served upon the accused, at the time he is arrested.

Though an attachment must be served personally upon the
party, notice of the subsequent proceedings may be given to
his attorney, in all cases where the personal presence of the
party is not required.

Watrous v. Kearney, 11 Hun, 584; aff’d 79 N. Y. 496.

§ 2304.

Service of Petition and Notice in Proceedings to Dis-
cover Death of Life-Tenant.

A copy of the petition, including the affidavit, to-
gether with notice of the time and place at which
the petition will be presented, must be personally
served, at least fourteen days before its presenta-
tion, upon the person required, by the prayer thereof,
to produce the tenant for life.

2K. S. 344, part of § 3.

§ 2306.

Service of Order in Proceedings to Discover Death of
Life-Tenant.

Where an order requiring the production of the
tenant for life, or proof that he is living, is made as
prescribed in section 2305 of the Code of Civil Pro-
cedure, a certified copy thereof must be served, at
least fourteen days before the time therein specified
upon the person required to make the production of
the proof, or upon his attorney.

QR. S. 344, § 5.
190 SERVICE OF NOTICE OF SALE IN FORECLOSURE, ETC.

§ 2389.

Service of Notice of Sale, in Foreclosure by Advertise-
ment.

Service of notice of the sale, as prescribed in sub-
division fourth of the last section, must be made as
follows :

1. Upon the mortgagor, his wife, widow, executor
or administrator, or a subsequent grantee of the
property, whose conveyance is upon record, or his
wife or widow, by delivering a copy of the notice, as.
prescribed in article first of title first of chapter fifth.
of this act, for delivery of a copy of a summons, in
order to make personal service thereof upon the per-
son to be served; or by leaving such a copy ad-
dressed to the person to be served, at his dwelling-
house, with a person of suitable age and discretion,
at least fourteen days before the day of sale. If said
mortgagor is a foreign corporation, or being a natural
person, he or his wife, widow, executor or adminis-
trator, or a subsequent grantee of the property,
whose conveyance is upon record, or his wife or
widow, is not a resident of, or within this State, then
service thereof may be made upon them in like
manner without the State, at least twenty-eight days
prior to the day of sale.

2. Upon any other person, either in the same
method, or by depositing a copy of the notice in the
post-office, properly inclosed in a postpaid wrap-
per, directed to the person to be served, at his place
of residence, at least twenty-eight days before the
day of sale.

2R. 8. 545, § 38, amended; Laws of 1844, chap. 346.
SERVICE OF THE NOTICE BY MAIL. 191

This section was amended by the laws of 1889, chap. 685.

As to the mode of service of a copy of the summons as pre-
scribed in article first of title first of chapter fifth of the Code
of Civil Procedure, see ante, pages 4 to 48.

A wife of the grantee of mortgaged premises must be
served with notice, and made a party to the proceedings to
foreclose the, mortgage.

Northrup vy. Wheeler, 43 How. Pr. 122.

SERVICE OF THE NOTICE BY MAIL.

The service of notice of sale by mail is valid, even though
the persons to whom the notices are sent reside in the same
place with the party foreclosing and his attorney.

Stanton v. Kline, 11 N. Y. 196.
Or, the notice to the mortgagor may be mailed anywhere:
within the state.

Bunce v. Reed, 16 Barb. 347.

The affidavits must show that the places to which notices
mailed to the parties were addressed, were their residences.

Dwight v. Phillips, 48 Barb. 116.

Where it was attempted to serve notice by mail upon the
mortgagor, but the notice was by mistake addressed to her,
at a place other than her residence, the sale was held void.

Robinson v. Ryan, 25 N. Y. 320.
The service of a notice of sale, where the mortgagor is

dead, must be made on the executor or administrator, and
one must be appointed to have a valid foreclosure.

Mackenzie v. Alster, 64 How. Pr. 388.
Van Schaack v. Saunders, 32 Hun, 518, and cases cited..
192 PAPERS IN SUPPLEMENTARY PROCEEDINGS.

The service of a notice of sale, addressed to the adminis-
tratrix, is sufficient, though the word “ administratrix ” is not
added to her name.

George v. Arthur, 2 Hun, 406,

Where service is made by mail, the twenty-eight days are
to be counted from the time of the deposit of the letter, and
not from the post-mark or the forwarding of the letter.

Hornby v. Cramer, 12 How. Pr. 490.
See further provisions as to service, ante, pages 134 to 140.

§ 2406.
Service of Notice of Application for Surplus Money.

Notice of the application must be served in the
manner prescribed in this act for the service of a
paper upon an attorney in an action, upon each per-
son who has filed a like petition, at least eight days
before the application; and also upon each person
upon whom a notice of sale was served, as shown in
the affidavit of sale, or upon his executor or adminis-
trator. But if it is shown to the court, by affidavit,
that service upon any person required to be served
cannot be so made with due diligence, notice may
be given to him in any manner which the court di-

rects.
Laws of 1868, chap. S04, § 3, amended.

§ 2452.

Service of Order and Affidavit in Supplementary Pro-
ceedings.
An injunction order, or an order requiring a per-
son to attend and be examined, made as prescribed
in this article, must be served as follows:
PAPERS IN SUPLEMENTARY PROCEEDINGS. 1938

1. The original order, under the hand of the judge
making it, must be exhibited to the person to be
served.

2. A copy thereof and of the affidavit upon which
it was made, must be delivered to him.

Service upon a corporation is sufficient if made
upon an officer to whom a copy of a summons must
be delivered, where a summons is personally served
upon the corporation; unless the officer is specially
designated by the judge, as prescribed in section
2444 of this act.

New. Based on 2 R.S. 401, § 44.
The order must be personally served upon the judgment
debtor. There can be no substituted service.

Barker v. Johnson, 4 Abb. 435.
Green v. Bullard, 8 How. Pr. 313.
Utica C. Bx. v. Buell, 17 How. Pr. 498; 8. C. 9 Abb. 385.
arquharson v. Kimball, 18 How. Pr. 35; 5. C. 9 Abb.
385, D.

Where the debtor after being served, moved to vacate the
order, and on such motion an order was made denying it, and
ordering the debtor to appear on a day named, it was held,
that the last-mentioned order need not be personally served.

Johnson v. Tuttle, 17 Abb. 315.

Service of the order after the return day is void, and gives
no jurisdiction over the person of the judgment debtor.

Henderson v. Stone, 2 Sweeney, 468; 8. C. 40 How. Pr. 333.
People v. Warner, 20 N. Y. State R. 575.

Any person may serve the order.

Utica C. Bk. v. Buell, 9 Abb. 385; S. C. 17 How. Pr. 498.

Where the copy of the affidavit served with the order, did
not contain the copy signature of the affiant, nor of the officer
194 WARRANT OF ARREST ON JUDGMENT DEBTOR.

administering the oath, it was held, that the service was
defective, and a motion to dismiss the proceedings should be

granted.
Nat. Printing Co. v. Patterson, 4 Law Bull. 64.

If the order is made by a justice of the Supreme Court, it
may be served anywhere in the State; but if the order is made
by a judge of local jurisdiction, it can only be served within
the territorial limits of his jurisdiction.

Service of the order cannot be made upon a non-resident of
the State, while on his way from the court-house, where he
has been attending the trial of an action in which he was
plaintiff, to a place out of the State.

Tribune Association v. Sleeman, 12 Civ. Pro. 20.
See ante, pages 20 to 23.

The sheriff’s certificate is not sufficient proof of service
of the order. It should be made by affidavit.

Utica C. Bk. v. Buell, 9 Abb. 385; 17 How. Pr. 498.

An irregularity or defect in service, or the proof of service,
is waived by appearance, and submitting to an examination
without objection.

Green v. Bullard. 8 How. Pr. 313.

Utica C. Bk. v. Buell, 17 How. Pr. 498; S. C. 9 Abb. 385.
Billings v. Carver, 54 Barb. 40.

Newell v. Cutler, 19 Hun, 74.

§ 2458.
Service of Warrant of Arrest on Judgment Debtor.

The sheriff, when he arrests a judgment debtor by
virtue of a warrant issued, as prescribed in this ar-
ticle, must deliver to him a copy of the warrant, and
of the affidavit upon which it was granted.

This section is new.
SERVICE OF PROCESS OF A SURROGATE’S couRT. 195

SERVICE OF PROCESS OF A SURROGATE’S
COURT.

§ 2520.
Service of Citation in the State.

Except where special provision is otherwise made
by law, service of a citation, within the State, must
be made upon an adult person, or an infant of the
age of fourteen years or upwards, by delivering a
copy thereof to the person to be served, or by leav-
ing a copy at his residence, or the place where he
sojourns, with a person of suitable age and discretion,
under such circumstances, that the surrogate has
good reason to believe, that the copy came to his
knowledge in time for him to attend at the return
day. A citation must be so served, if within the
county of the surrogate or an adjoining county, at
least eight days before the return day thereof; if in
any other county, at least fifteen days before the
return day; unless, in either case, the person served,
being an adult and not incompetent, assents in writ-
ing to a service within a shorter time, Any person,
although a party to the special proceeding, may
serve a citation.

This section is new in form.

The citation may be served by an executor or legatee under
the will, or by any other person.

Wetmore v. Parker, 52 N. Y. 450 ; aff’g 7 Lans, 121.

Before the Codes, even, it was held, that service of a citation
196 SERVICE OF CITATION IN THE STATE.

on an infant or ward, was properly made by delivering it to the
ward personally, in the presence of the ward’s legal guardian.

Kellett v. Rathbun, 4 Paige, 102..
Brick’s Estate, 15 Abb. 12..

In the absence of the assent, prescribed in this section, a
service less than the prescribed time does not give jurisdiction.

Boerum v. Betts, 1 Dem. 471.

In computing the time of service of a citation, the return
day is to be included, and the day of service excluded. Ser-
vice upon the 12th, of a citation returnable on the 20th, is,
therefore, a sufficient eight days’ notice.

In re Carhart, 2 Dem. 627; 8S. C. 67 How. Pr. 216.

It seems, that a non-resident is entitled to a service of thirty
days, although the citation is served upon him, while he is
passing through the surrogate’s county.

In re Merritt, 5 Dem, 544.

And, where it appears, that the party, to be cited, is an
infant residing in another State, the citation should be served
at least thirty days before the return day, notwithstanding
that the infant may be brought within the surrogate’s county,
for the purpose of having the citation served upon him.

In re Merritt, 5 Dem. 544.
A party who is competent may waive service of a citation.

Lawrence’s Estate, 19 Dai. Reg. No. 39,

Citations and other mandates, issued by a surrogate may be
served in any county.

Code of Civil Procedure, § 2515.

Where the plaintiffs were appointed administrators after
the revocation of letters granted to one D., and they procured
SERVICE OF CITATION IN THE STATE. 197

a citation requiring him to account, which was served, by
leaving it at his house, he having absconded fromt he State, it
was held, that the court acquired jurisdiction by such service.

Harrison v. Clark, 87 N. Y. 5723; aff’g 20 Hun, 404.

Where a citation to attend an executor’s accounting was
served, seven weeks before the return day, upon one of the
legatees at her residence in the county, by leaving a copy with
a person of suitable age, entrusted by her with its charge, she
being at the time temporarily sojourning in England, it was
held, that the service was made under such circumstances,
that the surrogate had good reason to suppose that the copy,
came to the knowledge of the party to whom it was addressed,
and that the service was sufficient.

Mead v. Miller, 3 Dem. 577.

Under sections 2766 to 2768 of the Code, in proceedings for
the discovery of assets withheld, the citation can only be
issued by special direction of the surrogate, and a copy of the
petition and order must be personally served, and the original
order exhibited, or the service will not bring the party into

contempt.
Mauran v. Hawley, 2 Dem. 396.

A variance between a citation and a copy served, is curable
by amendment, where the respondent has appeared.

Pryer v. Clapp, 1 Dem. 387.

It is by rule of the surrogate’s court, of New York county,
provided, that no mandate is deemed duly served, unless
copies of the petition, or other paper or papers upon which it
was issued, and upon which relief is sought, is served with
them, except the following:

1. Citation to attend probate. 2. Citation on allegations to
contest wills. 8. Citation on application for administration.
4, Citation on final accounting. 5. Citation to temporary
administrator to account. 6. Citation for administrator to
198 SUSBTITUTED SERVICE OF A CITATION.

give new sureties, in place of sureties who apply to be re-
leased. 7. Citation to temporary administrator to make de-
posit. 8. Citation on summons to executor to appear and
qualify. 9. Citation to the executor or administrator to file
inventory. 10. Order to show cause against sale, etc., of real
estate. 11. Why an account shall not be made on surrogate’s

motion.
Rule III, Sept. 1, 1880.

This section and the following, in general, assimilate service
to that in other courts of record, though there are differences,
as in the last sentence of this section.

Bliss’ Code, § 25, 20, n.

§ 2521.
Substitute for Personal Service upon a Resident.

Where it appears by affidavit, to the satisfaction
of the surrogate, from whose court a citation issued,
that proper and diligent effort has been made to
serve it upon a resident of the State, as prescribed
in the last section ; and that the person to be served
cannot be found, or, if found, that he evades service,
so that it cannot be made: the surrogate may make
an order, directing that service thereof be made, as
prescribed in section 436 of this act ; and the pro-
visions of that section and of section 437 of this act,
relating to the service of a summons, apply to the
service of a citation, pursuant to an order, made as
prescribed in this section.

This section is new in form.
As to the provisions of sections 486 and 437 of the Code of
Civil Procedure, with cases, see ante, pages 61 to 64.
SERVICE OF CITATION BY PUBLICATION, ETC. 199

§ 2522.
Service of Citation by Publication or without the State.

The surrogate, from whose court a citation is
issued, may make an order directing the service
thereof without the State, or, by publication, in
either of the following cases :

1. Where it is to be served upon a foreign corpo-
ration, or upon a person who is not a resident of the
State,

2. Where the person to be served, being a resident
of the State, has departed therefrom with intent to
defraud his creditors, or to avoid the service of
process.

3. Where the person to be served, whether an
adult or an infant, is a resident of the State, but is
temporarily absent therefrom.

4, Where the person to be served is a resident of
the State, or a domestic corporation, and an attempt
was made to serve a citation, issued from the same
surrogate’s court, upon the presentation of the same
petition ; before the expiration of the limitation
applicable to the enforcement of the claim set forth
in the petition, as fixed in chapter fourth of this
act ; and the limitation would have expired within
sixty days next preceding the application for the
order, if the time had not been extended by the
attempt to serve the citation.

New in form, and as amended in 1881.

Compare this section with section 458 of the Code relating
to the service of a summons from a court of record. Ante,
page 64 et seq.

Prior to the present Code it was held, that the court could,
200 SERVICE OF CITATION BY PUBLICATION, ETC.

order a service of a citation without the State, upon a non-
resident, independently of statute.

Stevens v. 8tevens, 3 Redf. 265.

§ 2523.

Id., Upon Persons Unknown, ete.

The surrogate may also make an order, directing
the service of a citation without the State, or by
publication, in either of the following cases :

1. Upon a party to whom a citation is directed,
either by his full name or part of his name, where
the surrogate is satisfied, by affidavit, that the
residence of that party cannot, after diligent inquiry,
be ascertained by the petitioner.

2, Upon one or more unknown creditors, next of
kin, legatees, heirs, devisees, or other persons in-
cluded in a class, to whom a citation has been
directed, designating them by a general description
as prescribed in this article.

New. See Code of Civil Procedure, § 451.

§ 2524.
Contents of Order. When and how Made.

Where an order, directing the service of a citation
without the State, or by publication, is made as
prescribed in the last two sections, the party apply-
ing therefor must produce proof, by affidavit or
otherwise, to the satisfaction of the surrogate, that
the case is one of those specified in those sections.
The order must direct that service of the citation,
CONTENTS OF ORDER. 201

upon the person named, or described in the order,
be made by publication of the citation in two news-
papers, designated as prescribed in this article, for a
specified time, which the surrogate deems reasonable,
not less than once in each of six successive weeks ;
or, at the option of the petitioner, by delivering a
copy of the citation, without the State, to each
person so named or described, in person, and if the
person to be served is an infant under the age of
fourteen years, also to the person with whom he is
sojourning, or, if the service is made upon a corpo-
ration, to an officer thereof, specified in section four
hundred and thirty-one or four hundred and thirty-
two of this act.

It must also contain either a direction, that on or
before the day of the first publication, the petitioner
deposit, in a specified post-office, a copy of the cita-
tion and of the order, contained in a securely closed
post-paid wrapper, directed to the person to be served
at a place specified in the order, and, if the person
to be served is an infant under the age of fourteen
years, a further copy, likewise contained in a se-
curely closed post-paid wrapper, directed to the per-
son with whom such infant is sojourning, or, a state-
ment that the surrogate, being satisfied, by the affi-
davit upon which the order was granted, that the
petitioner cannot, with reasonable diligence, ascer-
tain a place or places where the person to be served
would probably receive matter transmitted through
the post-office, dispenses with the deposit of any
papers therein.

This section corresponds to section 440 of the Code, relating

to a similar order, relating to publication, etc., of a summons.
See ante, pages 84 to 96.
202 SERVICE OF CITATION.

§ 2525.
What time required for Delivery of a Copy.

Where service is made by delivering a copy of the citation
without the State, pursuant to an order, made as prescribed
in the last section, it must be made, if within the United
States, at least thirty days, if without the United States, at
least forty days before the return day of the citation. Proof
of publication, deposit or delivery may be made as prescribed
in section 444 of this act.

See sections 489, 440, ante, pages 69, 84; also see cases
under section 2520, ante, page 195.

Service of the citation without the State, thirty days before
the return day, is sufficient, and publication in the State paper
is unnecessary, when personal service is made without the

State.
In re Macauley, 94 N. Y. 578,

¢

§ 2526.

Service of a Citation upon a Corporation, Infant,
Lunatic, ete.

Service of a citation must be made upon an infant
under the age of fourteen years, a person judicially
declared to be incompetent to manage his affairs by
reason of lunacy, idiocy or habitual drunkenness, or
a corporation, in the manner prescribed for personal
service of a summons upon such a person, or upon a
corporation, in article first of title first of chapter
fifth of this act.

This section is new in form. See Laws of 1870, chapter
693. Also see ante, pages 4 to 17, section 426 and cases, and
pages 27 to 48, sections 431 and 482, and cases.
IN CERTAIN CASES OF INFANCY OR LUNACY. 203

§ 2527.

Service of Citation in certain Cases of Infancy or
Lunacy, ete.

Where a person, cited or to be cited, is an infant
of the age of fourteen years or upwards, or where
the surrogate has, in his opinion, reasonable grounds
to believe that a person, cited or to be cited, is an
habitual drunkard, or, for any cause, mentally in-
capable adequately to protect his rights, although
not judicially declared to be incompetent to manage
his affairs, the surrogate may, in his discretion, with
or without an application therefor, and in the in-
terest of that person, make an order requiring that a
copy of the citation be delivered, in behalf of that
person, to a person designated in the order; and that
service of the citation shall not be deemed complete
until such delivery. Where the person, cited or to
be cited, is an infant under the age of fourteen years,
or a person judicially declared to be incompetent to
manage his affairs, by reason of lunacy, idiocy or
habitual drunkenness, and the surrogate has reason-
able ground to believe that the interest of the per-
son to whom a copy of the citation was delivered, in
behalf of the infant or incompetent person, is adverse
to that of the infant or incompetent person, or that
for any reason he is not a fit person to protect the
latter’s rights, the surrogate may likewise make such
an order.

New in form. Laws of 1872, chap. 693. See ante, page
195, section 2520, and cases cited. Also see ante, pages 24,
95, sections 427 and 428, and cases cited.

This section does not take away any safeguard for the pro-
204 SERVICE OF CITATION.

tection of the insane person, and such appointment does not:
dispense with the necessity of personal service upon the
insane person, or publication, etc., if he is a non-resident.
The service upon the appointee should be additional.

In re Cortwright, 3 Dem. 13.

§ 2535.
Publication of Citation, ete.

Where a provision of this chapter, or an order
made pursuant to such a provision, directs the
publication of a citation, notice or other paper,
or the service thereof by publecation, the pub-
lication must be made in a newspaper published
in the county. The surrogate may, also, in his dis-
cretion, direct the publication thereof in any other
newspaper published in the same or another county,
as he deems proper, for the purpose of giving notice
to the persons intended to be served or notified. If
no newspaper is published in the county, the cita-
tion, notice or other paper, must be published in the
newspaper printed at Albany, in which legal notices.
are required by law to be published.

Laws of 1874, chap. 487; 2 R. S. 107, part of § 40.

§ 2536.

Publeation of Citation, ete.

In either of the following cases, a citation, notice
or other paper, directed to be published by a provi-
sion of this chapter, or by an order made pursuant:
to such a provision, must, in addition to the publica-
PROOF OF SERVICE CF CITATION, ETC. 205

tion thereof, made as prescribed in the last section,
be published in the newspaper printed at Albany, in
which legal notices are required by law to be pub-
lished.

1. Where the special proceeding is instituted in -
the surrogate’s court of the county of New York, or~
of the county of Kings, or the order for publication
is made by the surrogate of either of those counties.

2. Where the special proceeding relates to the
estate of the decedent, and the order directs the
‘additional publication therein. Such a direction
may be given, in the discretion of the surrogate,
where the person upon whom the service is to be
made, or to whom notice is to be given, is not a res-
ident of the State. But where it affirmatively ap-
pears, from the papers upon which the order is
granted, or from the papers then on file in the sur-
rogate’s court, relating to the same estate, that the
property of the decedent, or, if the special proceed-
ing relates to a portion only of the property, that
the portion to which it relates does not exceed two
thousand dollars in value, the order may, in the dis-
cretion of the surrogate, direct the publication re-
quired by this section to be made gratuitously; in
which case that newspaper must make the publica-
tion without charge.

Laws of 1874, chap. 487, § 1, amended.

§ 2532.
Proof of Service of Citation, Subpwna, ete.

Proof of service of a citation, or a subpeena, issued
from a surrogate’s court, must be made in the man-
206 SERVICE OF CITATION,

ner prescribed by law for proof of service of a sum-
mons issued out of the Supreme Court. In every
other case, proof of service must be made by affida-
vit; or, where the person served is of full age, and
not incompetent, by a written admission signed by
him, accompanied with proof, by affidavit or other-
wise, of the genuineness of his signature.

Laws of 1837, chap. 460,

As a service of a citation for the probate of a will, made
by an executor or a legatee, is legal and valid, so his affidavit
of service is competent proof thereof.

Wetmore v. Parker, 7 Lans. 121; aff’d, 52 N. Y. 450.

Where the proof of service of citation, on a creditor of the
estate, to attend the final accounting by its administrators,
consisted in allegations of fact, contained in the record of
such proceedings showing jurisdiction of the surrogate therein,
it was held, that there was prima facie evidence of such ser-
vice, and that the creditor was bound by the decree.

Rose v. Lewis, 3 Lans. 320.

But a mere recital in a decree upon an accounting that cer-
tain infant legatees had been duly served with the citation, is
not conclusive of such service.

Hood v. Hood, 85 N. Y. 561.

It has been held, that no proof of service was necessary to
give the surrogate jurisdiction where the parties voluntarily
appeared in person.

Everts v. Everts, 62 Barb. 577.
Board v. Board, 4 Abb. 295.

And see Code of Civil Procedure, § 2528, and ante, p. 54,
§ 424, and cases cited.

Proof of service of a citation or subpcena issued from a sur-
ON ATTORNEY APPEARING IN SURROGATES’ couRTS. 207

rogate’s court, is assimilated to proof of service of summons
in other courts of record.

See ante, p. 43 to 54, § 484, and cases cited; pages 62 to 64,
§ 437, and page 109, § 444.

In the Surrogate’s Court of the County of New York, by
rule, proof must be furnished the clerk of the service of all
orders, citations, summons and other papers on which motions
or applications are to be based, before one o’clock on Wednes-
days and Saturdays, that the motion calendar may be pre-
pared.

§ 2538.

Service of Papers upon Attorneys Appearing in Sur-
rogates’ Courts.

Except where a contrary intent is expressed in, or
plainly implied from the context of, a provision of
this chapter, the provisions as to service of papers:
upon attorneys in actions in other courts of record,
apply to surrogates’ courts, and to the proceedings.
therein, so far as they can be applied to the sub-
stance and subject-matter of a proceeding without
regard to its form.

See ante, pages 130 to 182, §§ 796 to 802, and cases cited.

In re Halsey, 18 Abb. N. C. 354.
208 SERVICE OF SUMMONS.

SERVICE OF SUMMONS IN JUSTICES’ COURTS.

§ 2878.
Service of Summons.

Personal service of the summons must be made
by delivering a copy thereof to the defendant; ex-
cept where it is specially prescribed in this chapter
that personal service may be made by delivering a
copy to another person. Where service of a sum-
mons is personal, it must be made at least six days
before the time of appearance specified therein ; ex-
cept where it is accompanied with an order of arrest.

2B. S. 228, § 15 amended.
1. Who May Serve Summons.
A mandate must be executed by the constable to whom it
is delivered for service. He cannot shake off the burden of

discharging his duty, by substituting another constable or
other person in his place.

Dows v. McGlynn, 2 Hilt. 14; S. C. 6 Abb. 241,

A constable to whom a mandate is directed and delivered,
must execute it in person, pursuant to the tenor thereof.

Code of Civil Procedure, § 5157.

But he -s not required to make the service until his fees
therefor have been paid.

Code of Civil Procedure, § 3328.

If the constable has reason to apprehend that resistance
will be made to the service of the summons, he may deliver
it to the sheriff of the county, with a written certificate, stat-
ing the facts, and requiring the sheriff to execute it.

Code Civil Procedure, § 3158.
JUSTICES’ COURTS. 209

It was formerly held, that the plaintiff could be deputized
to serve his own summons.

Putnam v. Man, 3 Wend. 202.
Tuttle v. Hunt, 2 Cow. 436.

But this has been changed, and now, only a proper person,
not a party to the action, may be empowered by written
authority to make the service.

Code of Civil Procedure, § 3156.

It is not necessary, that the justice should certify, that the
person deputized to make the service, is of age, and not a
party to the action, as it is not presumed, that he selects an
incompetent person.

Buel v. Duke, 38 Mich. 167.

When a private person has been empowered to make the
service, he has all the power and authority, and is subject to
all the obligations and liabilities of a constable; and his re-
turn is evidence in like manner as a constable’s.

Code of Civil Procedure, § 3156.
See Jackson v. Sherwood, 50 Barb. 356.

2. When to be Served.

As to when a summons may be served, see ante, pages 13
to 15, and cases cited.

Fractions of a day in the service of process are not regarded
in the computation of time.

Columbia T. Co. v. Haywood, 10 Wend. 422,
Cornell v. Moulton, 3 Den. 12.

As to the computation of time, see
Code of Civil Procedure, § 788.

3, Where Service to be made.

The service must be made in the county in which the sum-

mons was issued, and is returnable. Ifthe jurisdiction of
14
210 SERVICE OF SUMMONS.

the justice is limited to the limits of the city or village in
which he resides, service of the summons must be made in
that city or village. The jurisdiction of a local court must.
be exercised within the locality, and its process cannot be ex-
ecuted outside of it.

Geraty v. Reid, 78 N. Y. 67.

And the justice acquires no jurisdiction by the service of
a summons out of his territorial jurisdiction.

Geraty v. Reid, 78 N. Y. 67.

If the return does not show where the summons was served,
the legal presumption will be, that the service was made in
the proper county.

Potter v. Whittaker, 27 How. Pr. 10.
Gilbert v. Brown, 9 Neb. 90. 4

4. Manner of Service.

The provision as to the manner of service is the same as
that pertaining to the personal service of a summons in an
action in a court of record, and the cases cited on pages 8 to
18, ante, are, therefore, applicable thereto.

A copy summons must now be delivered to make the
service of the summons valid.

People v. Walters, 7 Civ. Pro. 408.

When the manner of serving process is not governed by
any statute, the service of process by delivering a copy, and
showing the defendant the original, is the recognized method.
of making service of it.

Smith ». Kerr, 1 How. N. S. 129,

As to service of the original summons, instead of the copy,

see
Pearce v. Nester, 20 N. Y. State R. 879.
JUSTICES’ COURTS. 211

§ 2879.

Service of Summons from Justices Courts upon a Cor-
poration.

Where the defendant to be served is a corporation,
the summons may be personally served upon it by
delivering a copy thereof to an officer or person to
whom a copy of the summons in an action, brought
against the corporation in the supreme court, might
be delivered as prescribed in sections 431 and 432 of
this act; or, to any director or trustee of the cor-
poration, by whatever official title he is called.

Based upon § 64 of the Code of Procedure. Service of
Summons on Managing agent of Foreign Corporation.

Shackelton v. Wainwright, 8 N. Y State R. 872.

Where a foreign corporation has an office in this State in
which a substantial portion of its business is transacted by a
person designated by itself as a general agent, although fol-
lowed by words, indicating his agency to be confined to some
one department, such agent is a managing agent, within the.
meaning of section 432 of the Code of Civil Procedure, and
service upon him is valid and binding upon the corporation.

Tuchband v. C.& A. R. R. Co., 115 N. Y. 487.

As to service of a summons, as prescribed in sections 431
and 482 of the Code, see ante, pages 27 to 43 and cases cited.

§ 2880.

Service of Summons from Justices’ Courts on Domestic
Railroad Corporation. .

Where the defendant to be served is a domestic
railroad corporation, and no officer thereof resides in
212 SERVICE OF SUMMONS.

the county to whom a copy of the summons may be
delivered, as prescribed in the last section, it may be
personally served, by delivering a copy thereof to a
local superintendent of repairs, freight agent, agent
to sell tickets, or station keeper of the corporation,
residing in the county; unless, at least thirty days
before it was issued, the corporation had filed, in
the office of the clerk of the county, a written instru-
ment, designating a person residing in the county,
upon whom process to be issued by a justice of the
peace against it, may be served; in which case, the
summons may be personally served by delivering a
copy to the person so designated.

Laws of 1854, chap. 282, §§ 14 and 15.

Where a designation has been made and been revoked, or
if the person designated is dead, or has ceased to reside within
the county, or cannot after due diligence be found, then ser-
vice of the summons may be made, as if the designation had
not been made.

Code of Civil Procedure, § 2882.

Personal service upon the managing agent of a railway cor-
poration, is personal service upon the corporation, and if the
constable’s return shows such a service, jurisdiction is estab-

lished.
N. Y. & E. R. R. Co. v. Purdy, 18 Barb. 574.

§ 2881.

Service of Summons from Justices’ Courts on an
Express Company.
Where the defendant to be served is a corpora-
tion, association, partnership, or person doing busi-
ness in the State as an express company, and no
JUSTICES’ COURTS. 213

person resides in the county to whom a copy of the
summons may be delivered, as prescribed in the fore-
going sections of this article, it may be personally
served by delivering a copy thereof to any local or
general agent, agent to receive freight or parcels,
route agent, or messenger of the defendant, residing
in the county; unless, at least thirty days before it
was issued, the defendant had filed, in the office of
the clerk of the county, a written instrument, desig-
nating a person residing in the county, upon whom
process to be issued by a justice of the peace against
the defendant, may be served; in which case, the
summons may be personally served by delivering a
copy thereof to the person so designated.

Laws of 1864, chap. 411, §§ 1 and 2.

Where a designation has been made, and has been revoked,
or, if the person designated is dead, or has ceased to reside
within the county, or cannot after due diligence be found
within the county, then service of the summons may be made,
as if the designation had not been made.

Code of Civil Procedure, § 2882,

§ 2910.

Service of Summons and Warrant of Attachment upon
Defendant; Justice’s Court.

The constable must, immediately after making the
inventory, and at least six days before the return
day of the summons, serve the summons, together
with the warrant of attachment and inventory, upon
the defendant, by delivering to him personally a
copy of each, if he can, with reasonable diligence,
214 SRRVICE OF SUMMONS, ETC.

be found within the county; or, if he cannot be so
found, by leaving a copy of each, certified by the
constable, at the last place of residence of the
defendant in the county, with a person of suitable
age and discretion; or, if such a person cannot be
found there, by posting it on the outer door, and
also depositing another copy in the nearest post-
office, inclosed in a sealed postpaid wrapper, directed
to the defendant at his residence; or, if the defend-
ant has no place of residence in the county, by
delivering it to the person in whose possession the
property attached is found.

2K. 8. 231, § 31, amended.

A strict compliance with the provisions of this section is
required.
Egbert v. Watson, 21 How. Pr. 429.
Marshall v. Canty, 14 Abb. 237.
Watts v. Willett, 2 Hilt. 212.
Barnes v. Harris, 4 N. Y. 374.

A return of copy served at defendant’s last place of res-
idence, should state its name specifically, or, at least, that it
was in the county.

Egbert v. Watson, 21 How. Pr. 429.

The return must also state, whether such copy was, or was
not, personally served upon the defendant.

Egbert v. Watson, 21 How. Pr. 429.
Marshall v. Canty, 14 Abb. 237.

An attachment against a non-resident cannot be served by
leaving a copy at the defendant’s last place of residence; the
copy must be served on the person in whose possession the
goods are found.

Stone v. Miller, 62 Barb. 4380.
Snell v. Thorp, 16 N. Y. State R. 83.
JUSTICES’ COURTS. 915

§ 2885.

Return of Summons.

A constable who serves a summons, must, at or
before the time when the same is returnable, make
and deliver to the justice a written return thereof,
under his hand, stating the time when, and the man-
ner in which, he served it. A constable who fails
seasonably to serve a summons, delivered to him for
service, must make a written return thereof, under
his hand, stating that it was not served, and the
reason why he failed to serve it.

2 BR. S. 228, § 16.

The statute requires, that the return should be in writing
under the hand of the constable. But the return is sufficient,
if indorsed by the justice at the request of the constable, in

his presence.
Reno v. Pinder, 20 N. Y. 298.

The Revised Statutes required the return to be made upon
the summons; the present Statute does not.

See Jackson v. Sherwood, 50 Barb. 356.

The return of the constable must state the time and man-
ner of service of the summons.

Stewart v. Smith, 17 Wend. 517.
Wheeler v. Lampman, 14 Johns. 481.
Legg v. Stillman, 2 Cow. 418.

A statement, that the summons was personally served, is
sufficient as to the manner of service.

Van Kirk v. Wilds, 11 Barb. 520.
Reno v. Pinder, 20 N. Y. 298.
Potter v. Whittaker, 27 How. Pr. 10.
Legg v. Stillman, 2 Cow. 418.
216 SERVICE OF SUBPGNA.

Where defendant is a corporation, the return should show
how the service was made, that the justice may determine,
whether it was upon the proper officer.

Sherwood v. 8S. & W. R. R. Co., 15 Barb. 650.

Where a railroad corporation or express company has
designated a person residing in the county upon whom pro-
cess issued out of a justice’s court against the corporation or
company, may be served, and such person has since died, or
has ceased to reside within the county, or cannot after due
diligence be found within the county, the return of a con-
stable to a summons against the corporation or company
should show this fact, either as a reason why the summons
was served upon some person, other than the one designated,
if any service is made, or as a reason for omitting service, and
as the ground for issuing a second or third summons, after
the return of the original not served.

Code of Civil Procedure, § 2882.

As to the return to a warrant of attachment, see

Code of Civil Procedure, § 2915.

Also, as to the return to the summons and requisition, see

Code of Civil Procedure, § 2923.

Further decisions relating to the return of a summons may

be found in
3 Wait’s L. & P. 133-138,
Bliss’ Code, § 2885.

§ 2970.
Service of Subpwna from Justice’s Court.

A subpoena may be served by a constable, or by
any other person. It must be served by reading it,
JUSTICES’ COURTS. 217

or stating its contents, to the witness, and by paying
and tendering to him his lawful fee for one day’s
attendance as a witness. Where it is served by a
constable, his return thereto, stating the manner of
service and the sum paid, is presumptive evidence
of the facts therein stated.

2B. S. 240, § 82.

A subpeena must be served on the witness a reasonable
time before the trial, or he will not be liable to an attachment
for non-attendance.

Hammond v. Stewart, 1 Strange, 510.
Chalmers v. Melville, 1 E. D. Smith, 502.

A reasonable time for travel should be allowed the witness,
and he may avail himself of the ordinary modes of convey-

ance.
Wilkie v. Chadwick, 13 Wend. 49.

The subpcena must be served within the county where
issued, or an adjoining county.

Code of Civil Procedure, § 2969.

The service in each case must be personal. Service upon
the husband for the wife is not a good service.

Goodwin v. West Cro. Car. 522.

Where the service of a subpcena is commenced, either by
reading, or by stating its contents to a witness, he cannot
evade such service by running off, so as not to hear it.

3 Waits’ L. & Pr. 664.

Where a party is subpcenaed, witness’ fees must be paid
the same as to any other witness.

Anderson v. Johnson, 1 Sandf. 718.
Hewlett v. Brown, 7 Abb. 74.
‘218 SERVICE OF NOTICE OF APPEAL.

No person can be compelled to attend, or to be sworn as a
witness, until his fees are paid or tendered, although he may
be actually present in court at the trial, and may be the op-

posite party.
Hurd v. Swan, 4 Den. 75.
Bowles v. Johnson, 1 W. BI. 36,
Hewlett v. Brown, 1 Bosw. 655; S. C. 7 Abb. 74.

§ 3047.
Service of Notice of Appeal upon Justice.

Service of the notice of appeal upon the justice
must be made by delivering it to him personally, or
to his clerk, appointed pursuant to law; but if the
justice is dead, or if neither he, nor his clerk can,
after reasonable diligence, be found within the
county, service of the notice upon the justice may
be made by delivering it to the clerk of the appellate
court. Unless the justice is dead, the appellant
must, at the time of serving the notice, pay to the
person to whom it is delivered, the costs of the ac-
tion, included in the judgment, and the sum of two
dollars, as the fee of the justice for making the re-

turn,
Code of Procedure, part of §§ 354, 359.

§ 3048.

Service of Notice of Appeal from Justice’s Court upon
Respondent, ete.

Service of the notice of appeal upon the respond-
ent may be made by delivering it, in any part of the
State, to the respondent personally, or in one of
the following methods :
JUSTICES’ COURTS. 219

1. If the respondent is a resident of the county,
by leaving it at his residence, with a person of suit-
able age and discretion. If he is not a resident of
the county, and the person who appeared as his at-
torney upon the trial is a resident thereof, it may
be served upon the attorney, either personally or by
leaving it at his residence, with a person of suitable
age and discretion.

2. If service within the county cannot be made,
with due diligence, upon the respondent personally,
or in the method, prescribed in the foregoing sub-
division, the notice of appeal may be served upon
him by delivering it to the clerk of the appellate

court.
Code of Procedure, part of § 354,

The notice of appeal is properly served on the respondent,
personally, in any county of the State.

Daniels v. Rogers, 36 How. Pr. 230.
See Lake v. Kels, 11 Abb. N.S. 37.

Service of a notice of appeal upon one of two respondents,
who are partners, is a good service.

Miller v. Perrine, 1 Hun. 620; §.C. 4T. C. 36.

But a service of notice on one member of the board of.com-
missioners of excise of a county, is no service upon the board.

Metcalf v. Garlinghouse, 40 How. Pr. 51.

Service of a notice of appeal from a judgment, rendered in
a justice’s court, upon the attorney who appeared for the
respondent in the justice’s court, is of no avail if the respond-
ent is a resident of the county in which the judgment was

recovered.

Andrews v. Snyder, 6 Civ. Pro. 333.
Earll v. Chapman, 3 E. D. Smith, 216.
220 SERVICE OF NOTICE OF APPEAL.

But if the respondent cannot be found after diligent inquiry,
notice may then be served upon respondent’s attorney.

Loescher v. Nordmeyer, 13 How. Pr. 146; S.C. 3 Abb. 244.
Fuchs v. Pohlman, 2 Daly, 210.

Where the respondent is a resident of the county, it must
be shown, that due diligence has been used, and that the re-
spondent could not be found in the county, or a service upon
his attorney will be insufficient.

Duffy v. Morgan, 2 Sandf. 631.

But in order to effect a sufficient service of the notice, by
serving it upon the attorney of the respondent, he must be a
resident of the county.

Lake v. Kels, 11 Abb. N.S. 387..

Where the notice of appeal is served on the respondent’s
attorney, and is subsequently taken back to be served upon
another person, the first delivery is no service.

Earll vy. Chapman, 3 E. D. Smith, 216.

If the appellant desires a stay of execution, he must deliver
the written undertaking required by section 3050 of the Code
of Civil Procedure, to the justice or his clerk, and must also
serve, upon the respondent, with the notice of appeal, a copy
of such undertaking, with a notice of its delivery to the
justice, or his clerk, and if an execution has been issued, he
must also serve a copy of the undertaking, upon the officer
holding the execution.

Wells v, Dawson, 48 Hun, 509,

An admission of due service of a notice of appeal waives
the objection, that such notice was not served in time.

Struver v. Ohio Ins. Co., 9 Abb. 28.
SUMMARY OF MISCELLANEOUS SECTIONS, 221

SUMMARY OF MISCELLANEOUS SECTIONS.

Service of precept in proceedings relative to animals stray-
ing in highways.

Code of Civil Procedure, §§ 3088, 3089.

Service of complaint with summons, in action brought in
justice’s court of the city of Brooklyn.

Id., § 3126.

Section 438, relative to the service of a summons by publi-
cation, etc., is not applicable to the New York Marine Court.

Id., § 3160.

As to the time for personal service, of certain notices, in an
action brought in the New York Marine Court.

Id., § 3161.

Service of notices, copy of pleadings, etc., in such court.

Id., § 3162-3168.

Service of summons in the New York Marine Court, with-
out the city, or by publication.

Id., § 3170.
Service of summons and order of arrest, in that court, in
certain marine causes.

Id., § 8179.

Service of subpcena or warrant issued by the mayor’s court
of the City of Hudson, or the recorders’ courts of the cities of
Utica or Oswego.

Id., § 3201.
022 SUMMARY OF MISCELLANEOUS SECTIONS.

Service of summons, in an action brought in the city court
of Yonkers, may be served at any place within the county of
Westchester, but not elsewhere.

Id, § 3205.
APPENDIX TO FORMS.
FORMS.

I.

AFFIDAVIT OF PERSONAL SERVICE OF SUMMONS.

(§ 484.)
Title.

NIAGARA COUNTY, ss.:

J. K., being duly sworn, says, that he
is over 21 years of age ; that at the times and the places herein-
after named, he served the annexed summons (together with
the complaint therein mentioned, which is also hereto an-
nexed) on the following defendants in this action, viz: On A.
B., at the Village of Albion, N. Y., on the 1st day of March,
1889; On C. D.,at the Village of Holley, N. Y., on the 1st
day of March, 1889; On E. F., at the City of Buffalo, N. Y.,
on the 2nd day of March, 1889; by delivering a copy of the
same to each of such defendants personally, and leaving the
same with them. He further says, that he knew the persons
served as aforesaid, to be the persons mentioned and described
in said summons (and complaint) as defendants in this action.

Sworn to before me this, etc. J.K.

II.

AFFIDAVIT OF PERSONAL SERVICE IN ACTIONS FOR
DIVORCE.
(Rule 18, Sup. C’t.)

Title.
NIAGARA COUNTY, 88. :
J. K., being duly sworn, says, that he

is a clerk in the office of M. N., attorney for the plaintiff
15
226 SERVICE OF PAPERS.

above named, and that he is over 18 years of age; that on the
Ist day of May, 1888, at the Village of Albion, in the County
of Orleans, and State of New York, he served the within sum-
mons (and complaint) upon C. D., the defendant above
named, by delivering a copy thereof to him personally, and
leaving the same with him.

Deponent further says, that he knows the person so served,
to be the person mentioned and described in the summons
(and complaint) as the defendant therein from (state what
knowledge the deponent had of the person being served, being
the defendant, and how he acquired such knowledge).

Sworn to before me this, etc. J. K.

Ill.

AFFIDAVIT OF SERVICEON AN INFANT, UNDER FOURTEEN
YEARS OF AGE.

. (§426, Subd .1.)
Title.
NIAGARA COUNTY, ss.:

J. K., being duly sworn, says, that
he is a clerk in the office of M. N., attorney for the plaintiff
in the above entitled action, and that he is over 21 years of
age; that C. D., one of the defendants above named, is a
minor under fourteen years of age, and that G. H. is his father.
That on the 13th day of June, 1888, at the City of Buffalo,
N. Y., this deponent served the within summons (and com-
plaint) upon the said C. D., by delivering a copy thereof to him
personally, and leaving the saine with him, and by delivering
a copy thereof on the 15th day of June, 1888, at the Village
of Tonawanda, N. Y., to thesaid G. H., the father of said
defendant, personally, and leaving the same with him.

Deponent further says, that he knows the said C. D., so
served, to be the person mentioned and described in said
summons (and complaint) as the defendant therein, and the
said G. H. to be his father.

Sworn to before me this, etc. J. K.
FORMS. 227

IV.

AFFIDAVIT OF SERVICE ON A LUNATIC.

(§ 426, Subd. 2.)

Title.
NIAGARA COUNTY, 8s.:

J. K., being duly sworn, says, that he
is the attorney for the plaintiff in the above-entitled action,
and that he is over 21 years of age; that C. D., one of the
defendants above named, has been judicially declared to be
of unsound mind, and a committee has been duly appointed
for him; that G. H., L. M. and 8. T. are such committee.

That on the 20th dyy of May, 1888, atthe City of Buffalo,
N. Y., this deponent served the within summons (and com-
plaint) upon the said C. D., by delivering a copy thereof to
him personally, and leaving the same with him, and by deliver-
ing a copy thereof on the 20th day of May, 1888, at the City
of Buffalo, to said G. H., L. M. and S. T., said committee and
each of them personally, and leaving the same with them.

Deponent further says, that he knows the said C. D., so
served, to be the person mentioned and described in said sum-
mons, as the defendant therein, and that the said G. H., L.
M.and 5. T. are the committee appointed for him as aforesaid.

Sworn to before me this, etc. J.K.

V.

AFFIDAVIT OF SERVICE OF SUMMONS ON UNDER SHERIFF,
ETC., FOR SHERIFF.

(§ 426, Subd. 3.)
Title.
NIAGARA COUNTY, ss.:
J. K., being duly sworn, says, that
he is over 21 years of age ; that onthe 1st day of May, 1888,
228 SERVICE OF PAPERS.

at the city of Lockport, N. Y., he served the annexed (or
within) summons (and complaint) on M. N., sheriff of the
county of Niagara, the defendant therein named, by per-
sonally delivering to, and leaving with the said M. N., (or,
with A. B., defendant’s under-sheriff,—or, E. F., a deputy
sheriff,—or, with a clerk in the employment of said sheriff,—
or, with a person then in charge of the sheriff's office, at 284
Main street, in the City of Lockport, N. Y.—adding in either
case,—said office being the place for service of papers on
him,—or, no place having been designated by said sheriff by
a notice filed in the office of the clerk of Niagara county, for
the service of papers upon him,) a copy (or, copies) of said
summons (and complaint.) (Where the service is upon the
defendant personally, add this clause) Deponent further says,
that he knew the said M. N., served as aforesaid, to be the
person described in said summons (and complaint), as defend-
ant in the above-entitled action.
Sworn to before me this, etc. J. K.

VI.

APPLICATION FOR ORDER THAT SUMMONS May BE SERVED
on A NExtT FRIEND OF A LUNATIC.

(§ 427.)

Title.
To THE SUPREME CoURT, OF THE STATE OF NEw York.

The petition of A. B. respectfully shows :

I. That he is the attorney for C. D., the plaintiff in the
above-entitled action, brought iu the Supreme Court, of the
county of Niagara, against E. F. (here state briefly the nature
of the action or other proceeding.)

II. That your petitioner did, upon the Ist day of May, 1889,
FORMS. 229

at the city of Buffalo, N. Y., serve the said E. F., personally,
with a copy of the summons and complaint herein.

III. That the said E. F.is now an inmate of the State
Lunatic Asylum, located at the city of Buffalo, N. Y., and,
as your petitioner is informed and believes, is mentally inca-
pable adequately, to protect his own rights, but has not been
judicially declared incompetent to manage his affairs.

IV. That your petitioner believes it to be necessary for the
protection of said defendant in this action, that a summous be
delivered also, in behalf of said defendant, to some person, to
be designated by the court, for that purpose, and that the
service of the summons should not be deemed complete until
it has been so delivered. (State the reasons.)

Wherefore, your petitioner prays, that an order may be
made, designating some person, to whom a copy of the sum-
mons may also be delivered, in behalf of said defendant, and
that the service thereof shall not be deemed complete, until
it has been so delivered, and for such further, or other order
as may be just.

Dated, this lst day of May, 1888. A. B.

VII.

VERIFICATION OF THE PETITION.

(§ 427.)

County oF NIAGARA, 8s.

A. B., of the village of North Tona-
wanda, N. Y., being duly sworn, says, that he has read (or,
heard read) the foregoing petition, subscribed by him, and
knows the contents thereof ; and that the same is true to his
own knowledge, except as to the matters therein stated to be
230 SERVICE OF PAPERS.

alleged on information and belief, and as to those matters,
he believes it to be true.
Sworn to before me this, etc. A. B.

VIII.

ORDER THAT SERVICE BE MADE ON NEXT FRIEND OF
Inrant, Lunatic on HapiruAL DRUNKARD.

(§ 427.)

At a Special Term of the Supreme Court, held at the City
and County Hall, in the City of Buffalo, on the 5th day
of May, 1888.

Present, Hon. WILLIAM CARUTHERS, Justice Presiding.

Title.

It having appeared to the court, by the petition of A. B.,
attorney for the plaintiff herein, that the defendant E. F. is
an infant of the age of fourteen years, or upwards [or, the
court having, in its opinion, reasonable ground to believe that
the defendant E. F., by reason of habitual drunkenness, (or,
any other cause, stating it) is mentally incapable adequately
to protect his rights, although not judicially declared to be
incompetent to manage his affairs], and, upon filing the said
petition, annexed to a copy of the summons in the said
action, and upon the application of A. B., attorney for the
plaintiff.

Ordered, that a copy of the summons in this action be also
delivered personally to 8. T., in behalf of the said defendant,
E. F., aud left with the said S. T., and that service of the
summons upon said defendant shall not be deemed complete,
until it is so delivered to and left with 8. T. (and that a copy
FORMS. 231

of this order be also served upon the said 8. T., when such
delivery to him is made.)

IX.

AFFIDAVIT FOR ORDER FOR SERVICE, WHERE PERSON TO
WHOM SUMMONS IS DELIVERED HAS ADVERSE INTEREST,
ETC.

"(8 428.)
Title.

NIAGARA COUNTY, ss.

J. K., being duly sworn, says:

I. That he is the attorney for the plaintiff in the above
entitled action.

II. That C. D., one of the defendants above named, is an in-
fant under the age of fourteen years, (and has been judicially
declared to be of unsound mind and that M. N. has been duly
appointed a committee for said defendant).

III. That on the 1st day of May, 1888, at the City of
Buffalo, N. Y., this deponent served (here state what has been
done as to service of process on the infant and his father, ete.,
or the lunatic and his committee.)

IV. That this deponent believes, that the interest of M. N.
is adverse to that of said C. D. (or, that said M. N. is not, for
the reason (stating it), a fit person to protect the rights of
said C. D., and that it is necessary, for the protection of said
defendant in this action, that a summons be also delivered in
behalf of said defendant, to some person to be designated by
the court for that purpose, and the service of the summons
should not be deemed complete until it has been so delivered.

V. That no previous application for an order for any such
service has been made herein, to the best of deponent’s know]l-
edge, information and belief.

Sworn to before me, this, etc. J. K,
232 SERVICE OF PAPERS,

Res

ORDER FOR SERVICE, WHERE PERSON TO WHOM SUM-
MONS IS DELIVERED HAS ADVERSE INTEREST, ETC.

(§ 428).

At a Special Term, ete. (as in form No. 8.)

Title.

On reading and filing the affidavit of J. K., annexed to a
copy of the summons in the above-entitled action, and the
court having, in its opinion, reasonable ground to believe, that
the interest of M. N., the person (07, committee, etc.) to whom
a copy of the summons was delivered, to complete the service
upon the defendant C. D. in said action, it appearing that
C. D. is an infant under the age of fourteen years [or, that
C. D. is a person judicially declared to be incompetent to
manage his affairs in consequence of lunacy Cdiocy or habit-
ual drunkenness) ] is adverse to that of said C. D. [or, that
said M. N. is not, for the reason (state it), a fit person for the
protection of the rights of said defendant in this action], and
on motion of J. K., attorney for the plaintiff herein.

Ordered, that a copy of the summons in this action be also
delivered personally to O. P., in behalf of the said defendant
C. D., and left with the said O. P., and that service of the
summons upon said defendant shall not be deemed complete,
until it is so delivered to, and left with O. P. (and thata
copy of this order be also served upon the said O. P., when
such delivery to him is made.)

And it is hereby further ordered that L. M. be, and he
is appointed special guardian ad litem of the said defendant,
C. D., to conduct his defence, to the exclusion of the said
committee, and with the same powers and subject to the same
liabilities, as a committee of the property of C. D.
FORMS. 233

XI.

AFFIDAVIT FOR ORDER DISPENSING WITH SERVICE UPon
A LUNATIC.

C§ 429.)

Title.

NIAGARA COUNTY, ss.

J. K., being duly sworn, says:

I. That he is the attorney for the plaintiff in the above-
entitled action.

II. That the defendant, C. D., has been duly declared a
lunatic, and judicially declared to be incompetent to manage
his affairs in consequence of such lunacy, and that E. F. was
duly appointed as the committee of the said C. D. by the
Supreme Court in the county of Niagara and State aforesaid,
on the 18th October, 1888.

Sworn to before me this, etc. J. K.
XII.
SAME.
(§ 429.)
Title.

NIAGARA COUNTY, 8s.

A. B. and E. F., each being duly sworn, say :

I. That they are practising physicians, and reside in the
city of Buffalo, N. Y.

II. That they are well acquainted with C. D., a lunatic,
who is a defendant in the above-entitled action, and with the
mental condition of such lunatic, and that, in the opinion of
these deponents, a delivery of a copy of the summons herein
to said C.D. would tend to aggravate his disorder (or, to les-
sen the probabilities of his recovery.)

III. That the grounds of deponents’ opinion and belief are
as follows: (Here set out reasons.) A.B.

Sworn to before me this, etc. E. F.
234 SERVICE OF PAPERS,

XII.

‘ORDER DISPENSING WITH SERVICE oF SuMMoNS UFON
LUNATIC.

C§ 429.)
At a Special Term, etc. (as in Form No. 8.)

‘Title.

It having appeared satisfactorily to the court, by the affi-
davits of A. B. and E. F., dated the first day of January,
1889, that the personal delivery of a copy of the summons in
this action, to the defendant, C. D., who has been judicially
‘declared to be incompetent to manage his affairs in conse-
quence of lunacy, will tend to aggravate his disorder (or, to
lessen the probability of his recovery).

Now on the application of J. K., attorney for the plaintiff
herein, ;

Ordered, that the delivery of a copy of the summons, in this
‘action, to the said C. D. be, and the same is hereby dispensed
with, and that the delivery of a copy of the said summons to
M.N., the committee of said lunatic, be a sufficient personal
‘service upon the said C. D.

XIV.

DESIGNATION OF PERSON Upon WHom A Summons May
BE SERVED, FOR AN ABSENTEE.

(§ 480.)

J, A. B., a resident of the village of North Tonawanda,
county of Niagara, and State of New York, being of full age,
and, by occupation, a dry-goods merchant, being about to de-
part from the United States, and to remain absent therefrom
for the period of five years, do hereby, pursuant to the pro-
FORMS. 935

visions of section 480 of the Code of Civil Procedure, desig-
nate C. D., an attorney and counsellor at law, and a resident
of the village of North Tonawanda, in the county of Niagara,
and State of New York, as a person upon whom a summons,
or any process, or other paper, for the commencement of a
civil special proceeding in any court, or before any officer,
may be served in like manner, and with like effect, as if it
were served personally upon me, during the said period of five
years from the date of this instrument.

In witness whereof, I have hereunto set my hand and seal,
the 1st day of October, 1888. A. B.

Signed and sealed in presence of G. H.

State of New York

County of Niagara, { **

On this Ist, day of October, 1888, in the year one thousand
eight hundred and eighty-eight, before me, the subscriber,
personally came A. B., to me personally known to be the same
person described in, and who executed the within instrument,
and acknowledged that he executed the same, for the purpose,

therein mentioned.
S. W., Notary Public.

I. C. D., a resident of the village of North Tonawanda,
‘County of Niagara, and State of New York, by profession an
attorney and counselor-at-law, as stated in the foregoing instru-
ment, hereby pursuant to the provisions of section 480 of the
Code of Civil Procedure, consent to the above (or, within)
designation, and appointment of myself as a person upon
whom a summons, or any process or other paper for the com-
mencement of a civil special proceeding, in any court or before
any officer, may be served with like effect, as if it were served
personally upon said A. B., during the said period of five
years of his absence from the United States. Witness my
hand and seal, this Ist day of October, 1888. C. D.

(Acknowledged as above.)
236 SERVICE OF PAPERS,

XV.

REVOCATION OF DESIGNATION OF PERSON TO RECEIVE SER-
VICE OF SUMMONS, ETC., FOR AN ABSENTEE.

(§ 480.)

I, A. B., a resident of the village of North Tonawanda,
County of Niagara, and State of New York, being of full age,
and by occupation a dry goods merchant, do hereby, pursuant
to the provisions of section 430 of the Code of Civil Proced-
ure, revoke the designation and appointment made by me, of
C. D., an attorney and counselor-at-law, and a resident of
the village of North Tonawanda, in the County of Niagara,
and State of New York, as a person upon whom a summons,
or any process, or other paper, for the commencement of a
civil special proceeding, in any court, or before any officer,
may be served, in like manner, and with like effect, as if it
were served personally upon me, during the period of five
years from the date of this instrument,—the period of my
absence from the United States; which said designation is
dated the 1st day of October, 1858, and was filed and recorded
in the office of the clerk of the County of Niagara, on the Ist
day of October, 1888.

In witness whereof, I have hereunto set my hand and seal,
this 23rd day of March, 1889. A. B.
Signed and sealed in
presence of G. H.

(Acknowledgment as in form No. 14.)

I, C. D., a resident of the village of North Tonawanda,
County of Niagara, and State of New York, by profession, an
attorney and counselor-at-law, as stated in the foregoing in-
strument, do hereby, pursuant to the provisions of section 430
of the Code of Civil Procedure, revoke the consent executed
by me, to my designation, and appointment, by A. B., of the
village of North Tonawanda, County of Niagara, and State of
New York, by occupation a dry goods merchant, as a person
FORMS. 237

upon a summons, or any process, or other paper, for the com-
mencement of a civil special proceeding, in any court, or before
any officer, may be served with like effect, as if it were served
personally upon said A. B., during the period of five years
from the date of this instrument—the period of his absence
from the United States ; which consent is dated the Ist day
of October, 1888, and was filed and recorded in the office of
the clerk of the County of Niagara, on the 1st day of October,
1888.

In witness whereof, etc., (as in the above form).
Signed, sealed and delivered, C. D.
in presence of G. H.
(Acknowledgment as in the above form.)

XVI.
AFFIDAVIT OF SERVICE OF SUMMONS ON A CORPORATION.

(§§ 481, 432, Subd. 1.)

Title.
NiaGara COUNTY, s8.:

A. B., being duly sworn, says, that he is a clerk in the
office of plaintiff's attorney herein, and that he is over 18
years of age ; that on the 20th day of May, 1888, at the City
of Buffalo, N. Y., he served the annexed (or, within)
summons (and complaint,—or, notice of object of action,—
or, notice of no personal claim,—or, notice of judgment in case
of default) personally on the above named defendant, (here
name the corporation) by delivering a copy of the same to*
C.D., the president (secretary, managing agent, or mayor,
etc.,) of said corporation, and leaving the same with him, at
his office at 296 Main street, ‘u the City of Buffalo, N. Y.
He further says, that he knew the said C. D., served as afore-
said, to be, at that time, the president (or, secretary, managing
agent, mayor, etc.,) of the said defendant said corporation,
238 SERVICE OF PAPERS.

and knew the said corporation, so served, to be the corpora-
tion (bank or association) mentioned and described in the said
summons, as the (or, one of the) defendants in the above-
entitled action.

Sworn to before me this, ete. A. B.

XVII.

AFFIDAVIT OF SERVICE OF SUMMONS, ON A PERSON DEsIG-
NATED TO RECEIVE SAME, BY A FoREIGN CORPORATION.

(§ 432, Subd. 2.)

(As in the preceding form to the *, continuing as follows;)
C. D., the person designated by said corporation, pursuant to
law, on whom a summons may be served, and leaving the
same with him at his office at 296 Main street, in the City of
Buffalo, N. Y.

He further says, that he knew the said C. D., served as.
aforesaid, to be the person designated by said defendant, said
corporation, and knew the said corporation so served, to be
the corporation (bank or association, etc.,) mentioned and
described in the said summons, as the defendant (07, one of
the defendants) in the above-entitled action.

Sworn to before me this, etc. A. B.

XVIII.

DESIGNATION BY A FOREIGN CORPORATION, OF PERSON
UPON WHOM A SUMMONS MAY BE SERVED.

(§ 482, Subd. 2, and § 483.)

The (state the name of the foreign corporation), a foreign
corporation, duly created, organized and existing under and
FORMS. 239

by virtue of the laws of the State of Ohio, in the United States
of America, does hereby, pursuant to the provisions of section
482 of the Code of Civil Procedure, designate and appoint.
C. D., residing (or, having his office) at No. 284 Main street,
in the City of Buffalo, N. Y., as a person upon whom a sum-
mons, or any process for the commencement of any civil special
proceeding, in a court, or before any officer, may be served,
for said corporation, except a proceeding to punish for con-
tempt, and except where special provision for the service th ere,
of is otherwise made by law.

In witness whereof, the said (state name of corporation)
has caused its (president, etc.) to affix his signature, and its
corporate seal, on the Ist day of August, 1888.

CL. 8.) A. B., President.

(Vice President, or other acting head of corporation,.
naming him.)

Signed and sealed in presence of E. F.

I, C. D., residing at No. 284. Main street, in the City of
Buffalo, N. Y., and named in the foregoing instrument, do
hereby consent, pursuant to the provisions of section 480 of the
Code of Civil Procedure, to the above (or, within) desig-
nation and appointment of myself,as a person upon whom a sum-
mons, or any process, or other paper, for the commencement
of any civil special proceeding in a court or before an officer,
may be served, for the (insert name of corporation) a foreign
corporation, organized under the laws of the State of Ohio, in
the United States of America, except that such service cannot
be made in a proceeding to punish for a contempt, and except
where special provision for the service thereof is otherwise
made by law.

In witness whereof, I have hereunto set my hand and
seal, this 1st day of August, 1888. Cc. D.

Signed, sealed and delivered in presence of E. F.
240 : SERVICE OF PAPERS.

XIX.

REVOCATION OF A FOREIGN CORPORATION’S DESIGNATION
OF A PERSON, ON WHOM A SUMMONS MAY BE SERVED.

(8§ 4838, 482, Subd. 2.)

The (state the name of the foreign corporation), a foreign
corporation, duly created, organized and existing under and
by virtue of the laws of the State of Ohio, in the United
States of America, does hereby, pursuant to section 432 of the
Code of Civil Procedure, revoke the designation and appoint-
ment made by it, of C. D., residing ( or, having an office) at
No. 284 Main street, in the City of Buffalo, N. Y., as a person
upon whom a summons, or any process, or other paper, for
the commencement of any civil special proceeding, 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, could be served, which said desig-
nation is dated the Ist day of August, 1888, and was filed in
the office of the Secretary of State, of the State of New York,
on the 5th day of August, 1888.

In witness whereof, etc., as in form No. 18.

I, C. D. residing (or, having an office) at No. 284 Main
street, in the City of Buffalo, N. Y., and named in the fore-
going instrument, do hereby, pursuant to law, revoke my
consent, dated the Ist day of August, 1888, to the designa-
tion and appointment of myself, as a person upon whom a
summons, or any process or other paper, for the commence-
ment of any civil special proceeding in a court, or before an
officer, except a proceeding to punish for contempt, and ex-
cept where special provision for the service thereof is othe:-
wise made by law, could be served for the Ginsert name of the
corporation, ) a foreign corporation, created and organized by
and under the laws of the State of Ohio, in the United States
of America, which instrument was led with my said consent,
in the office of the Secretary of State, of the State of New
York, on the 5th day of August, 1888.

In witness whereof, I have hereunto set my hand and seal,
this Ist day of February, 1889. Cc. D.

Signed, sealed and delivered in presence of E. F.
FORMS. 241

XX.

CHANGE OF OFFICE OR RESIDENCE BY PERSON DESIGNATED
BY FOREIGN CORPORATION, UPON WHOM SERVICE MAY
BE MApDE.

(§ 482, Subd. 2.)

{, C. D., the person designated and appointed by (give the
name of the corporation) a foreign corporation, created and
organized, by and under the laws of the State of Ohio, in the
United States of America, as a person upon whom a sum-
mons, or any process, or other paper for the commencement of a
civil special proceeding, 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,
may be served for said corporation, by an instrument executed
by said corporation, pursuant to law, dated the 1st day of
August, 1888, and filed in the office of the Secretary of State,
of the State of New York, on the 5th day of August, 1888,
do hereby certify, that my residence (or, office) has been
changed from the city of Buffalo, N. Y., to No. 59 State street,
in the city of Albany, N. Y.

In witness whereof, etc., (as in form No. 19).

 

XXI,.

CERTIFICATE BY SHERIFF OF PERSONAL SERVICE ON
DEFENDANT.

(§ 434.)
Title.

ERIE COUNTY, 8s. :

I hereby certify, that on the 10th day of August, 1888,
at the City of Buffalo, N. Y., I served on A. B., the defendant
(or, one of the defendants) above named, the within (or,
annexed) summons (and complaint) in this action, by deliver-
ing a copy of said summons (with a copy of said complaint)
to him, the said defendant, personally, and leaving the same
with him.

Dated this 12th day of sens 1888, M. N.
242 SERVICE OF PAPERS,

XXII.

CERTIFICATE BY SHERIFF OF PERSONAL SERVICE ON AN
INFANT UNDER FOURTEEN YEARS OF AGE.

(§ 426, Subd. 1.)

Title.
County oF ERIE, ss.

The undersigned, M. N., sheriff of the county of Erie, do
hereby certify, that on the 16th day of June, 1888, at the
city of Buffalo, N. Y., I served the annexed (or, within)
summons (and complaint) upon the above (or, within) named
defendant, A. B.,an infant under the age fourteen years. by
delivering a copy (07, copies) thereof to him personally, and
leaving the same with him, and, also, by delivering at the same
time and place like copies to G. H., the father (mother, or,
guardian) of said infant defendant, (or, to C. D., the person
having the care or control of said infant,—or, O. P., the person
with whom he resides, said infant having no father or
mother, or guardian within the State—or, 8. T., the person
in whose service said infant was then employed, personally,
and leaving the same with him.

Dated this 17th day of June, 1888. M.N.

XXII.

CERTIFICATE BY SHERIFF OF PERSONAL SERVICE UPON A
Lunatic, Ipriot, ok HaApiruaAL DRUNKARD, AND HIS
COMMITTEE.

(§ 426, Susp. 2.)

Title.

County OF ERIE, ss. :

The undersigned, M. N., sheriff of the county of Erie, do
hereby certify, that on the 16th day of June, 1888, at the
FORMS, 243

city of Buffalo, N. Y., I served the within (or, annexed)
summons (and complaint), upon the above (or, within)
named defendant, A. B., a person judicially declared to be
incompetent to manage his affairs, in consequence of lunacy,(or,
idiocy, or, habitual drunkenness), and for whom a committee
has been appointed, by delivering a copy (or, copies) thereof
to him personally, and leaving the same with him, and, also,
by delivering at the same time and place like copies to G. H.,
L. M. and 8. T., the committee of said lunatic personally, and
leaving the same with them. M.N.
ated this 17th day of June, 1888.

XXIV.

CERTIFICATE BY SHERIFF OF SERVICE ON SEVERAL DEFEN-
DANTS AT DIFFERENT TIMES.

($§ 426, Subd. 4, 434.)

Title.
County oF ERIE, ss.
Thereby certify, that at times and places hereinafter named,
I served the annexed (or, within) summons (and complaint),
upon the following defendants in this action, viz. on A.
B., at the city of Buffalo, N. Y., on the Ist day of May,
1888. On C. D., at the village of Tonawanda, N. Y., on the
Ist day of May, 1888, and on E. F., at the village of Albion,
N. Y., on the 2nd day of May, 1888, by delivering copies of
the same to each of them personally, and leaving the same
with them.
Dated the 5th day of May, 1888. M.N.,
Sheriff of Erie Co.
By S. W., Deputy.
244 SERVICE OF PAPERS.
XXYV.

CERTIFICATE BY SHERIFF OF SERVICE ON PERSON DEsIG-
NATED TO RECEIVE SERVICE FOR AN ABSENTEE.

($§ 430, 434.)

Title.
CouNTY OF ERIE, ss. :

I hereby certify, that on the 1st day of June, 1888, at the
city of Buffalo, N. Y., I served the annexed (or within) sum-
mons (and complaint) upon the above-named defendant, A.
B., by personally delivering a copy thereof to, and leaving the
same with C.D.,a person designated by the said A. B., by an
instrument in writing, executed, acknowledged and filed by
him, pursuant to law, with the written consent of C. D. an-
nexed thereto, executed and acknowledged by him, pursuant
to law, in the county of Erie, where the said A. B. resides.

Dated this 1st day of June, 1888. A.D,,

Sheriff of Erie Co.
By G. B., Deputy.

XXXVI.

CERTIFICATE BY SHERIFF OF SERVICE OF SuMMoNS Upon A
CORPORATION.

(S§ 481, 482.)
Title.
County or ERIE, ss. :

The undersigned, M. N., sheriff of the county of Erie, does
hereby certify, that on the 10th day of June, 1888, at the city
of Buffalo, N. Y.,he served the annexed (or, within) sum-
mons (and complaint, or other paper) on the above-named de-
fendant (here name the corporation), by delivering a copy
thereof to C. D., the president (secretary, managing agent or,
mayor, etc.) of said corporation personally, and leaving the
same with him, at his office, at 284 Main street, in said city.

Dated the 10th day of June, 1888. M.N.
FORMS. 245

XXVII.

CERTIFICATE BY SHERIFF OF SERVICE OF SUMMONS ON A
PERSON DESIGNATED BY A FOREIGN CORPORATION TO
RECEIVE THE SAME.

( § 432, Subd. 2.)
Title.
County oF ERIE, ss.

The undersigned, M. N., sheriff of the county of Erie, does
hereby certify, that on the 20th day of April, 1889, at the city
of Buffalo, N. Y., he served the annexed summons (and com-
plaint) personally on the above-named defendant (insert here
the name of the corporation), by delivering a copy of the same
to C. D., the person designated by said corporation, pursuant
to law, on whom a summons may be served, and leaving the
same with him.

Dated the 20th day of April, 1889. M.N.

XXIX.

CERTIFICATE OF SHERIFF WHEN PERSON SO DESIGNATED
CANNOT BE FOUND.

(§ 482, Subd. 2.)
Title.
County oF Enim, ss. :

I hereby certify, that on the 1st day of June, 1888, at the
city of Buffalo, I served the within summons (and complaint)
on the within defendant Chere insert name of corporation), a
foreign corporation, by delivering a copy of the same thereof
to C. D., the cashier (or, director, or managing agent) of the
said corporation, personally, and leaving the same with him.

I further certify, that, after diligent search and due inquiry,
made by me, no president, treasurer, secretary, or officer of
said corporation performing corresponding functions under
another name, could be found by me to be within the said
246 SERVICE OF PAPERS.

county (and that C. D., the person designated and appointed,
pursuant to law by said corporation upon whom the service
of said summons should be made, could not be found after due
inquiry and diligent search had been made by me, within said
county, for the purpose of finding him to make such service
upon him). M.N,,
Sheriff of Erie Co.
By O. P., Deputy.

XXX,

ADMISSION OF PERSONAL SERVICE.

(§ 484, Subd. 2.)
Title.

I hereby admit due and personal service of the within (or,
annexed) summons (and complaint—or, and notice of no
personal claim—or, and notice of judgment in case of default)
upon me (by delivering to, and leaving with me a copy
thereof), the 1st day of March 1889, at the village of North:
Tonawanda, in the County of Niagara, and State of New
York. A. B.

(Acknowledgment may be added, see form No. 7.)

(If not acknowledyed, add)

Signed and delivered in
presence of C. D.

XXXI.

AFFIDAVIT TO THE SIGNATURE OF ADMISSION OF SERVICE.
(§ 484, Subd. 2.)

NIAGARA COUNTY, ss. +

J. K., being duly sworn, says: That
on the Ist day of March, 1889, he saw A. B., to him per-
sonally known to be the person described in the annexed (or,
FORMS, 247

within) summons as a defendant, in the above action, sign
the above admission (and that he knows the said A. B. to be
an adult who has not been judicially declared to be incom-
petent to manage his affairs).

Sworn to before me, this, etc. J.K.

 

XXXII.

ADMISSION OF PERSONAL SERVICE AND CONSENT TO
IMMEDIATE JUDGMENT.

(S§§ 484, Subd. 2, 788.)
Title.

NIAGARA COUNTY, ss.
T hereby admit due and legal per-

sonal service of the within summons and complaint, and con-
sent that judgment be entered against me, for the amount
therein claimed forthwith, waiving the twenty days mentioned
in the summons, and waiving notice of the acceptance hereof.
Dated the 1st day of May 1888. A.B.
(To be acknowledged as in form No. 380, or signature to be
proved by affidavit as in form No. 31.)

XXXII.

AFFIDAVIT OF SERVICE ON A PRISONER.
(§§ 181, 132.

(As in form No. 1, with the insertion of the name, etc., of
only one defendant, adding as follows :)

That such service was made in the presence of the Sheriff
in charge of the County Jail, at the Village of Albion, in the
County of Orleans, and State of New York, said defendant
having been theretofore sentenced to said County Jail, by the
County Court of said County, on the 13th day of June, 1888.

Sworn to before me, this, etc. J.K.
248 SERVICE OF PAPERS.

XXXIV.

AFFIDAVIT OF FAILURE TO SERVE ANSWER OR DE-
MURRER, ETC.

($ 1212, Subd. 1.)
Title.

NIAGARA COUNTY, ss. :

A. B., being duly sworn, says, that
he is the attorney for the plaintiff in the above-entitled
action, and that he has not received any answer, or demurrer
to the complaint in said action, or a copy thereof, and that
defendant has not appeared otherwise than by the admission
and waiver indorsed upon the summons.

Sworn to before me, this, etc. A. B.

XXXV.

AFFIDAVIT TO PROCURE ORDER FOR SUBSTITUTED SER-
VICE OF A SUMMONS.

(§ 435.)
Title.

NIAGARA COUNTY, ss.:
A. B., being duly sworn, says:

I. That he is the (managing clerk in the office of C. D.)
attorney for the plaintiff above named, and was, at all the
times hereinafter mentioned, of full age (or, was, on the Ist
day of May last past, 18 years of age.)

If. That a summons (and notice) in the above-entitled
action, a copy of which is hereunto annexed, was received
from plaintiff's attorney (or, where affidavit ts made by the
attorney, say, was issued by deponent) on or about the 1st day
of May, 1889, for service upon the defendant, 8. T.

III. That the said 8. T. resides at No. 20 Main street, at
FORMS. 249

the City of Lockport, in the County of Niagara, in this State.
(or, state other facts showing that he has a residence as alleged.)

IV. That the deponent has made diligent and proper
efforts to serve the said summons upon the said S. T. (state
what efforts have been made) by continuously and repeatedly
endeavoring to find the said defendant, and by visiting the
various places which he was accustomed to frequent; that on
several occasions deponent called at the said defendant’s res-
idence, but was told by the persons in charge, that he was not
at home; that deponent could not ascertain when he would
be at home, though he made diligent inquiry.

V. [Where place of sojourn cannot be ascertained, add}
That the place of defendant’s sojourn cannot be ascertained,
although diligent inquiry has been made therefor by depon-
ent, of (state of whom, when, and where.)

VI. [Or where service is avoided ] That the said 8. T.
being within the State, avoids service of said summons, so that
personal service thereof upon him cannot be made; that de-
ponent, with the intention of making such service upon de-
fendant made the following efforts to find said defendant.
(here specify what efforts have been made as for instance)
That on the 5th day of May, 1889, deponent went to the
house of defendant’s father in Lockport, where she was sup-
posed to be, and was informed she was out shopping. That
at a later hour on the same day, he went to the same house,
and was informed by her father, that he could not see her, and
that all communications must be made through him.
That deponent called again the next day, and was informed
he could not see her. That deponent had made diligent
efforts to serve said summons, and has been unable to serve
her, and believes she is keeping herself concealed so that per-
sonal service cannot be made.

VII. That personal service of the summons upon the de-
fendant cannot be made, although proper and diligent effort,
for that purpose has been made.

VIII. That no previous application for an order for sub-
stituted service has been made herein [except, etc.]

Sworn to before me, this, etc. A.B.
950 SERVICE OF PAPERS..

XXXVI.

RETURN oF SHERIFF TO PROCURE SUBSTITUTED SERVICE.

(§ 435).

‘SERVICE.
Title.
NIAGARA COUNTY, ss.
M.N., Sheriff of the County of Niagara,
in the State of New York, hereby returns, (Continue as in the
preceding form from paragraph II.)

XXXVI.

ORDER FOR SUBSTITUTED SERVICE.

($ 435).

CIf made by Court, in place of name of the Oourt insert: Ata
Special Term, etc., asin form 8.)

Title.

It satisfactorily appearing by the affidavit of A. B., verified
(or, by the return of M. N., Sheriff of Niagara County, dated)
the 10th day of May, 1889, that the summons in this action,
a copy of which is hereunto aunexed, has been delivered (or,
issued) to the said A. B. (or, M. N.) to be served, and that
the defendant S. T., named therein, isa resident of Lockportin
said County of Niagara; that said A. B. (vr, M. N.) has made
proper and diligent effort to serve the sume personally upon
him, and that the place of his sojourn cannot be ascertained
(or, that such defendant avoids service), so that the same
cannot be pesonally served. Now on motion of C. D.,
attorney for the plaintiff herein,—

Ordered : That the service of the said summons be made
upon said defendant, 8. T., by leaving a copy thereof,
and of this order at the residence of the said defendant, in
FORMS. 951

the city of Lockport, with some person of proper age, if, upon
reasonable application, admittance can be obtained, and such
proper person found who will receive the same, and if admit-
tance cannot be obtained, nor any such proper person found
who will receive thesame, by affixing the same to the outer
or other door of said residence, and by depositing another
copy thereof, properly inclosed in a post-paid wrapper, ad-
dressed to said defendant, at his place of residence in the
post-office, in the city where he resides.

(Where delivery of a copy to a next friend of an infant or
insane person ts required, add,) It is further ordered that a
copy of the summons (and notice) in this action be also
delivered personally to G. H., in behalf of the said defend-
ant, 5S. T., and left withthe said G. H., and that service of the
summons upon said defendant shall not be deemed complete,
until it is so delivered to and left with G. H., (and that a copy
of this order be also served upon the said G. H., when such
delivery to him is made)

I. 5., County Judge,
Niagara County.

 

XXXVIII.
AFFIDAVIT OF SUBSTITUTED SERVICE.

(§ 487.)
Title.

NIAGARA COUNTY, ss. :

J. K., being duly sworn, says: That he is the (or, a clerk in
the office of C. D.) attorney for the plaintiff above named,
(and that he is over 18 vears of age); that on the 15th day
of May, 1889, he served the within summons (and notice) in
this action and the order thereon, of which a copy is hereto
annexed, upon 8. T., the defendant above named, as directed
by the said order,* by delivering a copy thereof to K. T.,
whom he knew to be the wife (or, child) of said defendant (or
other proper person), who appeared to be of proper age to
receive such service, to wit, over the age of 14 years, and
*
252 SERVICE OF PAPERS.

leaving the same with her (or, him), at the residence of said
defendant, S. T., at No. 20 Main street, in the city of Lock-
port, county of Niagara, in this State, said defendant, 8. T.,
as deponent is informed and believes, being then absent there-
from (07, concealed therein).

Cif admittance cannot be obtained, continue from the *) by
affixing a copy thereof to the outer (or state what other door)
of defendant’s residence, at No. 20 Main street, in the city of
Lockport, county of Niagara, in this State, deponent being
unable, upon reasonable application, of obtaining admittance
thereto, nor to find any proper person at such residence who
will receive the same. (What efforts to obtain admittance
may be stated.)

That on the 15th day of May, 1889, at the city of Lock-
port, aforesaid, deponent deposited another copy thereof, in the
post-office, properly inclosed in a post-paid wrapper, addressed
to said defendant, S. T., at his said place of residence.

Sworn to before me this, etc. J. K.

XXXIX.

AFFIDAVIT TO PROocURE ORDER FOR SERVICE BY PUBLI-
CATION AGAINST A FOREIGN CORPORATION.

(§ 488, Subd. 1.)
Title.

NIAGARA COUNTY, 8s.

A. B., being duly sworn, says :

I. That he is the plaintiff (or, attorney for, or, managing
clerk of the attorney for the plaintiff, or whatever other rela-
tion he bears to the cause) in the above-entitled action.

II. That the summons and the complaint, duly verified, in
this action, are hereunto annexed (or, were filed in the office
of the clerk of the county of Niagara (or, of this court) on the
30th day of April, 1889, (a copy of the same annexed
hereto.)

II. That a cause of action exists in plaintiff’s favor against
FORMS. 253

the defendant above named, the grounds of which are as fol-
lows. (State briefly the cause of action.)

IV. That the defendant, 8. T., is a foreign corporation,
created and organized under and by virtue of the laws of the
State of Ohio, having its place of business in the city of Cleve-
land, in that State. That no officer or agent of said defend-
ant upon whom service of summons can by law be made, nor
any other person authorized pursuant to law to receive such
service, can, after due diligence and inquiry, be found within
this State, although the deponent has made inquiry. (State
fully what measures have been taken, what diligence has been
exercised, and particularly what inquiries have been made, and
of whom, and the means of knowledge possessed by such persons
with relation to the practicability of a personal service on them
in this State.)

V. That-the president of said corporation (or, other officer,
naming him, with a view of serving him by mail) is L. M., who
resides at the city of Cleveland, in the State of Ohio.

VI. That the defendant has property within this State at
the city of Lockport, consisting of. (Specify the property.) 1

VII. That no previous application for an order for service
by publication and mailing, or service without the State, has
been made herein. A.B.

Sworn to before me this, etc.

XL.

AFFIDAVIT FOR ORDER OF PUBLICATION WHERE DEFEND-
ANT 1s A Non-RESIDENT.

(§ 488, Subd. 1.)
Title.
NIAGARA COUNTY, sg.
(As in the preceding form, through paragraph II.)
III. That the defendant is not a resident of this State,

See Bryan v. University Pub. Co., 112 N. Y. 382;S. C.
21 N. Y. State R., 21, rev’g 15 Civ.Pro. 74; 5. C.
15 N. Y. State R. 903.
254 SERVICE OF PAPERS.

but resides in the Village of Hudson, in the State of Michigan,.
as deponent is informed by G. H., who is the brother of said
defendant, and resides in the Town of Wheatfield, in the
County of Niagara, in this State, which information deponent.
believes to be true.

IV. That a summons directed to the defendant, was issued
to the sheriff of the County of Niagara, to be served, pursuant.
to law; that the said sheriff has used due diligence to find
the defendant within his county, in order to serve him, but
has been unable so to do. (Annex certificate) (or, in place of
paragraph 4 insert )

That the sources of deponent’s information is the affidavit.
annexed hereto, made by G. W., who was employed by depon-
ent to ascertain the residence of said defendant. (annexed
affidavit).

V. That said defendant cannot, after due diligence, be
found within this State, and that deponent is informed and
believes that said defendant is now at the place above stated.

VI. (insert paragraph IIL., form 43.)

VII. That the defendant has property within this State,
at the City of Lockport, consisting of (describe the property.)

VII. That no previous application (ete., as in form 39, at
the end.)

Sworn to before me this, etc. A. B.

XLI.
ANoTHER FormM,—Non-RESIDENCE ALLEGED POSITIVELY.

(§ 488, Subd. 1.)
Title.
NIAGARA COUNTY, ss:

(As in the form 8, through paragraph II.)
III. That the defendant, 8. T., is a resident of the village,
FORMS, 255

of Hudson, in the State of Michigan, and cannot, after due
diligence, be found within this State.

IV. That the summons herein was duly issued for service
on said defendants, but cannot be served personally upon them
within this State, by reason of such non-residence, as deponent:
verily believes. (state source of information.)

V. (Add paragraphs VI. and VII. of form 89.)
Sworn to before me this, etc. A. B.

XLII.

AFFIDAVIT FOR ORDER OF PUBLICATION AGAINST UN-
ENOWN DEFENDANT.

(§ 488, Subd 1.)
Title.
NriaGARA COUNTY ss:

(As in form 39, through paragraph TIT.)

IV. That certain persons whose names and residenceare un'
known to this plaintiff have an interest in (or lien upon) the
above mentioned premises arising [state nature of such interest
or, lien; (and are proper necessary) parties defendant in this
action (state how they are affected, etc.) ]

V. That deponent has made proper and diligent inquiries to
ascertain the names and residences of such persons, [2f un-
known owners, add having such interest in (or, lien upon,)
the aforesaid premises.] (state what inquiries have been made)
but that such names and residences cannot, upon diligent in-
quiry, be ascertained and that plaintiff has been unable, with
due diligence, to make personal service upon them.

VI. That no previous application (ete., as in form 39 at the:
end.)

Sworn to before me this, ete. A. B.
256 SERVICE OF PAPERS.

XLITI.

AFFIDAVIT FOR ORDER OF PUBLICATION WHERE REs-
IDENCE OF DEFENDANT IS UNKNOWN.

(§ 488 Subd, 1).
Title.
NIAGARA County, ss.: (As in form 39, through paragraph

II.)

II. That the said defendant is of. full age (or, is over the
age of fourteen. Jf an infant, state with whom he resides, ete.,)
as deponent is informed by, state the source of information)
and verily believes.

IV. That the residence of the defendant, S.T., remains un-
known to the plaintiff, nor can it, with diligent inquiry, be as-
certained by him.

That(state what measures have been taken and what act of
diligence have been used,and particularly what inquiries have been
made, and of whom, and the means of knowledge possessed by
such persons, in relation to the residence of the defendant, and
of the practicability of a personal service upon him.)

V. (Add paragraphs VI. and VIL, of form 89.)

Sworn to before me, this, etc. A.B.

XLIV.

AFFIDAVIT FOR ORDER OF PUBLICATION AGAINST A RxEsI-
DENT, WHO HAS DEPARTED FROM THE STATE.

(§ 488, Subd. 2.)
Title.
NIAGARA COUNTY, ss.: (As in form 89 through paragraph IL.)
Il. (Same as paragraph III. of preceding form.)
IV. That the defendant is a resident of this State, to wit,
FORMS. 257

of the City of Lockport, N. Y., but cannot, after due dili-
gence, be found within the State. That due diligence has
been made to effect its service. (State all the facts and eir-
cumstances of the attempted service, or annex or refer to return
of officer or affidavit of other person attempting to make service.)

V. That, as this deponent believes, the defendant has de-
parted from this State with intent to defraud his creditors, or
with intend to avoid the service of a summons, and the
grounds of his belief are as follows: (Set forth fully the facts
and cireumstances which form the ground of the belief in the
Fraudulent intent.)

VI. (Add paragraph VII. of form 39.)

Sworn to before me, this, etc. A. B.

XLV.

AFFIDAVIT FOR ORDER OF PUBLICATION AGAINST A RES-
IDENT, WHO 1s ABSENT OR CONCEALED.

($ 488, Subd. 2.)

(Same as preceding form, except in place of paragraph V.
insert as follows.)

That, as this deponent believes, the defendant keeps him-
self concealed within this State, at the City of Buffalo, N. Y.,
with intent to defraud his creditors, and that the grounds of
his belief are as follows: (State fully the facts and circwm-
stances which form the ground of the belief in the effort at con-
cealment and fraudulent intent.)

17
258 SERVICE OF PAPERS.

XLVI.
AFFIDAVIT OF RESIDENT’s ABSENCE.

(§ 438, Subd. 2.)
Title.

NIAGARA COUNTY, ss. ¢
J. S., of Lockport, in said county,
being duly sworn, says:

I. That he has a good cause of action against the above-
named defendant, for the amount due on a promissory note,
given by said defendant to said plaintiff, of fifty dollars and
interest, which said note was given to defendant for money
borrowed by defendant; also, upon an account for boots and
shoes, and repairing, together with orders paid to him, said
defendant, of fifty-six dollars, with interest thereon, which
said account has been duly sold, assigned and transferred to
plaintiff by the owners thereof, W. & B.

II. That a summons and a copy of a duly verified com-
plaint in this action, a copy of which is annexed hereunto,
has been issued to the sheriff of Niagara County, where the
said defendant resided, up to about the first of June last, as.
deponent is informed, and believes, and that the grounds of
deponent’s belief are as follows. (Stating ther.)

III. That said sheriff has made a diligent search for said
defendant, for the purpose of serving said summons and com-
plaint, and writes back to said deponent’s attorney, that said
defendant cannot be found; that he has left for California, so
that said summons and complaint cannot be personally
served, as appears by the said letter hereunto annexed; and
deponent verily believes the same to be true.

IV. That deponent cannot state at what particular place
in California said defendant proposes to remain, when he
arrives there, but he is now on his way, and a sufficient
length of time hag elapsed for him to be at or very near San
Francisco, which is as near as can be ascertained as to his
whereabouts.

V. (Add paragraph IIL. of form 43, and paragraph VIL. of
form 39.)

Sworn to before me, this, etc. J.S.
FORMS. 259

XLVII.

AFFIDAVIT OF ATTORNEY IN CORROBORATION OF PRE-
CEDING AFFIDAVIT.

(§ 488, subd. 2.)
Title.

NIAGARA COUNTY, ss.
H. T., of Brockport, being duly
SWorn, Says :

I. That he is the attorney for the plaintiff in the above-
entitled action.

II. That he caused a summons and complaint to be issued
in this action against the said defendant, on the sixteenth day
of June last, to the sheriff of the County of Niagara, where
the defendant resided up to the first day of June last.

Ill. That the said sheriff endeavored to have the said sum-
mons and complaint served, but could not for the reason
defendant had absconded, and left for California; that said
sheriff then wrote to deponent, that he was unable to serve
said summons and complaint, by reason of his having left his
county as aforesaid, as appears by the said letter hereunto
annexed.

IV. That deponent was then directed by said sheriff to go
to the late residence of the defendant, and ascertain what he
could relative to said defendant; that deponent did so, and
called upon the family of defendant, who where still there
(specifying who), and inquired of the wife for said defendant,
and that his said wife refused to give deponent any informa-
tion about him, only that he was not there, but had left, and
refused to give any information as to where he had gone.

V. That deponent then inquired of his immediate neigh-
bors; and one C. D., who resided near him, stated to deponent,
that defendant had gone to California, and had not returned.
That he was largely indebted to various persons, some of
whom (stating whom) were endeavoring to find him for the
purpose of serving process upon him, but were unable to do
so by reason of his departure; that defendant was a farmer
and occupied a farm, and carried it on, and had left his family
260 SERVICE OF PAPERS.

in possession thereof with crops upon it, with team and farm-
ing utensils, a large quantity of fire-wood, and other personal
property; that he had pretended to execute and deliver a bill
of sale of the same to his wife, and she claimed to hold said
property by virtue thereof; but that defendant still had some
interest in the said farm.

Sworn to before me, this, etc. AKT

XLVIII.
SHERIFF’S CERTIFICATE ANNEXED TO AFFIDAVIT.

(§ 488, Subd. 2.)
Title.
NIAGARA COUNTY, 8s. :

I do hereby certify that I have exer-
cised due diligence to find S. T., the defendant in this action,
within my county, in order to serve him with the summons
hereto annexed, and that from the best information that I can
obtain, I have ascertained that he is a non-resident of my
county, and that he has left the State, and now resides in

California, wherefore I return him not found.
Dated this 10th day of May 1889. ;
M. N., Sheriff.

XLIX.

AFFIDAVIT FOR ORDER OF PUBLICATION, ETC., AGAINST
ADULT RESIDENT, ABSENT FROM THE UNITED STATES.

(§ 438, Subd. 3.)

(As in form 89, through paragraph IT)

IiI. That the said defendant is of full age (or, is over the
age of fourteen, if an infant, state with whom he resides, ete.),
as deponent is informed by (state the source of information),
and verily believes.
FORMS. 261

=

IV. That the defendant is a resident of this State, and that
he resides in the village of North Tonawanda, in the County
of Niagara. (If stated upon information and belief, give the
sources and grounds of such information and belief.)

V. That, as deponent is informed and believes, said defend-
ant has been continuously without the United States, since
the Ist day of June, 1888 (more than six months next before the
granting of the order, and the making of the affidavit); that
the sources of deponent’s information, and the grounds of his
belief are (state fully the inquiries made, and the facts and
circumstances which form the ground of the belief.)

VI. That the said defendant 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 the Code of
Civil Procedure, as appears by the certificate of the clerk of
the County of Niagara, hereunto annexed. (Annez certificate.)

VII. That said defendant cannot, after due diligence, be
found within this State, and that deponent is informed and
believes, that said defendant is now at the city of London,
England. (State source of information, ete.)

VIII. That no previous application for an order for service
by publication and mailing, or without the State, has been
made herein.

Sworn to before me, this, etc. A. B.

L.

AFFIDAVIT WHERE ACTION IS FoR Divorce, SEPARATION,
ok TO ANNUL A MARRIAGE.

(§ 488, Subd. 4.)
Title.

NIAGARA COUNTY, 8s. :
A. B., being duly sworn, says,
I. That he (or, she) is the plaintiff in the above-entitled
action.
II. That this action is brought for a divorce (or, to obtain
262 SERVICE OF PAPERS.

a judgment annulling a marriage, or, to obtain a separation of
the parties under a marriage) in one of the cases prescribed
by law.

III. That a cause of action exists in her favor against the
defendaut above named, the grounds of which appear in the
duly verified complaint in this action, which is hereunto
annexed. (Here state the facts necessary to give the court
Jurisdiction of the case, except so far as such fact is shown in

the complaint.)
IV. Cnsert paragraph ILI. of form 42.)

V. That the defendant cannot be found within this State,
and the plaintiff has been unable, with due diligence, to make
a personal service of the summons upon him within the State.
(State fully the facts which support this allegation, and annez
affidavit, or certificate corroborative of these statements.

VI. CState place of defendant's residence, if known, as in
Jorm 51, paragraph V.)

VII. (As in preceeding form, paragraph VILL.)

Sworn to before me this, ete. A. B.

LI.

AFFIDAVIT TO OBTAIN ORDER FOR SERVICE BY PUBLICA-
TION, ETc., IN} AcTIoN RELATING TO SPECIFIC PRop-
ERTY.

(§ 488, Subd. 5.)

Title.

ORLEANS County, ss:

A. B., being duly sworn, says:

T. That he is (attorney for, or one of the attorneys for) the
plaintiff above named.

IJ. That this action is brought to foreclose a mortgage, made
on the Ist day of April, 1885, by the above-named defendant,
8. T., to this plaintiff, to secure his bond of even date, con-
ditioned for the payment of one thousand dollars, on certain
FORMS, | 963

real property in this State, consisting of one hundred acres,
situated in the town of Albion, and county of Orleans.

III. That the defendant, S. T., has, or claims to have, some
lien or interest in said real property which accrued subse-
quent to said mortgage; and that a part of the relief which
this plaintiff demands in this action is to exclude said defend-
ant from any lien or interest in said property, and that the
said defendant, 8. T., is, therefore, as he is advised, a proper
party to this action.

IV. (Add paragraph V. of preceding form.)

V. That, as deponent is informed and believes, said defend-
ant is now a resident of the city of Detroit, in the State of
Michigan. (State source of information, ete. ; if residence is
unknown, state that fact.)

VI. (Add paragraphs ILI. and VILL. of form 49.)

Sworn to before me this, etc. A.B.

LI.

AFFIDAVIT FOR ORDER OF PUBLICATION WHERE DEFEND-
ANT IS A RESIDENT OR DOMESTIC CORPORATION, ETC.,
To AVOID STATUTE oF LIMITATIONS.

( § 488, Subd. 6.)
Title.

ERIE County, ss:

(As in form 39, through paragraph ILL.) That on the Ist
day of April, 1889, this plaintiff made an attempt to com-
mence an action in this court against the defendant, pursuant
td the provisions of section 899 of the Code of Civil Proce-
dure, by issuing to the sheriff of the county of Niagara, a sum-
mons herein, a copy of which is hereunto annexed, with the
intent that the same should be actually served.

IV. That the said sheriff has not been able to make a per-
sonal service of the summons upon said defendant, as will
more fully appear by his return hereunto annexed. (Annez
return.)
264 SERVICE OF PAPERS.

V. That the cause of action set forth in the complaint
herein accrued on the Ist day of May, 1883, and that the limi-
tation of the time in which this action may be commenced, as
prescribed by chapter 4 of the Code of Civil Procedure, would
have expired within five days next previous to this applica-
tion, to wit, upon the 80th day of April, 1889 ; if the time had
not been extended by the attempt to commence the action
against the defendant. That plaintiff’s right to commence
this action will be defeated by said limitation, unless service
by publication and mailing is allowed.

VI. (Add paragraphs 111, IV. and VIIL. of form 49.)

Sworn to before me this, etc. A. B.

LIT.

AFFIDAVIT FOR ORDER OF SERVICE BY PUBLICATION ON
ABSENT PARENT, ETC., OF INFANT UNDER FOURTEEN}
oR ABSENT COMMITTEE OF A LUNATIC.

(§ 488, Last P.)
Title.

Erte County, ss -

(As in form 89, through paragraph IL)

Ill. That C. D., one of the defendants above named, is an
infant under the age of fourteen years (or, has been duly
declared a lunatic, and judicially declared to be incompetent
to manage his affairs in consequence of such lunacy), and
that E. F. is the father (or, mother, etc., as the case may be ;
or, that E. F. was duly appointed the general guardian ; or, as
the committee) of the said C. D. (by the county court of the
county of Niagara, of this State, on the 1st day of November,
1888).

IV. That the said C. D. resides at No. 20 Main street, at
the city of Lockport, in the county of Niagara, in this State,
and that his said father (mother, or guardian, or committee)
FORMS. 265

resides in the village of Hudson, and county of Lenawee, in
the State of Michigan. (if the parents are both dead, state
that fact.)

V. (State other facts and circumstances which would justify
service by publication in a case coming under any of the differ-
ent subdivisions of section 438, providing the guardian, ete.,
was the defendant. See forms 39 to 52.)

VI. (Add paragraph VIII of form 49.)

Sworn to before me, this, etc. A. Bz

LIV.

ORDER FOR SERVICE OF SUMMONS BY PUBLICATION WHERE
DEFENDANT Is A Non-RESIDENT OR FOREIGN CORPOR-
ATION.

(§§ 440, 488, Subd. 1.)

Title.

It appearing to the satisfaction of the court, by the annexed
affidavit, summons and verified complaint, that a sufficient
cause of action exists against the defendant, 8. T., in favor of
the above-named plaintiff, and upon (specify other papers
upon which application was made), * that the said defendant is
of full age [or, is an infant upwards of (or, under) fourteen
years of age], f and is a non-resident of the State [(where
defendant is a foreign corporation, say from *), that the
defendants are a foreign corporation created and organized
under and by virtue of the laws of the State of Ohio, having
its place of business in the city of Cleveland, in that State.]

Aud that the defendant has property within this State (or,
that the cause of action arose within this State), and that the
defendant (or, an officer of the defendant, or other person)
cannot, with due diligence, be found within this State, on
whom service of process can be made, according to law.

Now, on motion of 8. W., counsel for the said A. B.

Ordered, that the summons in this action, a copy of which
is hereunto annexed, be served upon the defendant S. T., by
publication of the same in two newspapers as follows: in the
266 SERVICE OF PAPERS.

(name of paper), published in the city of Lockport, N. Y.,
and in the (name of paper), published in the city of Albany,
N. Y., which are designated as most likely to give notice to
the said defendant, once in each week for six successive
weeks; or, at the option of the plaintiff, by service of said
summons, and a copy of said complaint, and of this’ order,
without the State, upon (an offiver of) said defendant (spe-
cified in section 482 of the Code of Civil Procedure.)

I further order, that, on or before the day of the first pub-
lication of the summons, the plaintiff deposit in the post-
office, at the city of Lockport, N. Y., a set of copies of the
said summons and complaint, and of this order, contained in
a securely closed postpaid wrapper, directed to the (president
of the) defendant, at the city of Cleveland, State of Ohio.
(or place where defendant resides.)

(Where service is to be made on a parent of an infant, or
committee of a lunatic, as required under section 438 last clause,
add.)

I further order, that a set of copies of said summons and
complaint, and of this order, ¢ be deposited, on or before the
day of the first publication, in the post-office, at the city of
Lockport, N. Y., contained in a securely closed postpaid
wrapper, directed to E. F., at (name place where father, ete.,
or committee, resides) [or from the above continue as follows:
be personally delivered to E. F., of (name place). and left
with him], in behalf of the defendant 8. T., and that the ser-
vice of the summons herein on the said §. T. shall not be
deemed complete until it is so delivered to and left with the
said E. F.

(Where deposit of the papers in the post-office is dispensed
with, add.)

And I, being satisfied by the affidavits upon which this
order is granted, that the plaintiff cannot, with reasonable
diligence, ascertain a place or places where the said defendant
woull probably receive matter transmitted through the post-
office, hereby dispense with the deposit of any papers therein.

Dated this 5th day of May, 1889.

W.C., Justice of the Supreme Court.
FORMS. 267

LV.

ORDER FOR SERVICE BY PUBLICATION, ETC., AGAINST AN
UNKNOWN DEFENDANT.

($$ 440, 488, Subd. 1.)

(As in form 54 to the *, continuing as follows: ) that there
are certain persons designated in the summons, as J. D. and
E. F., whose names and residences are unknown to plaintiff,
and cannot, with due diligence, be ascertained by him, in
order to make personal service of the summons on them
within this State.

Now, on motion of 8. E. W., attorney for plaintiff.

Ordered, (Conclude as in form 54.)

LVI.

ORDER FOR SERVICE OF SUMMONS BY PUBLICATION AGAINST
A RESIDENT, WHO HAS DEPARTED FROM THE STATE TO
DEFRAUD HIS CREDITORS, OR KEEPS HIMSELF CONCEALED
THEREIN.

C§§ 440, 488, Subd. 2.)

(As in form 54 to the }, continuing as follows) and that de-
fendant is a resident of this State, but that said defendant
cannot, after due diligence be found within this State, he
having departed therefrom (or, he keeping himself concealed
therein) with intent to defraud his creditors (or, with intent
to avoid the service of a summons, or both) and that the de-
fendant’s residence is at (name the place, or, is unknown and
cannot with due diligence be ascertained), and that plaintiff
will be unable with due diligence, to make personal service
of the summons on said defendant within this State.

Now on motion of 8. W., attorney for the plaintiff.

Ordered, (Conclude as in form 54.)
268 SERVICE OF PAPERS.

LVII.

ORDER FOR SERVICE OF SUMMONS BY PUBLICATION AGAINST
ADULT RESIDENT, ABSENT FROM THE UNITED STATES.

(S§ 440, 438, Subd. 3.)

(As in form 54 to the f continuing as follows.) That said
defendant is a resident of this State, aud resides in the vil-
lage of North Tonawanda, in the county of Niagara, and has
been continuously without the United States, since the first.
day of June, 1888, and more than six months next, before the
granting of this order, and that said defendant 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 the
Code of Civil Procedure, and that the plaintiff has been un-
able, after due diligence to make personal service of the sum-
mons upon him within this State, but that he is now at the
city of London, England.

Now on motion of A. B., attorney for said plaintiff,

Ordered, (Conclude as in form 54.)

LVII.

ORDER FOR SERVICE BY PUBLICATION IN ACTION FOR
DIVORCE, SEPARATION, ETC.

($$ 440, 438, Subd. 4.)

(As in form 54 to the continuing as follows.) And that this
action is brought for a divorce (or, for a separation, or, for a
judgment annulling the alleged marriage) in one of the cases
prescribed by law, and that the defendant cannot be found
within this State, and that the plaintiff will be unable with due
diligence to make a personal service of the summons upon him
therein.

Now on motion of 8. E. W., attorney for the plaintiff herein.

Ordered, (Conclude as inform 54.
FORMS. 269

LIX.

ORDER FOR SERVICE BY PUBLICATION IN ACTION RELATING
TO SPECIFIC PROPERTY.

(§§ 440, 488, Subd. 5.)
Title.

It appearing to the satisfaction of the Court, by the an-
nexed affidavit and summons, and by the annexed duly veri-
fied complaint demanding 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 ; and that a sufficient cause of action exists
against the defendant, S. T., in favor of the above-named plain-
tiff, and that such defendant is a proper (and necessary, party
to this action, and upon the (name other papers upon which
application was made), it appearing that the said defendant
cannot be found within the State, and that the plaintiff will
be unable with due diligence to make a personal service of the
summons upon him therein: and that said defendant is of full
age, [or, is an infant upwards of (or, under) fourteen years
of age].

Now on motion of 8. E. W., attorney for plaintiff.

Ordered, (conclude as in form 54.)

LX.

ORDER FOR SERVICE OF SUMMONS BY PUBLICATION WHERE
DEFENDANT Is A RESIDENT, OR DoMESTIC CORPORATION,
ETc., TO AVOID STATUTE OF LIMITATIONS.

($§ 440, 438, Subd. 6.)

(As in form 54 to the t continuing.) Andis a resident of the
Village of North Tonawanda, in the county of Niagara, in this
State, and that an attempt to commence this action against
270 SERVICE OF PAPERS.

the defendant, pursuant to chapter fourth of the Code of
Civil Procedure was made by the plaintiff on the Ist day of
April, 1889, and before the expiration of the limitation appli-
cable thereto, as filed in that chapter, and that the limitation
would have expired within sixty days next preceding the
making of this order, and the application therefor, if the time
lad not been extended by the attempt to commence the action,
and that the plaintiff will not be able, with due diligence, to
make personal service of the summons upon the defendant
within this State.

Now on motion of S. E. W., counsel for the plaintiff,

Ordered, (Conclude as in form 54.)

LXI.
AFFIDAVIT OF FILING BEFORE PUBLICATION OR SERVICE.

(S$ 442, 443.)

Title.
NIAGARA COUNTY, ss. :

A. B., being duly sworn, says :

I. That he is the (managing clerk to the) attorney for the
plaintiff above named.

II. That on the 15th day of May, 1889, he filed the sum-
mons and duly verified complaint in this action, (a copy of
which is hereunto annexed), and the order dated the 5th day
of May, 1889, allowing the service of the summons, upon the
defendant, 8. T., by publication, or by personal service without
the State, together with the affidavit of J. §., dated the Ist
day of May, 1889, and the certificate of A. W., dated the 4th
day of May, 1889, being all the papers upon which said order
was made, in the office of the clerk of the county of Niagara,
(or, clerk of this court).

Sworn to before me this, ete. A. B.
FORMS. 271

LXII.

NotIcE TO DEFENDANT TO BE SUBJOINED TO THE SUMMONS,,.
AS PUBLISHED.

(§ 442.)

To 8S. T.: The foregoing summons is served upon you, by
publication, pursuant to an order of Hon. W.C., a justice of
the supreme court of the State of New York, (or, county judge
of Niagara county) dated the 5th day of May, 1889, and
filed with the complaint in the office of the clerk of the
county of Niagara, (or, clerk of the superior court of Buffalo.)
at the court house, (or, county and city hall in the city of
Buffalo, New York,) in the city of Lockport, in this State.

(Where defendant is unknown in action for partition, add.)
The object of the action is to obtain a partition of property,
according to the respective rights of the persons interested.
therein; and, if it appears that a partition thereof cannot be
made, without great prejudice to the owners thereof, then for
a sale of the following described premises ( Give description.)

Dated the 16th day of May, 1889.
A. B.,

Plaintiff's Attorney.

LXII.

Notice TO BE SERVED WITH SUMMONS, WHEN PERSONAL
SERVICE IS MADE WITHOUT STATE,

($ 448.)

Same as preceding form, except that the words, “ without the
State of New York,” are to be substituted for the words, “by
publication.”
272 SERVICE OF PAPERS.

LXII.

AFFIDAVIT OF THE PUBLICATION OF THE SUMMONS AND
Notice.

(§ 444.)
Title.
NIAGARA COUNTY, ss. :

A. B., being duly sworn, says :

I. That he is the printer (or, publisher, or, foreman, or,
principal clerk of the printer) of the (name paper), a news-
paper published in the city of Lockport, in the county of
Niagara, and State of New York.

II. That the summons in this action and notice subjoined
thereto, copies whereof are hereto annexed, have been pub-
lished in said paper, once in each week, for six (or, seven)
successive weeks, the first publication thereof being on the
22d day of May, 1889, and the last upon the 8rd day of
July, 1889.

Sworn to before me this, ete. A. B.

LXUTI.

AFFIDAVIT OF MAILING SUMMONS, COMPLAINT AND ORDER.

(§ 444.)
Title.
NIAGARA COUNTY, ss. :

A. B., being duly sworn, says :

I. (As in form 39, paragraph 1.)

IJ. That on the 18th day of May, 1889, he deposited a set
of copies of the summons, complaint and order in this action
hereto annexed, in the post-office, at the city of Lockport, N. Y.,
contained in a securely closed post-paid wrapper, and directed
to the defendant, S. T., at (here name the place stated in the
order of publication.)

Sworn to before me this, ete. A.B.
FORMS. 273

LXIV.

AFFIDAVIT OF PERSONAL SERVICE WITHOUT THE STATE.

(§ 444.)

(Same as forms L, or I1., including the “ order,”’among the
papers served.)

LXV.

Noticr To DEFENDANT OF ENTRY OF FINAL JUDGMENT, IN
CASE OF SERVICE BY PUBLICATION.

(§ 445.)
Title.

Please take notice, that final judgment was entered against
you, in this action, in favor of the plaintiff, in the office of the
clerk of the county of Niagara, in the State of New York,
(or, the clerk of this court) on the lst day of August, 1889,
a copy whereof is hereto annexed, and that the judgment
roll thereupon was filed in said clerk’s office on that day.

Dated, the 2nd day of August, 1889.

ToS. T., A.B.

Plaintiff's Attorney.
Office or Post-office address.
Tonawanda, N. Y.

LXVI.

AFFIDAVIT OF PERSONAL SERVICE OF NOTICE OR OTHER
PAPER, ON PARTY, OR HIS ATTORNEY.

(§ 796.)
(Form I may be used.)
274 SERVICE OF PAPERS.

LXVII.

AFFIDAVIT OF SERVICE OF PAPER, OTHER THAN A PROCESS,
BY Mat.

(§ 797, subd. 1.)

Title.
ERIE COUNTY, ss. :

A. B., being duly sworn, says :

I. That he is the (managing clerk for the) attorney for the
plaintiff (or, defendant) G. H.,in this action, and (that said
attorney) resides in the city of Buffalo, N. Y.

Il. That on the Ist day of May, 1889, he served the an-
nexed notice, (or, other paper describing it) upon M. N.,
attorney, for the defendant (or, plaintiff) G. H., in this
action (or, upon the plaintiff—or, upon the defendant —
G. H.) by depositing a copy therof, properly inclosed in
a post-paid wrapper, in the post-office at the city of Buf-
falo, N. Y., the post-office of G. H., the plaintiff (or, defend-
ant—or, of A. B., the plaintiff's or defendant’s attorney)
before six (or, state time of posting) o’clock Pp. m. directed
to M.N. (or, G. H.) at (name address), that being the address
within the State designated by the said M. N., for that pur-
pose, upon the preceding papers in said action, [ (or, the place
of residence of G. H.—or, the place where the said G. H.
keeps an office,) according to the best information which can
conveniently be obtained concerning the same, (state sources
of information) said M. N., (or, G. H.) having made no
designation, upon the preceding papers in the action, of an
address within the State at which papers therein may be
served.] between which places there was then a regular
communication by mail.

Sworn to before me this, etc. A. B.
FORMS. 275

LXVIII.

AFFIDAVIT OF SERVICE Upon Attorney, Durine His

ABSENCE From His OFFICE, BY SERVING ON PARTNER,
ETC.

C§ T97, Subd. 2.)
Title.
ERIE CounNTY, ss.

I. (Same as paragraph I, preceding form.)

II. That on the 1st day of May, 1889, at the city of Buf-
falo, N. Y., he served the annexed notice (or recite other pa-
pers) on M.N. [the attorney for the plaintiff (or, defendant)
herein ]* by delivering a copy of the same, during his absence
from his office, to his partner, O. P. (or, to his clerk, S. W., ov,
to a person having charge of his office), at his office, at No.
282 Main street, in the city of Buffalo, N. Y., and leaving the
same with him.

Sworn to before me this, etc. A. B.

LXIX.

AFFIDAVIT OF SERVICE ON ATTORNEY BY LEAVING PAPER
IN ConsPiIcuous PLACE IN HIS OFFICE.

(§ 797, Subd. 8.)

(Same as preceding form to the *, continuing.) By leaving
a copy of the same, during his absence from his office, at No.
282 Main street, in the city of Buffalo, N. Y., in a conspicuous
place therein (state where placed), between six o’clock in the
morning and nine o’clock in the evening, there being no per-
son in charge thereof.

Sworn to before me this, etc. A.B.
276 SERVICE OF PAPERS.

LXX.

AFFIDAVIT OF SERVICE ON ATTORNEY BY LEAVING PAPER
In His Orrice Lretrrer-Box.

(§ 797, Subd. 8.)

(As in form 68 to the *, continuing, as follows:) There
being no person in charge of his office (and his office being
closed), by depositing a copy of the same, between six o’clock
in the morning, and nine o’clock in the evening, enclosed in a
sealed wrapper, directed to said M.N., in his office letter-box,
on the door of his office, at No. 282 Main street, in the city of
Buffalo, N. Y.

Sworn to before me this, etc. A. B.

LXXI.

AFFIDAVIT OF SERVICE UPON AN ATTORNEY OR PARTY BY
Leavinc Parer at His RESIDENCE.

(§ 797, Subds. 3, 4.)

(As in form 68 to the *, continuing, as follows:) By leav-
ing a copy of the same [or, the office of the said M. N. not
being open, so as to admit of leaving the notice (or other pa-
per, describing it) therein, and there being no office letter-box,
by leaving a copy of the same—this clause to be used when
service is upon attorney], at the residence of the said M. N.
(or, G.H.), at No. 680 Main street, in the city of Buffalo, N.
Y., between six o’clock in the morning, and nine o’clock in the
evening, with a person of suitable age and discretion, namely,
the wife (or, daughter) of said M. N. (or, G. H.)

Sworn to before me this, ete. A.B.
FORMS. 277

LXXII.

AFFIDAVIT OF SERVICE ON CLERK FOR Non-RESIDENT
Party.

(§ 800.)

(As in form 68 to the *, continuing, as follows:) By deliv-
ering a copy of the same to the clerk of the county of Erie (or,
the clerk of the superior court of Buffalo), and leaving
the same with him. Deponent further says, that said plaint-
iff (or, defendant) has appeared in said action, and resides
without the State [or his residence cannot, with reasonable
diligence, be ascertained (state whnt efforts have been made,
ete., to find party) ], and that said party has not designated
an address within the State, upon the preceding papers in
said action.

Sworn to before me this, etc. A. B.

LXXIII.
AFFIDAVIT OF SERVICE ON SHERIFF OR CORONER.

(As in form 68 to the *, continuing, as follows :) Sheriff of
Erie county, by delivering a copy of the same, between the
hours of (six) o’clock in the morning and (nine) o’clock in
the evening, to O. P., under-sheriff (or, deputy-sheriff in
charge), at the office of said sheriff, in the county and city
hall, in the city of Buffalo, N. Y., and leaving the same with
him.

Sworn to before me this, etc, A. B.
278 SERVICE OF PAPERS.

LXXIV.

AFFIDAVIT OF SERVICE OF SUBPGNA.

C§ 852.)
Title.

ERIE County, ss.:

A. B., being duly sworn, says: That on the 10th day of
August, 1888, he personally served, at the city of Buffalo, N.
Y., the within subpcena upon C. D., the person named therein
as witness, by then and there exhibiting to the said C. D. the
said original subpeena, and delivering to him a copy thereof
(or, a subpeena-ticket containing its substance), and paying
(or, tendering) to the said C. D., at the time and place afore-
said, dollars, as his fees for travelling to, and returning
from, the place named in the said subpoena, and for one day’s
attendance as such witness.

Sworn to before me this, ete. A. B.

 

LXXV.

AFFIDAVIT OF SERVICE OF ORDER FOR EXAMINATION OF
Party. Etc., BEFORE TRIAL.

(§ 876.)
Title.

ORLEANS COUNTY, ss. +

J. K., being duly sworn, says: That on the 15th day of
June, 1889, at the village of Albion, in the county of Orleans,
and State of New York, he served personally a copy of the
order and affidavit which are hereto annexed, upon C. D., the
person therein named, by delivering a copy of said order and
affidavits to, and leaving the same with, the said C. D., and
paying (or, tendering) to the said C. D., his fees allowed by
law for travelling to, and returning from, the place where he
is required to attend, and for one day’s attendance as such
witness.

Sworn to before me this, etc. J.K.
279

INDEX.

ADMISSION OF SERVICE OF SUMMONS.
effect of, out of State, 16, 53
mode of service, 51
to be stated when, 51
written, imports what, 51
effect as to admission of service of copy, 51
sufficiency of admission, 51, 52
to be in writing and subscribed, 52
of due and personal service, 52
what objections obviated by, 52
time and place of service, 52
effect of admission not stating, 52
object of requirement of the statement of, 52
date of admission, as affecting, 52
admission of service as of prior date, 52
goes only to what, 53
of due service, waives what irregularity, 53
date in admission, not conclusive, 58
verification of signature to, 58, 54
effect of admission, if not made, 53
law and procedure under old code, 53, 54
defective proof, how cured, 54

AFFIDAVIT.

to obtain substituted service, 56
what facts must be shown by, 57
when affidavit held sufficient, 59
held insufficient, 60
form of, 61
and order to be filed, 62

to obtain order for publication, 70
230 INDEX,

AFFIDAVIT—Continued.
sufficiency of proof, 70
impeachment of, 70
what must be shown by, 70, 71
proof how made, 73
return of sheriff, 73
annexation of letters or papers referred to, ‘74
by whom made, 74.
title of, 74.
place of taking, 74.
allegations made upon information and belief, ‘75.
of non-residence, 75.
facts and circumstances to be stated, 75.
proof of residence, 75.
when to be made, 76.
fact of non-residence, evidence of what, 76.
effect of proof of non-residence only, 76.
proof of due diligence, 77
what proof to be made, 77
when proof held sufficient, 78.
when proof held insufficient, 81.
property within the State, 82.
proof that defendant has, to be stated, 82, 83.
avoiding service, 83.
when proof of, must be shown, 83.
proof of ‘‘evading”’ service, not sufficient, 83.
service of, with warrant, in contempt proceedings, 188.
in supplementary proceedings, 192.

AFFIDAVIT OF SERVICE.
of summons, 43, 44.
by whom made, 44
where clerk who made service had left the State, 44.
by attorney on information received from clerk, 44,
age, 44.
affiant must state he is over 21 years of age, 44,
effect of affidavit, if not so stated, 44.
allegation as to, to relate to what time, 45.
time, place and manner of service, 45.
service ‘‘ on or about a certain day,”’ 45.
when sufficient, date not specified, 45.
INDEX. 281

AFFIDAVIT OF SERVICE—Continued.
statement as to place of service, sufficient when, 45, 46.
when county mentioned, but state omitted, 46.
effect of, when statement as to place of service omitted, 46.
statement that copy was left with defendant, 46.
statement as to manner of service, 46.
in action for divorce, 46.
what affidavit must state, 46.
kind of proof, 47.
proof means legal proof, 47.
compliance with requirements of the law, 4'7.
omission of name of deponent from body of, 47.
disputing the service, 47.
affidavit conclusive when, and of what, 47, 48.
proof of service on conflicting affidavits, 48.
defective service how cured, 48.
by substitution, 62.
time, place, and manner of service to be stated, 63.
person serving to state what acts he performed, 63.
by publication, 109.
by whom made, 109.
how made, 109.
certificate of sheriff of another State, 110.
of paper, etc., (see SERVICE OF PAPERS), 154-156.
age of affiant to be stated in affidavit of service, 44.

ALTERNATIVE WRIT OF MANDAMUS.
service of, 172, 173.
service of notice of filing return to, 173.
service of demurrer, 173.

AMBASSADOR.
personal service of summons on, 23.

AMENDED PLEADING. (See PLEADING).

ANSWER.
defendant appearing by, 120.
subscribed by defendant’s attorney, 121.
service of, 123.
when to be served, 123.
where substituted service made, 123,
282 INDEX.

ANSWER— Continued.
when served by publication, etc., 123.
after expiration of twenty days, 124.
effect of order staying plaintiff’s proceedings, on time to, 124,
or together with order for bill of particulars, 124.
time to, by infant defendant, 124.
service of, when no complaint served or filed, 124.
when defendant arrested before answering, 125.
served by mail when, 125.
when summons specifies place where to be served, 125.
when defendant to serve, on co-defendant, 127.
not limited to actions of a purely equitable character, 128.
need be made only when, 128.
adjudication between co-defendants must be founded upon what,
128.
effect upon appeal, of failure to serve cross-answers, 129.
failure to, amended pleading, 129.
when defendant has 40 days to serve amended, 145,
(See PLEADING.)

APPEARANCE.
defect in service cured by voluntary, 16.
unless pleaded, 16.
unless to protest against jurisdiction, etc., 1%.

of witness, cures defective service of summons, 28.
effect of voluntary, 54.

voluntary general, equivalent to what, 54.
a general, confers jurisdiction over what, 54.
effect of defendants indorsing their names upon motion papers, etc., 55.
a formal notice of, necessary, 55.
what is a voluntary, by guardian ad litem, 55.
corporation may make voluntary, 55.
a general voluntary, waiver of what, 56.
cures what, 56.

demand for copy of complaint, may be in nature of, 117, 119.
by defendant, 120.
notice of, 120.
how made, 121.
service of notice of motion is not, 121.

of order extending time to answer, 122.
INDEX. 283

APPEARANCE—Continued.
when served sufficient, 122.
notice of, when complaint not served with summons, 123,

ARREST.

service of order, 161.

how made, 161.

provision as to, directory, 162.

what papers served with, 162.

effect of not serving copy of affidavit with, 162.
copy of undertaking with, 162.
copy of order with, 162.

on defendant’s attorney, 162.

when copies of paper served, defective, 162.

order of arrest to be subscribed by attorney, 163.

ATTACHMENT.
service by publication, when warrant of, granted, 99, 104.
of summons and warrant of, from Justice’s Court upon defend-
ant, 213, 214.

ATTORNEY.
service of notices, and other papers in action on, 130,
personal service of papers on, 180-133.
meaning of word, 131.
mode of service, 132.
time of service, 133.
service not personal, 133-156.
how made, 133.
by mail, 133.
at office, by leaving with partner, etc., 134.
by leaving in conspicuous place in office, 184, 141-144.
by depositing in his office letter-box, 134.
when service must be made on, 146.
when not required, 146, 147.
service on non-resident, 150.
how made, 150.
death or disability of, 150, 151.
how papers served after death, 151.
service of papers on appearing in Surrogate’s courts, 207.
(See SERVICE OF PAPERS.)
284 INDEX,

AVOIDING SERVICE.
when proof of, to be made, 83.

BAGGAGE MASTER.
on railroad, not managing agent of company, 30.

BOARD OF SUPERVISORS.
service of summons on, 18,

CASTLE GARDEN.
effect of service of summons on party at, 12.

CERTIFICATE OF SERVICE OF SUMMONS.
by sheriff, 48.
proof by affidavit, made by sheriff, 48.
made by sheriff of another state, 48.
proof, by whom made, 49.
certificate by under sheriff, 49.
to be in name of sheriff, 49.
by sheriff, when service was by under sheriff who has died, 49.
when service made by person deputized by sheriff, 49.
requisites of, 49.
when copy to be deemed personally served, 49.
clerical error in defendant’s name in, 49.
effect of, 50.
does not lose its force by lapse of time, 50.
by sheriff, when service made in his county, 50.
not conclusive on defendant, 50.
as against defendant’s affidavit, 50.
in what matters, valid and conclusive, 51.

CERTIORARI.
service of notice of application for writ of, to review, 174.
service of writ of, 175.
how made, 175.
service of affidavit on which writ allowed, 176,
indorsement on writ, of due allowance, 176.

CHARTER ELECTION.
sorvice of summons on elector, on day of, 15.

CITATION.
service of, 195.
INDEX. 285

CITATION—Continued.
in the State, 195.
how made, 195.
when to be served, 195, 196.
who may serve, 195.
on infant or ward, 195, 196.
computation of time, 196.
who may waive, 196.
where made, 196, 197.
when to be personal, 197.
variance between citation and copy served, 197.
in Surrogate’s court of New York county, 197.
papers upon which issued, 197.
substitute for personal service upon a resident, 198,
by publication, or without the State, 199.
in what cases made, 199.
upon persons unknown, 200.
contents of order, 200, 201.
when and how made, 200.
time required for delivery of copy without State, 202.
when sufficient, 202.
publication of citation, etc., 204.
upon a corporation, infant, lunatic, etc., 202.
in certain cases of infancy or lunacy, not declared, 203.
proof of service of, 205.
how made, 206.
affidavit of service, 206.
where parties voluntarily appears 206.
similar to proof of service of summons, 207.

CITY.
service of summons on, 18, 27.

CLERK.
service of papers on attorney’s, in his office, 140,
when to be made, 141.
when sufficient, 141.

COMMITTEE.
service of summons on, in serving lunatic, 7.
286 INDEX.

COMMITTEE—Continued.
of non-resident lunatic, application for appointment of special guar-
dian, 7.
service, where there is no, 7.
personal service of process, when service on lunatic dispensed with, 26.

COMMON PLEAS.
service of summons, in certain cases, in court of, 17.

COMPLAINT.
where service is sought by publication, etc., 72.
existence of cause of action, 72.
actual presentation of to judge, 72.
effect of unverified, 73.
example of, unverified, 73.
publication of the, 91.
service of without state, 91-93,
mailing of copy, 93-96.
personal service of, 116.
service of copy, or notice with summons, 117.
to be served with summons, 117.
when copy complaint to be served, 117.
when service of written demand for, made, 117.
service of, on attorney for two or more defendants, 117.
when defendant can demand copy of the complaint, 118.
when service may be made, 118.
at what time plaintiff not required to serve copy, 118.
court may order copy served, 118.
when to be served, after demand for, made, 119
order extending time in which to serve, 119.
what is a sufficient demand of copy, 119.
consequence of failure to serve, 119, 120.
procedure, after notice of motion for dismissal of, 120.
when not served with summons, 123.
when defendant must answer, 124,
service of answer, when no, served or filed, 124.
when pleading served, 125,
service of, amended, 129.
double time to serve amended, by mail, 145.
substituted service of, 123,
(See PLEADING.)
INDEX, 287.
CONTEMPT.

service of order to show cause in proceedings to punish for, 187.
service of affidavit and warrant, 188.

COPY.

of summons served not an exact counterpart of original, 5.
sufficient when, 5.

variance between summons and copy served, 6.

service of wrong, 6.
of original, instead of copy, 6.

to be delivered and left with defendant when served, 8.

effect of service, if taken back, 8.

CORONER.
service of summons by, when sheriff is a party, 4.
power and duties of, in making such service, 4,

CORPORATION.
personal service of summons, on, 27.
upon domestic corporation, 27.
domestic corporation defined, 28.
national bank located in this state, 28,
corporation organized by consolidation of foreign and domestic
railroad companies, 28.
municipal corporations of this state, 28.
service on some one of officers named, 28,
reason why service to be so made, 29.
service upon assistant treasurer, 29,
upon trustee of religious, 29.
upon officers of, dissolved, 29.
upon officer who has resigned his office, 29.
who is a managing agent of, 29-32.
to be engaged in management of, 30.
duty embraces what, 30.
invested with general powers, 30.
division superintendent of railroad corporation, 30,
a ticket agent, 30.
baggage master, 30.
assistant secretary of foreign corporation, 30,
examples of, 31
agent of insurance company, 31.
service on, to be strictly within statute, 31.
288 INDEX.

CORPORATION—Continued.
burden on whom to show relation of agent, 32.

effect of not serving managing agent, 32.
upon foreign corporation, 32.
how made, 32.
section 432, based on what, 33, 34,
under Code of Procedure, 34.
on general solicitor or counsel of, 34,
service on, under new Code, 34.
section 134, a substitute for what, 35.
under Code of Civil Procedure, 35.
foreign corporation defined, 35.
legislature may regulate service, 35.
service on officer of, 35.
service on president of, while in state, 35.
what will render such service good, 36.
service on officer in N. Y. city as affecting jurisdiction of N. Y.
Superior Ct., 36.
on president, after he has resigned, 36.
on, before actually dissolved, 36.
effect of provision as to designated service, 37.
what is not sufficient revocation of designation, 37.
property of, within the state, 37.
when question of property important, 37.
amount of property required, 37.
object of provision requiring, 37, 38.
right of property to be present and absolute, 38,
property liable to attachment, 38.
as to what constitutes property, 38.
cause of action arises where, 38, 89, 41.
arises when, 41.
defined, 38.
is a right to what, 41.
arising within state, service sufficient when, 88.
insufficient when, 38.
meaning of phrase, ‘‘ cause of action arose,’ 88.
examples as to where, ‘‘ cause of action arose,”’ 39-41,
who are managing agents, 41-43,
extent of agency not defined, 41.
charge of whole business of, 41, 42.
when assent of corporation to mode of service implied, 42.
INDEX, 289

CORPORA TION—Continued.
passenger agent, 42.
See same subject under domestic corporation , 29-32.
voluntary appearance of in action, 55.
service of summons by publication upon foreign, 64.
service of citation upon a, 202.
of summons from Justice’s Court, upon, 211,
on domestic railroad, 211.
on express company, 212.

COUNTY.
service of summons on, 18.

CRIMINAL PROCESS.
detaining on, to make service, 12.

DAY.
service of summons during, 13.
DEATH.
of life-tenant, service of paper to discover, 189.

DECEIT.
service of process, effected by, 12.
requesting party to come to office, in order to serve, 12,
enticing party into district where plaintiff resides, 12.
service at Castle Garden, 12.

DEFECTIVE SERVICE, 111-116.

what is such service, 111.
irregular service, 111.
void service, 111.
instances of, 111, 112.
amendments of irregular service, 112.
remedy for, 113.

(See SERVICE OF SUMMONS.)

DEFINITION.
of domestic corporation, 28.
of foreign corporation, 35.
of cause of action, 38.

DEMURRER.
defendant appearing by, 121.
service of, 123.
290 INDEX.

DEMURRER— Continued.
when made, 1238.
when to be served to amended pleading, 129.
failure to serve to amended pleading, 129,

DEPOSITION.
service of order for, 159-161.
(See ORDER.)

DESIGNATED.
service of summons, 26,
how designation made, 26.
what designation must specify, 26.
effect and revocation of designation, 26.
how made, 27.
when absentee has failed to make designation, 27.
service on person designated by corporation, 82.
effect of provision as to designated, 37.

DIRECTION.
of papers, in serving by mail, 138.

DIVORCE.
affidavit of service in actions for, 46.
service by publication in action for, 64

DOMESTIC CORPORATION.
defined, 37.
examples of, cited, 28.
municipal corporation not, 28.
who is managing agent of, 29-32,
examples given, 30, 33.
(See CORPORATION.)

DUE DILIGENCE.
proof of, required to obtain order of publication, 71, 77.
what proof of, must be made, 77.
meaning of, 77.
what facts tend to show in attempting to serve defendant, 77.
what facts to be stated in affidavit, 77, 78.
when proof of, sufficient, 78.
instances cited, 78-81.
when proof insufficient, 81.
instances cited, 81, 82.
INDEX. / 291

ELECTION.
service of summons on day of, 14.
under Revised Statutes, 15.
on day of charter, 15.

ELECTOR.
service of summons, on election day, on, 15.

EXPRESS COMPANY.
service of summons from Justice’s Court on, 212,

FATHER.
service of summons on, in serving infant under 14, 6.

FEES.
allowed witness who is subpoenaed, 157, 158.
waiver by witness of payment of, 158.
to witness, on serving order for deposition, 161.
allowed on serving writ of habeas corpus, 168.

FOREIGN CORPORATION.
defined, 35.
personal service on, 32.
legislature may regulate service on, 35. :
service on officers of, 35.
designated service, 37.
property within State, 37.
where causes of action arises, 38.
service on managing agent, 37, 41.
who are managing agent, 41

FORMS.
admission of personal service, 246.
and consent to immediate judgment, 247. \
affidavit of personal service, of summons, 225 ;
in actions for divorce, 225
on infant under 14 years of age, 226.
on a lunatic, 227.
on under-sheriff, for sheriff, 227.
on person designated to receive same by foreign corporation,
238.
on a prisoner, 247.
without the State, 273.
292

INDEX.

FORMS—Continued.

of personal service, of notice, etc., on party or his attorney, 273.
of subpoena, 278.
of order for examination of party, etc., before trial, 278,
of substituted service of summons, 201.
of service of paper, other than process, by mail, 274.
upon attorney during absence from his office, by serving on
partner, etc., 275.
by leaving papers in conspicuous place in his office, 275.
by leaving paper in his office letter-box, 276.
on clerk, for non-resident party, 277.
on sheriff or coroner, 277.
for order, for service, where person to be served has adverse inter-
est, etc., 231.
dispensing with service upon a lunatic, 233.
for substituted service of summons, 248.
by publication against foreign corporation, 252.
when defendant is non-resident, 253.
non-residence alleged positively, 254.
against unknown defendant, 255.
where residence of defendant is unknown, 256.
against a resident who has departed from State to defraud his
creditors, 256.
against a resident, who is absent or concealed, 257.
of resident’s absence, 258.
of corroboration by attorney, 259.
against adult resident, absent from U. S., 260.
in action for devorce, separation, etc., 261,
in action relating to specific property, 262.
to avoid statute of limitations, 263.
on absent parent, etc., of infant under 14, 264.
on committee of lunatic, 264.
of the publication of summons and notice, 272.
of filing before publication or service, 270.
of mailing summons, complaint and order, 272.
of failure to serve answer or demurrer, 246.
to the signature of admission of service, 246.

application for order, of service on next friend of lunatic, 228.
certificate by sheriff of personal service on defendant, 241.

on infant under 14 years of age, 242.
INDEX. 293

FORMS—Continued.
on a lunatic, idiot, or habitual drunkard, 242.
on several defendants, at different times, 243.
on persons designated to receive service for absentee, 244,
upon a corporation, 244.
on person designated by a foreign corporation to receive service.
245,
when person so designated, cannot be found, 245.
for order for service by publication, 260.
change of office, or residence by person designated by foreign corpora-
tion to receive service, 241.
designation of person on whom summons may be served, for an ab:
sentee, 234
by foreign corporation when summons may be served, 238.
revocation of, to receive service for absentee, 236.
revocation of, by foreign corporation, 240.
noticeto defendant to be subjoined to summons as published, 271.
to be served with summons, when personal service not made with-
out State, 271
to defendant of entry of final judgment in case of service of publi-
cation, 278.
order for service, on next friend of infant, etc., 230.
where person to be served has adverse interest, 232.
dispensing with service of summons on lunatic, 234.
for substituted service, 258.
for service of summons by publication, 265-269.
where defendant is a non-resident, or foreign corporation, 263,
against an unknown defendant, 267.
against a resident, who has departed from State to defraud his
creditors, 267.
who keeps himself concealed within State, 267.
against adult resident absent from U. S., 268.
in action for divorce, separation, etc., 268.
in action relating to specific property, 269.
to avoid statute of limitations, 269.
Return of sheriff, to procure substituted service, 250.
Verification of petition for service on next friend, 229,
294 INDEX.

FRAUDULENT SERVICE.
of summons, 10.
want of notice to prepare defense, 10.
in inveigling party within jurisdiction, 11.
not made available in serving process, 11.
what is a, 112.
remedy for defective service, 113.

GUARDIAN.
service of summons on, in serving infant under, 14, 6.
when special, ad litem appointed, on whom to serve for infant or luna-
tic, 25.
what is an appearance in action by, ad litem, 55.

HABEAS CORPUS.
writ of, 168, 169.
by whom served, 168.
when service of, complete, 168.
fees paid, on service of, 168, 169.
fees to persons not officers, 169.
service of, when, allowed on application of attorney-general, or dis-
trict-attorney, 169.
mode of service, when person conceals himself, 170.

HABITUAL DRUNKARD.
service of summons on, 4.

HALF-HOLIDAY.
service of summons on, 14.
service of pleading, when last day to serve falls on Saturday, 14.

HUSBAND AND WIFE.
service of summons on, 20.
when wife must be served, 20.
service in action to foreclose mortgage, etc., 20.
where proceedings are against wife’s separate estate, 20.

IDIOT.
service of summons upon, 4.

IMPRISONMENT.
service of papers, for discharge from, on execution, 179.
what papers served, 179.
sufficiency of papers served, 179.
INDEX. 295

IMPRISONMENT—Continaed.
when plaintiff creditors are non-residents, 180.
when service cannot be made, 180.
when State is a creditor, 181.

INFANT.
service of summons on, under 14, 46.
how made, 46.
service on, by serving mother alone, 6.
not too young to receive personal service, 6.
mode of service, when father, etc., are unfit, 25.
in certain cases where infancy not declared, 24.
service on next friend for, 24, 25.
presumption when no next friend appointed, 24.

INJUNCTION ORDER.
how served, 168, 165.
what paper served with, 164.
paper served with, to be legible, 164.
service of, prior to service of summons, 164.
upon whom served, 164.
service on corporation, 165, 166.
original order to be shown, 165.
punishment of party for willful violation of, 165.
when service deemed sufficient, 165.
how served, when granted by the court, 166.

INSOLVENT’S.
service of order to show cause in proceedings for, 176,
discharge from his debts, 176.
(See ORDER TO SHOW CAUSE.)

IRREGULAR SERVICE, 111, 112, 113.
what is such service, 111.
instances cited, 111, 112.
amendment of irregularities, 112.
(See DEFECTIVE SERVICE, SERVICE OF SUMMONS.)

JUDGMENT DEBTOR.
service of warrant of arrest on, 194,

JURISDICTION.
effect of summons legally served, 10.
296 INDEX.

JURISDICTION—Continued.
how court acquires, of defendant, 11.
service of what paper gives court, 11.
service of summons to be made in, of court, 15.
over person served within the State, 15.
without the State, 16.
no extra territorial, in which to serve process, 16,
want of, cured by voluntary appearance, 16.
unless pleaded, 16.
unless to protest against, 1'7.
exception to rule that service must be within, 17.
in cases brought in superior court of New York, 17.
for purpose of serving process in counties of Kings, Richmond and
New York, 18.
sufficiency of evidence to give, 70.

JUSTICES’ COURTS SUMMONS.
service of, 208-220.
mode of service, 208.
who may make, 208, 209.
prepayment of fees for making, 208.
certificate of justice deputizing person to make, 208.
when to be served, 209.
where service to be made, 209.
manner of service, 210.
service of original instead of copy, 210.
upon a corporation, 211.
how made, 211.
when sufficient, 11.
on domestic railroad corporation, 211,
how made, 212.
on an express company, 212.
mode of service, 213.
and warrant of attachment upon defendant, 218,
mode of service, 214.
compliance with statute, 214.
return of, must state what, 214,
return of summons, 215.
when to be made, 216,
how made, 215.
must state what, 215.
INDEX. 297

JUSTICE’S COURT SUMMONS—Continued.
that summons was personally served, 215.
where defendant is a corporation, 216.
is an express company, 216.
and to warrant of attachment, 216,
and to requisition, 216.
subpoena, service of, 216.
by whom made, 216.
mode of service, 216.
return of constable to, 217.
when to be served, 217.
where to be served, 217.
to be personal, 217.
when sufficient, 217.
witness’ fees to be paid, 217, 218.
service of notice of appeal upon justice, 218.
upon respondent, 218.
mode of service, 218, 219.
where to be served, 219.
upon whom made, 219, 220.
when service on an attorney sufficient, 220.
of undertaking with, 220.
admission of due service, waives what, 220.

LAMP-POST-BOX.
depositing papers in, 94.

LETTER-BOX.
service on attorney by depositing papers in office, 142.
office, has reference to what, 143.

LUNATIC.
service of summons upon, 4, 7.
on committee of, 7.
on one with whom, resides, 7.
in certain cases where lunacy not declared, 24.
on next friend of, 24, 25.
on superintendent of asylum, 24.
how may be made where person representing is unfit, 25,
when special guardian may be appointed, 25,
where lunatic is of full age, 25.
when delivery of summons dispensed with, 25.
298 INDEX.

MAIL.
service of notices or papers by, 183, 134.
(See SERVICE OF PAPERS.)

MAN-OF-WAR.
service of summons on, 18.

MANAGING AGENT.
of domestic corporation, defined, 29-32.
must be engaged in management of corporation, 30.
duty of, embraces what, 30.
invested with general powers, 30.
division superintendent of railroad corporation, 30.
ticket seller only, 30.
baggage master, 30.
assistant secretary of foreign corporation, 30.
examples of, given, 31.
agent of insurance company, 31.

MANDAMUS.

service of papers for peremptory writ of, 171.

service of alternative writ of, 172.
how made, 172.
when to be served, 173.
on judges of C. P. 172, 173.
of notice of filing return to alternative writ of, 173.
of demurrer, 173.

MANNER.
of service, stated in affidavit of service, 45.
in admission of service, 51.

MARINE COURT.
service of summons outside of jurisdiction of, 17.
service in, 68, 221.

MATRIMONIAL ACTIONS.
service of summons by publication in, 108.

MOTHER.
service of summons on in serving infant under 14, 6.
serving, only, in serving infant, 6.
INDEX. 299

NEW JERSEY.
service of summons on waters in jurisdiction of, 18.

NEW YORK.
service of summons on city of, 18, 27.
NIGHT.

service of summons during, 13.

NON-RESIDENT.
effect of service on, in foreign state, 16.
service of summons by publication upon, 64.
upon representatives, 68.
proof that defendant is, to obtain order of publication, 71.
proof of being a, shows what, 76.
effect of proof only, that defendant is a, 76.
service on, infant defendant by publication, 96.

NOTICE.
to defendant, when service by publication is made 104-107.
of appearance, 120.
service of, on an attorney, 130.
of application for money paid into court in partition, 166.
mode of service, 166.
of filing return to alternative writ of mandamus, 173.
of sale in foreclosure by advertisement, 190.
mode of service, 190.
service on wife of grantee of mortgaged premises, 191.
by mail, 191.
when valid, 191.
to what place mailed, 191. r
affidavits of service must show what, 191.
on mortgagor not addressed to residence, 191.
made on whom when mortgagor dead, 191.
when sufficiently addressed, 192.
when service deemed complete, 192.
of application for surplus money, 192.
of appeal,upon justice of the peace, 218.
from justice’s court,upon respondent, 218,
on respondent’s attorney, 220.
copy of pleadings in marine court, 221.
(See PusiicaTion, etc.; APPEARANCE; SERVICE OF PAPERS.)
300 INDEX.

NOTICE OF TRIAL.
when to beserved, 152, 153.
who may serve, 152, 153,
who must be served with, 153.
when served by mail, 145, 154.
when last day falls on Sunday, 154.
how time of service computed, 154,

ORDER.
paper upon which, for publication made, 69

proof required to obtain, for publication, 71.
or service of summons by publication, 84.
by whom made, 84, 86.
compliance with statute, 85.
general requisites of the order, 87.
publication of the summons, 89.
publication of the complaint, 91.
personal service without State, 91.
deposit of papers in the post-office, 93.
service on non-resident infant defendant, 96,
(see further PUBLICATION.)
for service of citation, 200.
contents of; when and how made, 200.
for deposition, 159.
service of, on party to be examined, 159.
on attorney, 159.
where party has appeared as attorney in person, 159,
on attorney only, where party has appeared, 160.
where party has not appeared, 160.
on attorney for several defendants, 160.
as well as witness under § 871, 160.
on witness only, 160.
service of subpoena with, 160.
witness fees, 161.
by wrongfully entering house of person served, 161.
of arrest, etc., service of, 161-163.
of injunction, service of, and. papers on which granted, 163-166.
for discharge of prisoner, service of, 170.
in proceedings to punish for a contempt, 187.
service on defendant’s attorney, 187.
when defendant refuses to receive, 187.
INDEX. 301

ORDER— Continued.
amendment of error, when wrongfully directed, 188.
service of, in proceedings to discover death of life-tenant, 189.
in supplementary proéeedings, 192.
service of, in proceedings to show cause, 176-178.
for insolvent’s discharge from his debts, 176.
strict compliance with statute, 177.
deposit in post-office where creditor resides, 177.
proof of service of, 177.
proof how made, 178.
affirmatively shown, 178.
meaning of ‘‘ satisfaction of officer,” 178.
affidavit not defective when, 178.

PAPERS.
service of an attorney. (See Notice; See SERVICE OF PAPERS.)

PARTNERS.
service of papers on 181.(See SERVICE OF PAPERS),

PARTY.
service of papers, notice, etc., on 180. (See SERVICE OF PAPERS),
how service made upon non-resident, 149.

PEREMPTORY.
writ of mandamus, service of notice of application for, 171.

PERSONAL SERVICE,
of summons, 1-54.

by whom made, 1.
plaintiff's attorney may fix time of, 1.
sheriff to make, when, 1.
by private person, 1.
by person in private or official capacity, 2.
by plaintiff in person, 2.
by person over 18 years of age, 2.
by constable, 2.
by sheriff, 2, 3.
by sheriff when a party, 3.
by sheriff, when deputy-sheriff a party, 3.
when sheriff liable to damage in making, 3.
by sheriff, how far in an official capacity, 3.
prepayment of sheriff’s fees, for, 3.
802 INDEX.

PERSONAL SERVICE—Continued.
by coroner, when sheriff is a party, 4.
powers and duties of coroner in such case, 4,
upon a natural person, 4, 5,
upon an infant ander 14 years of age, 4.
upon a person judicially declared a lunatic, 4,
mode of service upon a sheriff, 4.
service of copy summons, 5.
copy, not an exact counterpart, 5.
to be substantially a correct copy, 5.
wrong copy served, 6.
on infant under 14 years of age, 6.
by serving mother alone, 6,
not too young to serve, 6.
on lunatic, and his committee, 7.
on non-resident lunatic, 7.
on sheriff, who has an office, 8.
when a party, 8.
means what, 8.
copy of summons to be given to defendant, 8,
paper taken back, when delivered, 8.
to be made when, 8.
copy to be left with defendant, 9.
when sufficient, 9.
by violence, 9.
by placing process on shoulders, 10,
when defendant eludes service, 10.
by wrongfully entering defendant’s house, 10,
by fraud or trickery, 10, 11.
as party is about to enter upon a sea-voyage, 10,
when illegal, court has no jurisdiction, 10.
jurisdicticn of defendant acquired by, 11.
inveigling party within jurisdiction, 11.
service on such party, when good, 11,
detaining party on criminal process, 12.
enticing party into district, 12.
to come to office, 12.
on party at Castle Garden, 12.
time of service not specified, 13.
when fixed by plaintiff's attorney, 18.
INDEX. 303:

PERSONAL SERVICE—Oontinued.
when made by sheriff, 13.
at any hour of the day or night, 13,
on Sunday, 18.
damages for making. 13.
on Saturday, 14.
on half-holiday, 14.
on elector on election day, 14.
on day of charter election, 15.
on day of town meeting, 15.
effect of, on day prohibited by statute, 15.
place of service, 15.
where to be made, 15.
in state on non-resident, 15.
effect of personal service out of the State, 16.
when void, 16.
courts no extra-territorial jurisdiction when, 16.
in N. Y. city, on resident who is one of the parties jointly liable:
in action, 17.
in N. Y. city where defendants reside in city, 17.
effect of service in Marine Court, outside jurisdiction, 17.
in counties bordering on Seneca lake, 17.
on man-of-war, 18.
on waters in counties of Kings and Richmond, south of bounds ofi
New York.
on waters in jurisdiction of New Jersey, 18.
on a county, 18.
effect of service on clerk of board of supervisors, 18.
on towns, 18.
on cities, 18, 27.
on city of New York, 18, 27.
on prisoner, 19.
how made, 19.
duty of sheriff or jailer to whom paper delivered, 19.
on husband and wife, 20.
when necessary to serve wife, 20.
in action to foreclose mortgage, etc.,’ 20.
on non-resident witness, 20.
on non-resident party attending as witness, 21.
coming to attend before city court of Brooklyn, 21..
804 INDEX.

PERSONAL SERVICE—Continued.
attending in a cause in U. S. circuit court, 21.
attending proceedings in bankruptcy, 21.
how long privilege from service continues, 21.
immunity from service dependent upon what, 22,
extends to whom, 22.
of non-resident, taking deposition within State, 22.
subpcenaed within State, 22.
when on way home, at his lawyer’s office, 22,
after trial, when he stops at place on business, 22.
when going off direct route home to attend funeral, 23.
after his delay of two weeks to attend other business, 23.
of two days to learn result of suit, 28.
by stopping over one train, 23.
where he stopped, to see counsel on business, 23.
to dine with attorney, etc., 23.
where he went in opposite direction to his residence, to several
places, after leaving court, 23.
defect in, waived by voluntary appearance, 23.
on ambassador, 23.
in certain cases of infancy or lunacy not judicially declared, 24.
on next friend of infant or lunatic, 24.
effect of service on superintendent of asylum, 24.
on specizl guardian ad litem, 25.
when guardian may be appointed, 25.
when delivery of summons, to lunatic, dispensed with, 25.
designation by resident of person on whom to serve summons, 26.
who may be so designated, 26.
how designation made, 26.
designation must specify what, 26.
how long designation remains in force, 26.
effect and revocation of designation, 26, 27.
design of provisions as to designation, etc., 27.
service on absentees, when no designation made, 2%.
on domestic corporation, 27.
how made, 32.
domestic corporation defined, 28.
on officers named in statute, 28.
upon assistant treasurer, 29.
on treasurer and secretary when, 29.
INDEX. 305

PERSONAL SERVICE.—Continued.
on trustees, etc., of religious corporation, 29,

on officer, where corporation is dissolved, 29.
on officer who has resigned, 29.
who is a managing agent, of, 29, 39.
examples of, given, 31.
to be strictly within statute, 31.
how and when service on, may be set aside, 32.
on foreign corporation, 82.
how made, 32.
under Code of Procedure, 34.
on general solicitor or counsel, 34.
on agent designated by, 34.
under Code of Civil Procedure, 35.
definition of foreign corporation, 35,
legislature may regulate service, 35.
on officer, 35.
on president while in state, 35, 36.
officers need not be in state on business, 86.
on officer in jurisdiction of superior court of New York, 36.
on individual sued in capacity of trustee, etc., 36.
on president after he has resigned, 36.
on corporation before it is actually dissolved, 36.
effect of provision as to designated service, 37.
property within the state, 37.
when question of property important, 37.
no specific amount of property required, 37.
object of provision requiring, 37, 38.
right of property to be present and absolute, 38.
it must be property liable to attachment, 38.
as to what constitutes property under section 482, 38-
cause of action arises where, 38, 39, 41.
arises when, 41.
defined, 38.
is a right to what, 41.
service sufficient when, 38.
insufficient when, 38.
* cause of action arose,’’ meaning of phrase, 388,
examples as to where, 39-41.
who are managing agents, 41-43.
extent of agency not defined, 41.
306 INDEX.

PERSONAL SERVICE—Continued.
general charge of business of corporation, 41, 42.
when assent of corporation to mode of service implied, 42
passenger agent, 42.
to commence a special proceeding, 43.
service on attorney not sufficient, 43.
a voluntary general appearance equivalent to, 54.
without the state, when service by publication ordered, 91, 92.
order of publication must require what, 91.
necessity of publication when ordered, 92.
can be made, when, 92.

PETITION.
service of, for discharge from imprisonment, on execution, 179.

serving, and notice in proceedings to discover death of life-tenant, 189.

PLACE.
of service of summons, within State, 15.
service on non-resident in the State, 15.
of service to be stated in affidavit of service, 45.
in admission of service, 52.

PLEADING.

when to be served, 125.

subscribed by attorney, 125.

presumption that copies served, a correct copy, 126.

issues raised are those of copy, 126.

procedure when party refuses to receive, 126.

service of counterclaim after notice of trial, 126.

service of, after expiration of time and before judgment, 126.

service on an attorney and not on agent merely, 127.

place and manner of serving, 127.

when defendant to serve copy answer on co-defendant, 127,

service of amended, 129.

failure to demur or answer to amended, 129.

party refusing to receive amended pleading, 129.

when amended complaint to be served on defendant’s attorney, 129.
(see ANSWER; CoMPLAINT; and DEMURRER.)

POSTING.
of papers and post-office, under servicé by publication, 93-96,
(See PUBLICATION, ETC.; SERVICE BY MAIL.)
INDEX. 307

POST OFFICE.
deposit in what, in serving papers by mail, 185.

PRECEPT.
service of, in Summary Proceedings, 181-187.
mode of service, 181, 182.
when service to be made, 181, 183.
service on under-tenant only, 182.
on general agent of corporation, 182.
on corporation, 182.
variance between original and copy served, 182.
personal service out of jurisdiction, etc., 183.
duty of person to whom delivered, 183.
when served on landlord of bawdy-house, 184.
proof of service, 184.
how made, 184, 185.
oral evidence admissible when, 185.
certificate of constable, 185.
time of service to be stated, 185.
to show on whom served, 186.
must show what, 186.
defective return may be amended when, 187.
appearance of defendant waives what, 187.
failure to appear admits what, 187.
service of, in proceedings relative to estrays, 221.

PRISONER.
service of summons on, 19.
how made, 19.
duty of sheriff or jailer in making, 19.
service of order for discharge of, 170.

PRIVATE PERSON.
service of summons by, 1.
distinction as to service by official and by, 2.
to know party served, 2.
not to strike name out of summons, 2.
effect of service by plaintiff personally, 2.
when service presumed to be made by plaintiff, 2.
no service to be made by, under 18 years, 2.
service by constable, how treated, 2.
308 INDEX.
PROCESS. (See Summons; PERSONAL SERVICE.)

PROOF.
of service. (See AFFIDAVIT OF SERVICE; ADMISSION OF SERVICES
CERTIFICATE OF SERVICE; PUBLICATION; ORDER TO SHOW
Cause; SERVICE OF PAPERS.)

PUBLICATION.
service of summons by, 64.
cases in which, may be ordered, 64, 65.
where defendant is a foreign corporation, etc., 64.
service beyond jurisdiction of court prior to the code, 66.
provision of the code limited to what cases, 67.
personal service when ordered, 67.
to obtain, a prior attempt to effect personal service, 67.
order for, made in equitable action, 67.
an attachment unnecessary to confer jurisdiction, 67.
requirement as to property under subd. 1 of § 488, 67.
section 488 applicable to infant, 67.
made on non-resident insane defendant, 67.
application of, to non-resident representatives, 68.
in Marine court of the city of New York, 68.
on unknown owners, 68.
in action of foreclosure, 68.
where party is an infant, 68.
in suits for partition, 68.
on resident of the State, who is in the State, 68.
must be concealed, to warrant, 68.
papers on which order for publication made, 69.
verified complaint, 69.
affidavit, 69.
statute to be strictly pursued, 69.
sufficiency of evidence to give jurisdiction, 71.
judge to pass upon sufficiency of evidence, 70.
prima facie case sufficient to authorize order, 70.
affidavit must show what, 70.
case must come within § 439, 70.
legal tendency to make case, sufficient, 70.
where proof tends strongly to establish facts giving jurisdiction, 7
when proof sufficient, 71.
existence of cause of action against defendant, 71.
INDEX. 809

PUBLICATION—Continued.
defendant to be a non-resident, 71.
exercise of due diligence to find defendant, 71.
application for order to be promptly made, 72.
the verified complaint, 72.
existence of cause of action, 72.
to be actually presented to judge, 72.
contra,—copy presented, 72.
what is a sufficient verification, 72.
effect of unverified complaint, 73.
the affidavit, 73-84.
proof, how made, 73.
return of a sheriff no part of proof, 73.
sheriff’s certificate no substitute for proof, 73.
return of sheriff, 73.
letters or papers referred to in affidavit, 74.
by whom made, 74.
by plaintiff, 74.
by any person, 74. »
title, 74.
effect of affidavit being wrongfully entitled, 74,
place of taking, 74.
allegations upon information and belief, 75.
of non-residents, 75.
that defendants can not be found within state, 75.
what facts must be positively stated, 75.
proof of residence, 75.
what must be shown as to, 75.

in actions for divorce, 76.
of infant, 76.

effect of, '76.
without State, does not show what, 76.
effect of proof of non-residence, only, 76.
what is sufficient proof of non-residence, 76.
proof of due diligence, 77.
what proof must be made, 77.
when proof held sufficient, 78-81.
insufficient, 81, 82.
property within State, 82.
proof that defendant has, to be stated, 83,
avoiding service, 83.
310 INDEX.

PUBLICATION—Continued.
when proof of to be made, 83.
intent to defraud creditors, 83.
defendant keeping himself concealed, 83.
the order, 84-96.
by whom made, 84, 86.
contents, 84.
compliance with statute, 85.
made by special term, 86.
general requisites, 87,
to be valid, &8.
validity of, judged upon what, 87.
presumptions respecting affidavits, 87.
must show there was a summons, etc., 88.
effect of omitting names of defendant in, 88,
service on non-resident infant defendant, 96.
where absentee fails to designate resident, 26.
when publication must be commenced, 96.
when service deemed complete, 96, 97, 98.
computation of time, 97.
what is the full period of publication, 97.
how publication must be made, 98.
commencement of time to answer, 98.
when defendant may appear and answer, 98.
what does not shorten time to answer, 98.
result if publication not complete, 99.
when warrant of attachment is granted, 99, 104.
by whom warrant granted, 99.
when service may be made, 99.
provisions applicable to what courts, 100.
when court acquires jurisdiction, 100.
effect of service not made within 30 days after warrant granted
100.
effect as to third person, 100.
defendant may waive effect of omission, 100.
what is sufficient service to preserve lien of attachment, 100.
design of provision, 101.
what is equivalent to personal service upon defendant, 101,
appearance dispenses with what, 101.
when appearance made to be effectual, 101.
against two defendants jointly liable, 102.
INDEX. 811

PUBLICATION.—Continued.
against a firm of two members when only one served, 102.
when defendant dies before service is complete, 102.
where service commenced before attachment granted, 103.
publication of the summons, 89.
order must state what, as to, 89.
in what papers, 89.
how often made, 90.
for what period, 90.
copy summons to be substantially a correct copy, 90.
copy summons published must specify what, 91.
publication of the complaint, 91.
personal service without the State, 91.
when may be made, 91, 92.
order must require what, 91.
necessity in making publication, 92.
separate order directing, 92.
can be made only when, 92.
effect of when publication and mailing ordered, 92.
copy of summons and complaint need not be mailed to defen-
dant, 93.
deposit of papers in post office, 93-96.
what order should direct, 93.
effect if order does not direct, 93, 94.
when to be made, 93.
when residence of defendants is unknown, 94.
post-office to be designated, 94.
depositing paper in lamp-post-box, 94.
in envelope indorsed as, ‘‘ return if not called for, etc.,’ 94.
mailing and addressing to place other than that stated in order,
95.
under subd. 2, § 438, Code Civ. Pro., 95.
defect in notice accompanying copy of summons mailed, 95.
when thirtieth day comes on Sunday, 103.
when publication made under invalid order, 104.
effect of vacating attachment granted, 104.
substituted service insufficent to sustain warrant, 104.
papers to be filed, 104, 105, 106.
where papers to be filed, 104, 105.
effect of, 105.
312 INDEX.

PUBLICATION—Continued.
where service made without the State, 106.
notice to defendant, 104, 105.
error in name of justice in, 105.
error in stating manner of service, 105,
where service is made without State, 106.
omission of words, ‘‘ without the State’’ in, 106.
error in form of, 107.
where party is unknown, 107.
in matrimonial actions, 108.
form of summons served, 108.
form of affidavit or certificate proving in certain cases, 108,
where copy summons is not same as original, 108.
proof of service, 109, 110.
by whom made, 109,
how made, 109.
official certificate of sheriff of another State, 110.
defendant when allowed to defend, 110.
effect of provision, 111.
to entitle defendant to defend, what must be shown, 111.
in cases only, where service is substituted or by publication, 111.
service of citation, by 199, 207.
(See CIraTIoNn.)

RAILROAD.
service of summons from Justice’s Court on domestic corporation, 211.

RESIDENCE.
proof of residence to obtain order for publication, 75, 76.
directing in serving by mail, to defendant’s place of, 140.
of party served by mail to be stated in affidavit, 156, 191.
(See Non-RESIDENT.)

RETURN.
of summons served from Justice’s Court, 215.
(See Justicres’ Courts.)

SATURDAY.
service of summons on Jews, etc., on, 14.
effect on judgment by service of summons on, 14,
service on half-holiday, 14.
INDEX. 813

SCHEDULE.
service of, on application for discharge from imprisonment on execu-
tion, 179.
SENECA LAKE.
service of process by officers of counties on, 17,

SERVICE OF PAPERS.
in action, 130.
personal service, on party or attorney, 131.
how papers served or filed, to be printed, 130.
size and weight of paper printed, etc., 180.
what notices referred to, 181.
meaning of word, ‘‘attorney,’’ 131.
on two attorneys in partnership, 131.
where one dies, 131.
on attorney not substituted as agreed, 131.
after entry of judgment on new attorney, 131.
two years after entry of judgment, etc., 182.
four years after entry of judgment, 182.
to set aside judgment, 132.
by party, 132.
mode of service, 132.
paper received back after serving, 183.
refusal of attorney to receive paper, 133.
time of service on attorney, 133.
upon party or attorney, not personal, 133.
how made, 133.
by mail, 133.
at office by leaving with attorney’s partner, 134.
by leaving in conspicuous place in attorney’s office, 184.
by leaving in office letter-box, 134.
on party, by leaving paper at his residence, 134,
by mail, 134-140.
mode of service, 134.
directions as to, to be strictly performed, 134.
what is giving notice by mail, 135.
who to be served, 135.
deposit in what post-office, 135.
at residence of attorney making service, 135.
in different post-office than that in place in which parties re-
side, 136
314 INDEX.

SERVICE OF PAPERS.—Continued.
when service deemed sufficient, 136.
service by mail, when personal service required, 136,
when service deemed complete, 136.
mailing on last day for service, 136.
court not bound by appearance of post-mark, 137.
how paper enclosed and directed, 138.
to be inclosed in wrapper, 138.
half of sheet used as wrapper, 138.
when sufficiently inclosed, 138.
affidavit of service to state papers inclosed, 138.
how directed, 138.
effect of direction, ‘‘return if not called for,”’ etc., 189.
prepayment of postage, 139.
entire postage to be paid, 139.
mistake of post-master will not excuse, 139.
before attorney bound to take paper from office, 139.
effect of taking paper from office, 139.
place of residence, 140.
words, relate to what, 140.
mailing to, designated, 140.
defendant may designate his, 140.
pleading served by mail, 140.
on clerk or partner of attorney at his office, 140, 141.
clerk to be in office of attorney, 141.
service on clerk in house where office kept, 141.
when service good, 141.
on attorney by leaving at his office, 141.
when such service good, 142.
by person procuring office to be unlocked, 142.
when can be made, 142.
by throwing into office through fan-light, 142.
by throwing through transom, 142.
by affixing to door, 145.
through slit in door into letter-box, 143.
office letter-box, has reference to what, 143.
when no service to be made at attorney’s residence, 143.
when best possible service sufficient, 143.
when he has fixed the place of service, 143.
when irregularity in, waived, 143.
INDEX. 315

SERVICE OF PAPERS.—Continued.
statement made when paper returned as irregular, 144.
service on wrong person in office, 144.
when paper served not be returned, 144.
on attorneys appearing in Surrogate’s Court, 207.
double time when served by mail, 145.
application limiting time in which to appeal, 145.
when plaintiff has 40 days to serve complaint, 145.
when defendant has 40 days to amend answer, 145.
as to when time begins to run, 146.
when attorney has 20 days to mail notice of exceptions to sureties
of undertaking, 146.
when service must be made on attorney, 146.
when not required, 146.
order to enforce civil remedy served on, 147.
where a party has appeared and pleaded, 147.
when retained to confess judgment, 147.
on whom notice of appeal to be served, 147.
where party has appeared in person, 147.
service of order for examination of party before trial, 147.
of order for inspection of books, 148.
for discovery, 148.
where attorney has become non-resident, 148.
what is an ordinary proceeding in an action, 148.
provisional remedies, 148.
death of party, precludes service on attorney, 149.
persons confined in prison, 149.
on non-resident party, 149.
on non-resident attorneys, 150.
on death or disability of attorney, 150, 151.
service through branch post-office in New York city, 151.
deposit of papers in postal box, attached to lamp-post, 151.
this article not applicable to service of summons, 152.
notice of trial, 152-154.
when to be served, 152.
who entitled to, 153.
who must serve, 153.
made by mail, 154.
when last day falls on Sunday, 154.
how computation of time made, 154.
316 INDEX.

SERVICE OF PAPERS.—Continued.
proof of service of paper, etc., 154-156.
due proof to be made when, 154.
how made, 154,
contents of proof, 155.
on attorney’s clerk, 155,
by leaving papers in conspicuous place in attorney’s office, 153.
affidavit when service is by mail, 155, 156.
as to manner of inclosing and mailing, 156.
as to directing, 156.
residence of attorney or party stated, 156.
admission of due service held sufficient, 156.
when party making service has died, 156.

SERVICE OF SUMMONS, 1.
personal service of, 1-56.
proof of, how made, 43.
by affidavit, 43, 44.
age, 44.
time, place, and manner of service, 45.
in actions for divorce, 46.
kind of proof, 47.
disputing the service, 47.

defective service, how cured, 48,
by sheriff’s certificate, 48.
proof by affidavit, 48.
by whom made, 49.
requisites of certificate, 50.
effect of certificate, 50.
by admission of service, 51.
mode of service, 51.
sufficiency of admission, 51.
time and place of service, 52.
verification of signature to admission, 53.
defective proof, how cured, 54.
by publication, 64.
cases in which made, 64.
general provisions, 66.
unknown owners, 68.
papers upon which order made, 69.
statute to be strictly pursued, 69.
INDEX.

BY PUBLICATION.—Continued.
sufficiency of evidence to give jurisdiction, 70.
the verified complaint, 72.
the affidavit, 73.
the order, 84.
contents, 84.
compliance with statute, 85.
by whom made, 86.
general requisites, 87.
publication of the summons, etc., 89,
of the complaint, 91.
personal service without state, 91.
deposit of papers in post-office, 93.
on non-resident infant defendant, 96.
the notice, 104-107.
when warrant of attachment granted, 99.
papers filed, 104-107.
in matrimonial actions, 108.
proof of, 109.
in action by private person for a penalty, etc., 167.
proof of, not proof of what, 167.
irregular, defective or fraudulent service, 111-116.
what is such serviee, 111.
where service of summons made by party, 111.
on Sunday, 111.
on Election day, 112.
by violence, 112.
by deception, 112.
no jurisdiction acquired by void service, 112,
amendment of irregularities, 112.
what may be amended, 112, 113.
remedy for defective service, 113, 116.
by motion, 113, 114.
by demurrer or answer, 114.
motion proper when, 114.
when motion must be made, 114, 115.
laches will not confer jurisdiction, 115.
when motion may be made after judgment, 115,
what proof may be made nunc pro tune, 116,

817
818 INDEX.

SHERIFF.
when to serve and return summons, 1.
distinction as to service by, and by private person, 2.
serving his own summons, 2.
service by, when a party, 3.
service of summons by, when deputy is a party, 3.
duty of, to serve process, 3.
when attachment to issue against, 3.
liability to plaintiff from serving papers, 3.
how far acts of, good in an official capacity, 3.
prepayment of fees for serving process, 3.
effect of service without prepayment of fees, 4.
service of summons upon, 4, 7.
who has an office, 8.
when a party, 8.
when service to be made by, 13.
certificate of service by, 48-51.

SPECIAL PROCEEDING.
personal service of process to commence, 43,
service on attorney to commence, 43.

STATE WRITS.

how served, 167, 168.

how styled collectively, 168.

service of writ of habeas corpus, 168, 169.
of notice, etc., of application for peremptory writ of mandamus,

171.

of alternative writ of mandamus, 172, 178.
of writ of prohibition, 174.
of notice of application for writ of certiorari to review, 174.
of writ of certiorari, 175.

SUBPG@NA.
mode of serving, 156, 157, 158.
who may serve, 157.
when to be served, 157.
no fees allowed party serving, 157.
witness fees paid to witness, 157, 158,
what fees allowable on serving, 158.
when action for penalty will not lie, 158.
waiver of payment of fees, 158.
INDEX. 319

SUPGNA.—Continued.
how proof of service of made, 158.
need not be served with order for deposition, 160.
proof of service of, from Surrogate’s Court, 205.
service of, from Justice’s Court, 216.
or warrant issued by Mayor’s court of the city of Hudson,
221.
or warrant issued by Recorder’s Court of cities of Utica.
and Oswego, 221.
(See JusTIcr’s CouRTS.)

SUBSTITUTED SERVICE.
of summons, when may be served, 57.
effect of substituted service, 57.
equivalent to what under § 1670, Code Civ. Pro., 57
sufficiency under § 638, Code Civ. Pro., 57.
as effecting statute of limitations, 57.
facts necessary to be shown by affidavit, 57.
must exist at time of the application, 57.
proof to be satisfactory proof, 58.
what is such proof, 58.
defendant to be a resident of the State, 58.
diligent effort to be made to serve summons, 58..
as to defendant’s place of sojourn, 58.
that defendant evades or avoids service, 58.
affidavit when held sufficient, 59.
instances cited, 59, 60.
affidavit held insufficient, 60, 61.
form of affidavit, 61.
how service must be made, 61.
what order for, must direct, 61.
word, ‘‘residence,’” synonymous with what, 62.
what papers must be filed, 62.
proof of service, how made, 62.
equivalent to what, 63.
the person serving, to state what, 63.
time and place of service to be stated in proof of, 63.
manner of service to be stated in proof, 63.
service at door of dwelling-house, 63.
125 feet distant from the house, 63.
of citation, 198.
320 INDEX.

SUMMARY PROCEEDINGS.
service of precept in, 181-187.

SUMMONS.
personal service of, 1.
served by whom, 1.
plaintiff's attorney may fix time of service, 1.
when sheriff to serve and return, 1.
by private person, 1.
difference between, by sheriff or private person, 2,
persons serving, to know person served, 2.
by plaintiff, 2.
at what age person may serve, 2.
by sheriff, 2.
by sheriff when a party, 3.
when deputy a party, 3.
duty of sheriff in making, 3.
prepayment of sheriff’s fees, 3.
by coroner, 4.
upon an infant, 4.
upon a lunatic so declared, 4, 7.
upon a sheriff, 4, 8.
copy served, to be exact counterpart, 5.
to be substantially same as original, 5,
variance in copy, 6.
wrong copy, 6.
of original, instead of copy, 6.
on committee of lunatic, 7.
mode of personal service, 8.
copy delivered to defendant, 8.
effect of mere manual delivery, 9.
offer to leave copy, 9.
refusal to receive copy, 9.
when sufficient, 9.
by violence, 9.
by thrusting papers on one, 9.
by laying papers on shoulder of person served, 10,
effect of, 11.
time of service, 13.
on Sunday, 13.
on Saturday, 14.
INDEX. 321

SUMMONS—Continued.
on half-holiday, 14.
on election day, 14.
on days of charter election, 15.
place of service, 15,
on man-of-war, 18.
on county or town, 18.
on city or village, 18.
on prisoner, 19.
on husband and wife, 20.
on witness, 20.
on ambassador, 23.
in certain cases of infancy or lunacy, not declared, 24,
upon special guardian, 25.
on lunatic dispensed with when, 25.
designated service, 26.
upon domestic corporation, 27.
domestic corporation defined, 28.
on officers, 28.
who is managing agent, 28.
upon foreign corporation, 32.
under Code of Procedure, 34.
under Code of Civil Procedure, 35.
on officers, 35.
designated service, 37.
property within state, 37.
where cause of action arises, 38,
who are managing agents, 41.
to commence special proceeding, 43.
proof of personal service of summons, 43.
affidavit of service, 44.
sheriff's certificate of service, 48.
admission of service, 51.
substituted service of, 56-61.
mode of service, 61.
papers to be filed; proof of, 62-61.
service of, by publication, 64-112.
cases in which it may be ordered, 64,
general provisions, 66.
-,on unknown owners, 68.
322 INDEX.

SUMMONS.— Continued.
on resident within state, 68.
papers on which order made, 69.
the verified complaint, 72.
the affidavit, 73.
the order, 84.
when publication to be commenced, 96.
when service deemed completed, 96.
computation of time of publication, 97.
commencement of time to answer, 98.
when warrant of attachment is granted, 99,
papers to be filed, 104, 105, 106.
notice to defendant, 104-107.
where party is unknown, 107,
in matrimonial actions, 108.
proof of, 109.
irregular, defective, or fraudulent service, 111-116.
personal service of, in Justices’ courts, 208-216.
(See Justices’ Courts.)
service of complaint with, in action in Justice’s court, of city of Brooke
lyn, 221.
service of, in New York Marine court, by publication, 221.
and order of arrest on that court, 221.
service of, in action in city court of Yonkers, 222.

SUNDAY.
effect of service of summons on, 13.
damages imposed on party serving on, 18.

SUPERINTENDENT.
division, of railroad corporation, a managing agent, 30.

SUPERIOR COURT.
of New York, service of summons in, 17.
service in action against several persons, jointly liable, when one
resides in city, 17.

SUPERVISORS.
service of summons on board of, 18.

SUPPLEMENTARY PROCEEDINGS.
service in, 192-194.
INDEX. 323

SUPPLEMENTARY PROCEEDINGS.
service of order, and affidavit in, 192.
mode of service, 193.
service after return day, 193.
who may serve, 193.
what signatures copy affidavit served, to contain, 193.
where served, 194.
proof of service, how made, 194.
when irregularity or defect in service, waived, 194,

SURPLUS MONEY.
service of notice of application for, 192.

SURROGATE’S COURT.
service of citation and papers, from, 207,
(See CITATION. )

TICKET SELLER.
of railway company, not managing agent, 30.

TIME.
of service of summons, 13.
not specified, 13.
may be fixed by attorney, 13.
by sheriff, 18.
at any hour of day or night, 13.
on Sunday, 13.
on Saturday, 14.
on half-holiday, 14.
on elector on election day, 15.
on town meeting day, 15.
on day of charter election, 15.
to be stated in affidavit of service, 45.
in admission of service, 52.
computation of, in service by publication, 97.
commencement of, to answer, when served by publication, 98.
of service of papers, etc., in action, on attorney, 133.
of delivery of copy of citation, etc., without the State, 202.

TOWN.

service of summons on, 18.
324 INDEX.

TOWN MEETING.
service of summons on elector on day of, 15.

TRICK.
to deprive defendant of fair notice in serving, 10.
available in service of process, 12.
detaining party on criminal process, to serve, 12.

UNKNOWN.
service of summons by publication on defendant, 64.
in action for foreclosure, 68.
in suit for partition, 68.
notice to defendant, published, 107.
service of citation on person, by publication, 200.

VILLAGE.
service of summons on, 18.

VIOLENCE.
service of summons by, 9.
thrusting papers on person of defendant, 9.
laying process upon shoulders of defendant, 10.
wrongfully breaking in house to make service, 10.

WARRANT.
of arrest, service of, on judgment debtor, 194.
of attachment, service by publication, when, granted, 99.
service of, in contempt proceedings, 188.
when to be served, 188.
what papers served with, 188.
service made on whom, 188.
(See PUBLICATION, ETC.)

WIFE.
service of summons on, 20.

WITNESS.
service of summons on non-resident, 20.
on non-resident party, 21.
before city court of Brooklyn, 21.
attending in U. S. circuit court, 21.
attending proceedings in bankruptcy, 21.
how long privilege from service continues, 21.
privilege continuing during time court in session, 21.
INDEX. 3820

WITNESS— Continued.
immunity from service, dependant upon what, 22.
as to non-resident attending court not as a, 22.
of non-resident taking deposition in state, 22.
subpoenaed within state, 22.
service of process on non-resident on way home from court, 22.
when stopping at coffee-house on business, 22.
when attending funeral, on way home, 23.
after delay of two weeks, to attend to other business, 23.
after delay of two days to learn result of suit, 23.
after stopping over one train, 23.
to see counsel on business, 23.
to dine with attorney, etc., 23.
after going to his office, for two hours, to sort papers, 23.
after going in opposite direction to his residence after leaving
court, 23.

waives defect in service by voluntary appearance, 23.

(See STATE WRiTs.)