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7. One form whether legal or equitable. There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished. Code Civ. Pro., § 3339. 31 Hun, 137, 138; 8. c. 66 How. Pr. 257, 264; 44 Hun, 567, 569; 48 id. 359, 397, 404; 15
Civ. Pro. 151, 153; 23 id. 443; 61 Hun, 460; 8 Misc. 484; 24 Abb. N. C. 150; 34 N. Y.
231; 34 id. 891; 69 N. Y. St. R. 69. 8 Certain statutes as to publication, etc., not affected. Each provision of this act, requiring the publication of a summons, notice, or other paper, in one or more newspapers, or authorizing or requiring a court, or a judge, to designate one or more newspapers, in which such a publication must be made, or requiring the posting of a notice or other paper, is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former provision takes effect, prescribing one or more particular newspapers, in which such a publication must or may be made, or one or more particular places, in which notices or other legal papers must or may be posted, in a particular locality, or in a particular case. Code Civ. Pro., § 3340.
Commencement of an Action. 9 Summons: service of, commences action; provisional remedies. A civil action is commenced by the service of a summons. But from the time of the granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nerertheless, jurisdiction thus acquired is conditional, and liable to be divested, in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act, to be done after the granting of the provisional remedy. Code Civ. Pro., § 416. 14 How. Pr. 337; 24 id. 383; 1 How. Pr. (N. S.) 243: 3 id. 124: 48 N. Y. 585, 604: 63 id.
114; 84 id. 622; 38 N. Y. Super. 517, 527; 50 id. 458; 51 id. 250; 53 Barb. 517; 15 Hun, 97; 13 id. 579; 27 id. 48; s. c, 63 How. Pr. 280; 27 Hun, 269, 270; 7 Civ. Pro. 19; 8 id: 43, 45, 424, 297, 305; 18 Abb. N. C. 352, 356; 18 Civ. Pro. 85; 23 id. 319; 126 N. Y. 483; 130 id. 571; 4 Misc. 268; 6 id. 249; 7 id. 396; 26 Abb. N. C. 40; 34 N. Y. St. R. 580; 38 id. 515; 42 id. 742; 43 id. 616; 46 id. 574; 53 id. 318: 57 id. 556, 764, 767; 66 id. 821: 12 N. Y. Supp. 770: 13 id. 834; 18 id. 69; 101 id. 24; 29 id. 975; 1 App. Div. 590; 70 N. Y. St. R. 258. 10 Same: requisites of. The summons must contain the title of the action, specifying the court in which the action is brought, the names of the parties to the action, and, if it is brought in the supreme court, the name of the county in which the plaintiff desires the trial; and it must be subscribed by the plaintiff's attorney, who must add to his signature his office address, specifying a place within the state where there is a post-office. If in a city, he must add the street, and street number, if any, or other suitable designation of the particular locality. Code Civ. Pro., § 417, as am'd L. 1877, c. 416, and L. 1879, c. 542. 5 How. Pr. 233, 241; 4 id. 154; 6 id. 439; 13 id. 288; 3 id. 397; 55 id. 345; 58 id. 376; 45
Barb. 10; 20 N. Y. 355; 5 Rob. 640; 7 Alb. L. J. 135; 10 Abb. Pr. 260, n.; 18 Abb. N.
Pro. 125; 12 id. 427; 88 Hun, 513. 11. Same: form of. The summons, exclusive of the title of the action and the subscription, must be substantially in the following form, the blanks being properly filled:
“ To the above named defendant: You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failue* to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint.
The summons is deemed the mandate of the court. Code Civ. Pro., § 418, as am'd L. 1877, c. 416. 18 Abb. N. C. 200, 201, n.; 130 N. Y. 571; 32 N. Y. St. R. 99; 42 id. 742; 9 N, Y. Supp.
* So in the original.
12 Voluntary appearance. A voluntary general appearance of the defendant is equivalent to personal service of the summons upon him. Code Civ. Pro., § 424. 5 W. D. 589; 8 id. 411; 7 id. 353; s. c. 15 Hun, 356; 15 W. D. 25; 13 Abb. Pr. (N. S.) 295;
15 id. 24, 30; 12 id. 335, 338; 16 id. 249, 257; 7 How. Pr. 327; 51 N. Y. 649; 71 id. 253; 73 id. 223; 74 id. 495, rev'g 54 How. Pr. 402; 84 id. 622; 108 id. 355; 34 N. Y. 536, 542; 91 id. 668, 669; 1 Dem. 387; 27 Hun, 242, 243; 46 id. 520; 6 Civ. Pro. 117, 120; 20 Abb. N. C. 427; 21 id. 179, n., 180, n., 181, n., 18 id. 434; 122 N. Y. 263; 19 Civ. Pro. 160; 22 id. 317, 356, 366; 23 id. 345; 133 N. Y. 55; 7 Misc. 426; 33 N. Y. St. R. 330; 40 id. 960; 43 id. 334; 44 id. 316; 57 id. 651; 58 id. 624; 2 N. Y. Supp. 174, 265; 16 id. 744;
17 id. 78; 27 id. 975. 13 Summons: by whom served; time limited; duty of sheriff. The summons may be served by any person, other than a party to the action, except where it is otherwise specially prescribed by law. The plaintiff's attorney may, by an indorsement on the summons, fix a time within which the service thereof must be made: in that case, the service cannot be made afterwards. Where a summons is delivered for service to the sheriff of the county, wherein the defendant is found, the sheriff must serve it, and return it, with proof of service, to the plaintiff's attorney, with reasonable diligence. Code Civ. Pro., § 425. 2 Abb. Pr. 344; 18 How. Pr. 347; 8. c. 10 Abb. Pr. 260; 23 Civ. Pro. 59; 83 Hun, 420;
64 N. Y. St. R. 748. 14 Service: on natural person; infant under fourteen; persons judicially declared incompetent; sheriff. Personal service of the summons upon a defendant, being a natural person, must be made by delivering a copy thereof, within the state, as follows:
1. If the defendant is an infant, under the age of fourteen years, to the infant in person, and also to his father, mother, or guardian; or if there is none. within the state, to the person having the care and control of him, or with whom he resides, or in whose service he is employed. 3 Misc. 1; 53 N. Y. St. R. 628.
2. If the defendant is a person judicially declared to be incompetent to manage his affairs in consequence of lunacy, idiocy, or habitual drunkenness, and for whom a committee has been appointed, to the committee, and also to the defendant in person.
3. If the action is against a sheriff, for a cause specified in section one hundred and fifty-eight* of this act; by delivering it to the defendant in person, or to his under-sheriff in person, or at the office of the sheriff during the hours when it is required by law to be kept open, to a deputy-sheriff or a clerk in the employment of the sheriff, or other person in charge of the office.
4. In any other case, to the defendant in person. Code Civ. Pro., § 426, as am'd L. 1879, c. 542. 6 How. Pr. 194; 5 id. 109; 62 id. 460; 34 N. Y. 536, 542; 73 id. 45, 53; 84 id. 445; 5 T. &
C. 243; s. c. 3 Hun, 80; 7 Daly, 523; 4 Abb. N. 0. 144; 13 id. 413; 17 id. 101; 5 W. D. 588; 1 City Ct. 487, 488; 8 Civ. Pro. 424, 426; 12 id. 151, n.; 14 id. 344, n.; 47 Hun, 607; 18 Civ. Pro. 279,' 372, 394; 19 id. 292, 294, 351, 366; 20 id. 121, 255, 258; 22 id. 371; 23 id. 59; 56 Hun, 423; 31 N. Y. St. R. 205; 34 id. 492; 2 N. Y. Supp. 174, 265;
10 id. 32; 11 id. 740; 23 id. 795. 15 Same: on infant of fourteen, or incapable person. 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 defendant's interest, make an order, requiring a copy of the summons to be also delivered, in behalf of the defendant, to a person designated in the order, and that service of the summons shall not be deemed complete, until it is so delivered. Code Civ. Pro., § 427 1 City Ct. 487, 488; 12 Civ. Pro. 151, n.; 14 id. 344, n.; 47 Hun, 607; 22 Civ. Pro. 165.
16 Same: on person designated by court; guardian ad litem. In a case specified in subdivision first or second of section 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 sum
* Escapes, $ 1.
red, is adv protect the last
mons has been delivered, is adverse to that of the defendant, or that, for any reason, he is not a fit person to protect the rights of the defendant, it may likewise make an order, as prescribed in the last section. In a case specified in subdivision second, the court may, as a part of the same order, or by a separate order, made, in like manner and upon like ground, at any stage of the action, appoint a special guardian ad litem to conduct the defence for the incompetent defendant, to the exclusion of the committee, and with the same powers, and subject to the same liabilities, as a committee of the property. Code Civ. Pro., $ 428, as an'd L. 1877, c. 416. 12 Civ. Pro. 151, n.; 19 Abb. N. C. 187, n.
17 Same: on lunatic dispensed with. Where the defendant has been judicially declared to be incompetent to manage his affairs, in consequence of lunacy, and it appears satisfactorily to the court, by affidavit, that the delivery of a copy of the summons to him, in person, will tend to aggravate his disorder, or to lessen the probability of his recovery, the court may make an order, dispensing with such delivery. In that case, a delivery of a copy of the summons, to a committee duly appointed for him, is sufficient personal service upon the defendant. Code Civ. Pro., § 429.
18 Same: on person designated by absent defendant; requisites of designation. A resident of the state, of full age, may execute, under his hand, and acknowledge, in the manner required by law to entitle a deed to be recorded, a written designation of another resident of the state, as a person upon whom to serve a summons, or any process or other paper for the commencement of a civil special proceeding, in any court or before any officer, during the absence from the United States of the person making the designation; and may file the same, with the written consent of the person so designated, executed and acknowledged in the same manner, in the office of the clerk of the county, where the person making the designation resides. The designation must specify the occupation or other proper addition, and the residence of the person making it, and also of the person designated: and it remains in force during the period specified therein, if any; or, if no period is specified for that purpose, for three years after the filing thereof. But it is revoked earlier, by the death or legal incompetency of either of the parties thereto; or by the filing of a revocation thereof, or of the consent, executed and acknowledged in like manner. The clerk must file and record such a designation, consent, or revocation; and must note, upon the record of the original designation, the filing and recording of a revocation. While the designation remains in force, as prescribed in this section, a summons, or any process or other paper for the commencement of a civil special proceeding, against the person making it, in any court or before any officer, may be served upon the person so designated, in like manner and with like effect, as if it was served personally upon the person making the designation, notwithstanding the return of the latter to the United States. Code Civ. Pro., § 430, as am'd L. 1877, c. 416. 7 Misc. 98; 57 N. Y. St. R. 98; 27 N. Y. Supp. 399.
19 Same: on domestic corporation. Personal service of the summons upon a defendant, being a domestic corporation, must be made by delivering a copy thereof, within the state, as follows:
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, treasurer, counsel, attorney, or cierk; or, if the city lacks either of those officers, to the officer perforining corresponding functions, under another name.
3. In any other case, to the president or other head of the corporation the secretary or clerk to the corporation, the cashier, the treasurer, or a director or managing agent. Code Civ. Pro., § 431. 6 How. Pr. 308; 9 id. 448; 2 E. D. Smith, 519; 4 Abb. Pr. 424; 8. c. 6 Duer. 682; 25 Hun,
479; 31 id. 577; 33 id. 152; 48 id. 191; 87 N. Y. 137, 140; 14 Civ. Pro. 226; 15 id. 203; 13 id. 234; 21 W. D. 130: 1 City Ct. 138; 18 Civ. Pro. 282, 363; 22 id. 434; 138 N. Y. 491; 56 Hun, 430; 72 id. 602; 78 id. 32; 30 N. Y. St. R. 691; 31 id. 465; 32 id. 1119;
r to the Unitesion making theand with like" may be serve 19 same?om7. St. R. 98tates, Code Cinsignation, notweit, as if it wupon the
39 id. 157; 53 id. 86; 54 id. 764; 59 id. 684; 60 id. 259, 495; 12 N. Y. 57, 63; 45 id. 686; 82 id. 22; 5 id. 67; 2 Sandf. 470; 14 Barb. 52, 58; 19 How. Pr. 373; 21 id. 182; 1 N. Y. Supp. 609; 2 id. 355, 682; 10 id. 138; 11 id. 772; 12 id. 95; 14 id. 875; 20 id. 300; 25 id.
264; 28 id. 959, 1030; 29 id. 1092; 33 id. 79; 37 id. 645; 67 N. Y. St. R. 381. 20 Same: on foreign corporation. Personal service of the summons, upon a defendant, being a foreign corporation, must be made by delivering a copy
dant;thin the state, as rer. or secretary; oronding functions,
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. 87 N. Y. 137; 31 Hun, 577; 11 W. D. 526; s. c. 60 How. Pr. 419; 46 N. Y. Super. 383, 406;
13 Civ. Pro. 234; 4 id. 196; 32 Hun, 190; 57 Barb. 438; 46 N. Y. St. R. 662. 2 To a 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, accompanied with the written consent of the person designated, and filed in the office of the secretary of state. The designation must specify a place, within the state, as the office or residence of the person designated; and, if it is within 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 residence, to some other place within the state, by writing, executed by him, and filed in like manner. The secretary of state may require the execution of any instrument, specified in this section, to be authenticated as he deems proper, and he may refuse to file it without such an authentication. An exemplified copy of a designation so filed, accompanied with a certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it. 63 N. Y. 114; 1 App. Div. R. 135; 3 id. 572.
3. If such a designation is not in force, or if neither the person designated, nor an officer specified in subdivision first of this section, can be found with due diligence, and the corporation has property within the state, or the cause of action arose therein; to the cashier, a director, or a managing agent of the corporation, within the state. Code Civ. Pro., § 432, as am'd L. 1877, c. 416. 5 How. Pr. 183: 49 id. 117; 70 N. Y. 223; 87 id. 137; 104 id. 480; 8 Abb. Pr. 427; 19 Hun,
405; 12 id. 126; 17 id. 316; 12 Civ. Pro. 19; 2 How. Pr. (N. S.) 156; 115 N. Y. 437; 20 Cir. Pro. 386; 22 id. 201, 437; 136 N. Y. 343; 67 Hun, 281; 84 id. 285; 85 id. 403; 23 Abb. N. C. 233; 32 N. Y. St. R. 849; 38 id. 406; 39 id. 157; 50 id. 8, 282; 51 id. 364; 66 id. 476. 617; 7 N. Y. Supp. 166; 10 id. 471; 12 id. 95: 14 id. 491, 875; 19 id. 471; 20 id. 135, 275; 21 id. 543; 22 id. 86; 37 id. 832; 90 Hun, 36; 1 App. Div. 135; 3 id. 572;
146 N. Y. 281; 68 N. Y. St. R. 182; 70 id. 395. 21 Service of process to commence 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 proceeding is commenced in a court, or before an officer, except a proceeding to punish for contempt, and except where special provision for the service thereof is otherwise made by law. Code Civ. Pro., § 433. 18 Cir. Pro. 85; 20 id. 383; 83 Hun, 420; 58 N. Y. St. R. 653; 14 N. Y. Supp. 467; 64 N.
Y. St. R. 748. 22 Proof of service of summons. 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. 5 How. Pr. 341; 56 id. 364; 1 Abb. Pr. 126; 4 id. 352; 9 id. 61; s. c. 17 How. Pr. 477; 2
Abb. Pr. 416. 2. If the defendant served is an adult, who has not been judicially declared to be incompetent to manage his affairs, the service may be proved by a written admission, signed by him, and either acknowledged by him, and certified in like manner as a deed to be recorded in the county, or accompanied with the affidavit of a person, other than the plaintiff, showing that the signature is genuine.
* This subject, $8 9-22.
residence, and by del to him, at his
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. Code Civ. Pro., § 434. 16 How. Pr. 129; 5 id. 341; 48 id. 240; 73 N. Y. 256; 138 N. Y. 265; 15 Hun, 533; 52 N. Y.
St. R. 347. 23 Service on resident defendant not found within state. Where a summons is issued in any court of record, an order for the service thereof upon a defendant residing within the state, may be made by the court or a judge thereof, or the county judge of the county where the action is triable, upon satisfactory proof, by the affidavit of a person not a party to the action, or by the return of the sheriff of the county where the defendant resides, that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his sojourn cannot be ascertained, or if he is within the state, that he avoids service, so that personal service cannot be made. Code Civ. Pro., § 435, as am'd L. 1877, c. 416, and L. 1880, c. 535. 6 T. & C. 560; 8. c. 4 Hun, 315; 32 Barb. 647; 2 Abb. Pr. 454; 4 Abb. N. C. 144; 21 id.
174, 176, 178, n., 180, n.; 8. c. 13 Civ. Pro. 282; 7 Daly, 147; 55 How. Pr. 418, aff'd, 16
897; 20 id. 49; 22 id. 1089; 23 id. 481; 26 id. 956. 24 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 application, admittance can be obtained, and such person found who will receive it; or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant's residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper, addressed to him, at his place of residence, in the postoffice at the place where he resides; or upon proof being made by affidavits that no such residence can be found, service of the summons may be made in such manner as the court may direct. Code Civ. Pro., § 436, as am'd L. 1877, c. 416, and L. 1896, c. 562. 122 N. Y. 263: 19 Civ. Pro. 157; 69 Hun, 272; 33 N. Y. St. R. 329; 53 id. 309; 57 id. 226;
23 N. Y. Supp. 471. 25 Time for filing papers and completing 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 publication, pursuant to an order for that purpose, made as prescribed in the next section. Code Civ. Pro., § 437. 6 Civ. Pro, 370; 21 Abb. N. C. 176, 177, 178, 179, nQ; s. c. 13 Civ. Pro. 284; 122 N. Y. 263;
19 Civ. Pro. 157; 33 N. Y. St. R. 329. 26 Service on defendant without state, or by publication. An order, directing the service of a summons upon a defendant, without the state, or by publication, may be made in either of the following cases: 143 N. Y. 172; 8 Misc. 606.
1. Where the defendant to be served is a foreign corporation; or, being a natural person, is not a resident of the state; or where, after diligent inquiry, the defendant remains unknown to the plaintiff, or the plaintiff is unable to ascertain whether the defendant is or is not a resident of the state. 10 Abb. Pr. (N. S.) 2, n.; 2 T. & C. 491; 9 Alb. L. J. 242; 2 How. Pr. (N. S.) 133; 5
T. & C. 279; s. c. 49 How. Pr. 50; s. c. 3 Hun, 60; 50 N. Y. 667; 76 id. 540, aff'g 14
245; 55 N. Y. Super. 220; 23 Civ. Pro. 197; 8 Misc. 236; 59 N. Y. St. R. 225. 2. Where the defendant, being a resident of the state, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons; or keeps himself concealed therein, with like intent.
17 How. Pr. 106; 8. c. 9 Abb. Pr. 66; 32 Barb. 604; 64 id. 421; 68 Hun, 526.
being made by añade in such
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