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3. Where the defendant, being an adult, and a resident of the state, has been continuously without the United States more than six months next before the granting of the order, and has not made a designation of a person upon whom to serve a summons in his behalf, as prescribed in section four hundred and thirty of this act; or a designation so made no longer remains in force; or service upon the person so designated cannot be made within the state, after diligent effort.

4. Where the complaint demands judgment annulling a marriage, or for a divorce, or a separation. 72 N. Y. 239; 101 id. 35; 2 T. & C. 491; 3 How. Pr. (N. S.) 167, 279.

5. Where the complaint demands judgment, that the defendant be excluded from a vested or contingent interest in, or lien upon, specific real or personal property within the state; or that such an interest or lien in favor of either party be enforced, regulated, defined, or limited; or otherwise affecting the title to such property. 53 N. Y. 280; 56 id. 359; 73 id. 355; see Code Civ. Pro., & 1541; 6 Civ. Pro. 221; 36 Hun,

347, 349: 22 W. D. 525; 112 N. Y. 382; 55 Hun, 365; 67 id. 281; 8 Misc. 236; 51 N. Y.

St. R. 364; 50 id. 225. 6. Where the defendant is a resident of the state, or a domestic corporation; and an attempt was made to commence the action against the defendant, as required in chapter fourth* of this act, before the expiration of the limitation applicable thereto, as fixed in that chapter; and the limitation would have expired within sixty days next preceding the application, if the time had not been extended by the attempt to commence the action. 1 App. Div. 404.

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

When a copy of the summons is required by subdivision first or subdivision second of section four hundred and twenty-six 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 publication, 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 hundred and forty-four, both inclusive, apply to the proceedings in like manner as if such person was a defendant. Code Civ. Pro., § 438, as am'd L. 1879, c. 542, and L. 1884, c. 399.

3 N. Y. Supp. 84, 792; 8 id. 295, 894; 12 id. 75, 76, 78; 22 id. 86, 1089; 29 id. 395. See Partition, ģ 10.

27. Upon what papers order granted. The order must be founded upon a verified complaint, showing a sufficient cause of action against the defendant 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 a resident of the state, or in a casę specified in subdivision fourth, fifth, or seventh of the last section, that the plaintiff has been or will be unable, with due diligence, to make personal service of the summons. Code Civ. Pro., § 439, as am'd L. 1877, c. 416, and L. 1879, (. 542. 3 Hun, 60; s. c. 49 How. Pr. 50; 27 Hun, 40, 41; s. c. 2 Civ. Pro. 55; s. c. 63 How. Pr.

382; 8. c. 15 W. D. 48; 36 Hun, 349; 36 id. 245, 221, 222; 53 Barb. 517; 41 id. 549; 32
id. 604; 17 Abb. Pr. 67; 12 Abb. Pr. (N. S.) 340; 12' id. 171; 64 Barb. 421: 3 Civ. Pro
69: s. c. 64 How. Pr. 450; 2 Civ. Pro. (McCarty) 250, 428; 6 Civ, Pro. 119, 219; 7 id.
396: 14 id. 90; 15 id. 78; 52 N. Y. Super. 1, 7; 55 id. 220; 66 How. Pr. 266, 267; s. c. 4
Civ. Pro. 276, 278; 66 How. Pr. 468; 39 id. 392; 64 id. 71, 72; 2 How. Pr. (N. S.) 133;
3 id. 167: 22 W. D. 525; 11 id. 131, 246; 9 id. 14; 4 Dem. 393; 74 N. Y. 68; 85 id. 313;
82 id. 256: 101 id. 487, rev'g 32 Hun, 35; 112 N. Y. 382: 23 Civ. Pm.
493: 133 id. 55: 143 N. Y. 12: 62 Niysi Biał: 10 CV. Pro: 197; 127 N. Y.

133 id. 55; 143 N. Y. 172; 62 N. Y. St. R. 194; 3 N. Y. Supp. 84, 792: 8 id. 295: 12 id. 75, 76, 78.

* Code Civ. Pro., $$ 362-415.

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28 By whom made; 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 (! 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 of 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 person with whom he is sojourning; or, if the defendant is a corporation, upon 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 plaintiff deposit in a specified post-office, one or wore 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 affidavits upon which the order was granted, that the plaintiff cannot, with reasonable diligence, ascertain a place or places where the defendant would probably receive matter transmitted through the post-office, dispenses with the deposit of any papers therein. Code Civ. Pro., § 440, as am'd L. 1879, c. 542, and L. 1889, c. 195. 21 N. Y. 150; 73_id. 355; 49 id. 84; 89 id. 397; 8. c. 11 Abb. N. C. 104; s. c. 15 W. D. 23,

24; 10 Abb. Pr. 468; 9 id. 66, 70; 8. c. 17 How. Pr. 106; 12 Abb. Pr. (N. S.) 171, 174; 3 id. 396; 32 Barb. 604, 609; 3 How. Pr. 109; 23 id. 516; 66 id. 472; 3 How. Pr. (N. S.) 167; 3 id. 122; 80 N. Y. 547, 550; s. c. 58 How. Pr. 505, 508; 12 W. D. 99, 100; 9 id. 332: 13 id. 331; 19 Hun, 116, aff'á, 9 W. D. 532; 16 Hun, 454; 14 id. 73; 24' id. 645; 20 id. 15; 30 id. 204, 207; 38 id. 152, '154; s. c. 8 Civ. Pro. 297; 44 Hun, 555; 2 L. B. 10; 4 id. 36; 6 Lans. 494; 7 Civ. Pro. 245, 247; 9 id. 163; 12 id. 273, n.; 13 id. 233, 234; 19 Abb. N. 0. 406, 411; 21 id. 179, n.: 55 N.'Y. Super.'516: 18 Civ. Pro 332 390. 19 id. 165; 20 id. 383 131'n. Y 187,00 N. X. Super. 516; 18_Civ. Pro. 332, 390: 79 8

in, 179; 2 Misc. 260; 7 id. 519; 30 N. Y.' St R 851; 33 id. 148; 39 id. 18; 42 id. 865; 43 id. 438; 50 id. 767; 64 id. 374; 2 N. Y. Supp. 251. 700: 8 id. 295; 9 id. 495; 11 id. 661; 12 id. 74, 94; 14 id. 467; 17 id. 759; 21 id.

969; 27 id. 1004. 29 Publication, when to be commenced; service, when complete. The first publication in each newspaper designated in the order, or the service upon the defendant without the state, must be made within three months after the order is granted. For the purpose of reckoning the time within which the defendant must appear or answer, service by publication is complete 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 publication. Code Civ. Pro., § 441, as am'd L. 1877, c. 416. 49 N. Y. 84; 89 id. 397; 15 Abb. Pr. (N. S.) 96; 3 id. 396; 11 Abb. N. C. 104; 23 How. Pr.

516; 19 Civ. Pro. 165; 133 N. Y, 55; 73 Hun, 179; 7 Misc. 519; 43 N. Y. St. R. 439, 617: 44 id. 316; 64 id. 374; 9 N. Y. Supp. 160; 12 id. 95; 17 id. 759; 18 id. 69; 27 id.

1004.

30 Filing papers when service is by publication; notice to defendant. Where service is made by publication, the summons, 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: 66 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

Code Civ. Pro., § 442, as am'd L. 1877, c. 416. 14 How. Pr. 380; 16 id. 371; 8. c. 8 Abb. Pr. 177; 2 id. 315; 4 L. B. 36; 2 Civ. Pro. 314;

8. C. 64 How. Pr. 71; s. c. 4 L. B. 93; 8. c. 2 Civ. Pro. (McCarty) 250; 38 Hun, 152, 135; 8. c. 8 Civ. Pro. 303; 3 How. Pr. (N. S.) 121; 142 N. Y. 212; 58 N. Y. St. R. 654;

12 N. Y. Supp. 80. 31. Same: where service is without the state. Where service is made without the state, the papers specified in the last section must be previously 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.” Code Civ. Pro., § 443, as am'd L. 1877, c. 416. 66 How, Pr. 472; 3 How. Pr. (N. S.) 121; 4 L. B. 36; 2 Civ. Pro. 314; s. c. 64 How. Pr.

71; s. c. 4 L. B. 93; s. c. 2 Civ. Pro. (McCarty) 250; 30 Hun, 204, 207; 38 id. 152,

153; s. c. 8 Civ. Pro. 303; 142 N. Y. 212; 58 N. Y. St. R. 654; 12 N. Y. Supp. 80. 32 Proof of service. 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 affidavit of the person, who deposited or delivered it. Code Civ. Pro., § 444. 16 Barb. 347; 12 Abb. Pr. (N. S.) 171; 4 Abb. Pr. 352; 13 How. Pr. 43, 45; 27 N. Y. Supp.

1004. 33 Opening defaults; restitution; title of purchaser in good faith. 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 representative, 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 expressly prescribed by law, the defendant, or his representative, must, in like manner, upon good cause shown, and upon just terms, be allowed to defend, 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 defence 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 execution issued upon the same, shall not be affected thereby. Code Civ. Pro., § 445, as am'd L. 1877, c. 416. 58 N. Y. 609; 98 id. 4; 12 How. Pr. 445; 2 How. Pr. (N. S.) 134; 9 Paige, 368; 7 Civ.

Pro. 398: 36 Hun, 246; 18 Civ. Pro. 343; 132 N. Y. 363; 56 Hun, 242; 28 Abb. N. C. 175; 30 N. Y. St. R. 694; 44 id. 405; 64 id. 373; 9 N. Y. Supp. 594.

Consolidation of Actions. 34 In same court. Where two or more actions, in favor of the same plaintiff against the same defendant, for causes of action which may be joined, are pending in the same court, the court may, in its discretion, by order, consolidate any or all of them, into one action. Code Civ. Pro., § 817. 4 Duer, 664; 8. c. 2 Abb. Pr. 77; 3 Hill, 450; 4 id. 46; 7 id. 154; 19 Wend. 23; 3 id. 442;

9 i:. 451; 2 How. Pr. 40; 17 id. 228; 66 id. 404, 410; 5 Sandf. 665; 6 Abb. Pr. 326, 328; 8 Abb. Pr. (N. S.) 189; 12 Abb. N. C. 58; 1 Cow. 189; 1 L. B. 29; 90 N. Y, 312, 313; s. c. 11 Abb. N. C. 367; 19 W. D. 125, 126; 1 Civ. Pro. 364; 9 id. 141, 143; 87 Hun, 233; 28 Abb. N. C. 130; 34 N. Y. St. Ř. 580; 38 id. 106: 53 id. 437: 2 N. Y. Supp. 391; 11 id. 774; 12 id. 769; 14 id. 476; 23 id. 1075; 33 id. 836; 37 id. 474; 1 App. Div.

558; 67 N. Y. St. R. 425. 35 In different courts. Where one of the actions is pending in the supreme court, and another is pending in another court, the supreme court may, by order, remove to itself the action in the other court, and consolidate it with that in the supreme court. Code Civ. Pro., § 818. 1 City Ct. 464; 2 Civ. Pro. (McCarty) 194, n.; 12 Abb. N. C. 58; 2 How. Pr. (N. S.) 29;

28 Abb. N. C. 130; 3 N. Y. Supp. 533; 19 id. 244; 1 App. Div. 558. 36 By plaintiff. Where separate actions are commenced against two or more joint and several debtors, in the same court, and for the same cause of action, the plaintiff may, in any stage of the proceedings, consolidate them into one action. Code Civ. Pro., § 819. 4 Duer, 664; s. c. 2 Abb. Pr. 77; 23 Civ. Pro. 87; 28 Abb. N. C. 130.

Certain Actions for Wrongs, etc. 37 Civil and criminal prosecutions not merged. Where the violation of a right admits of a civil and also of a criminal prosecution, the one is not merged in the other. Code Civ. Pro., § 1899. 37 N. Y. 105; 45 Hun, 570; 56 id. 79; 9 N. Y. Supp. 89.

* This subject, 88 23–33.

38 Unauthorized bringing of action. If a person, vexatiously or maliciously, in the name of another but without the latter's consent, or in the name of an unknown person, commences or continues, or causes to be commenced or continued, an action or special proceeding, in a court, of record or not of record, or a special proceeding before a judge or a justice of the peace; or takes, or causes to be taken, any proceeding, in the course of an action or special proceeding in such a court, or before such an officer, either before or after judgment or other final determination; an action, to recover damages therefor, may be maintained against him, by the adverse party to the action or special proceeding; and a like action may be maintained by the person, if any, whose name was thus used. He is also guilty of a misdemeanor, punishable by imprisonment, not exceeding six months. Code Civ. Pro., $ 1900. 22 Civ. Pro. 225; 27 Abb. N. C. 253; 16 N. Y. Supp. 40, 689; 17 id. 946.

39 Same: measure of damages. In an action, brought by the adverse party, as prescribed in the last section, the plaintiff, if he recovers final judgment, is entitled to recover treble damages. In an action, brought by the person whose name was used, as prescribed in the last section, the plaintiff is entitled to recover his actual damages, and two hundred and fifty dollars in addition thereto. Code Civ. Pro., § 1901. 16 N. Y. Supp. 689; 17 id. 946.

40 Action by surety, trustee, etc., against principal for legal expenses. A surety, including a drawer or indorser, may recover, in an action against his principal; and an executor, administrator, or other trustee, may, where the trust estate is insufficient to reimburse him, recover, in an action against the beneficiary whom he represents; his reasonable costs and other expenses, incurred necessarily and in good faith, in the prosecution or defence, by the express or implied consent of the principal or beneficiary, of an action or special proceeding, relating to the demand secured, or to the trust estate, as the case requires. This section does not affect any special agreement relating to those costs and expenses. Code Civ. Pro., § 1916. 45 Hun, 353; s. c. 19 Abb. N. C. 354; 3 N. Y. Supp. 629; 8 id. 281; 22 id. 1074.

41. Lost instrument proved by parol; security. Where it appears, upon the trial of an action, that a negotiable promissory note or bill of exchange, upon which the action, or a counter-claim interposed in the action, is founded, was lost, while it belonged to the party claiming the amount due thereupon, he may prove the contents thereof, by parol or other secondary evidence, and may recover or set off the amount due thereupon, as if it was produced. But for that purpose, he must give to the adverse party a written undertaking, in a sum fixed by the judge or the referee, not less than twice the amount of the note or bill, with at least two sureties, approved by the judge or the referee, to the effect, that he will indemnify the adverse party, his heirs and personal representatives, against any claim by any other person, on account of the note or bill, and against all costs and expenses, by reason of such a claim. Code Civ. Pro., § 1917. 12 Wend. 173; 64 N. Y. 155; 16 id. 582; 54 id. 437; 3 E. D. Smith, 548, 557; 20 Hun, 161,

163; 18 id. 47: 5 Duer, 156; 6 Abb. N. C. 253; 2 City Ct. 293; 136 N. Y. 454; 49 N. Y.

St. R. 678; 27 N. Y. Supp. 284. 42 When no security. But where an action is prosecuted or defended by the people of the state, or by a public officer in their behalf, the people, or the public officer, may prove the contents of a lost note or bill of exchange, by parol or other secondary evidence, and may recover or set off the amount due thereupon, without giving any security to the adverse party. Code Civ. Pro., § 1918.

Actions by or against Certain County, Town and Municipal Officers. See post, $$ 79, 80.

43 By taxpayer against such officers to prevent waste. An action to obtain a judgment, preventing waste of, or injury to, the estate, funds, or other property of a county, town, city or incorporated village of the state, may be maintained against any officer thereof, or any agent, commissioner, or other person, acting in its behalf, either by a citizen, resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. This section does not affect any right of action in favor of a county, city, town, or incorporated village, or any public officer. Code Civ. Pro., § 1925, as am'd L. 1892, c. 524. 59 N. Y. 192: 64 id. 404. 410; 59 id. 21, aff'g 7 Lans. 352; 98 N. Y. 599, 603; 52 How. Pr.

196; s. c. 1 Abb. N. C. 157; 53 How. Pr. 289; 9 Hun, 355; 26 id. 161; 27 id. 390, 392; 33 id. 397; 34 id. 143, 145; 13 Daly, 19; 23 Civ. Pro. 116; 125 N. Y. 280; 126 id. 342; 129 id. 316; 130 id. 394; 131 id. 468; 60 Hun, 28; 65 id. 208; 71 id, 540; 74 id. 3; 5 Misc. 391; 6 id. 404; 34 N. Y. St. R. 874; 37 id. 491; 38 id. 610; 43 id. 666; 47 id. 527; 50 id. 908; 54 id. 387, 911; 56 id. 218; 63 id. 496; 2 N. Y. Supp. 371, 561; 3 id. 671; 4 id. 283; 8 id. 90: 10 id. 835: 14 id. 424; 22 id. 430; 24 id. 962, 1076; 68 N. Y. St. R. 633, 857;

3 App. Div. 176, 185. 44. By certain officers for cause of action accruing before commencement of their term. An action or special proceeding may be maintained, by the trustee or trustees of a school district; the commissioner or commissioners of highways of a town; the overseer or overseers of the poor of a town, village, or city; the supervisor of a town; the county superintendent or superintendents of the poor; or the supervisors of a county, upon a contract, lawfully made with those officers or their predecessors, in their official capacity; to enforce a liability created, or a duty enjoined, by law, upon those officers, or the body represented by them; to recover a penalty or a forfeiture, given to those officers, or the body represented by them; or to reccver damages for an injury to the property or rights of those officers, or the body represented by them; although the cause of action accrued before the commencement of their term of office. Code Civ. Pro., § 1926. 11 N. Y. 376, 390; 12 id. 52; 72 id. 583; 92 id. 570, 575; 99 id. 316, 324; 110 id. 234; 31

Hun. 512: 37 id. 42. 44: 47 id. 124: 22 W. D. 102: 58 Hun. 282: 74 id. 343: 87 id. 507: 34 N. Y. St. R. 445; 12 N. Y. 57, 63; 45 id. 686; 82 id. 22; 5 id. 67; 2 Sandt. 470; 14 Barb. 52, 58; 19 How. Pr. 373; 21 id. 182; 2 N. Y. Supp. 371, 561; 12 id. 339; 15 id.

487; 76 id. 517; 34 id. 286; 68 N. Y. St. R. 53; 89 Hun, 271. 45 Against such officers for same. An action or special proceeding may be maintained, against any of the officers specified in the last section, upon any cause of action, which accrues against them, or has accrued against their predecessors, or upon a contract made by their predecessors in their official capacity, and vithin the scope of their authority. Code Civ. Pro., $ 1927. 107 X. Y. 225, 226; 31 Hun, 512; 35 id. 114; 21 W. D. 338; 24 id. 3; 58 Hun, 282; 87 id.

507; 34 N. Y. St. R. 326, 445; 12 N. Y. 57, 63; 45 id. 686; 82 id. 22: 5 id. 67; 2 Sandt. 470; 14 Barb. 52, 58; 19 How. Pr. 373; 21 id. 182; 12 N. Y. Supp. 170, 339; 15 id. 487;

34 id. 286; 68 N. Y. St. R. 53. 46 Last two sections qualified. The last two sections do not apply to a case, where it is specially prescribed by law, that an action may be maintained, by or against the body, represented by an officer designated in those sections; but, in such a case, the prosecution or defence of the action, as the case may be, must be conducted by the persons then in office, who represent that body. Code Civ. Pro., & 1928. 87 Hun, 507; 43 N. Y. St. R. 666; 34 N. Y. Supp. 286.

47 Designation of such oficers in summons, etc.; non-joinder. In an action or special proceeding, brought pursuant to section 1926 or section 1927 of this act, the officer, by or against whom it is brought, must be described in the summons, or other process by which it is commenced, and in the subsequent proceedings therein, by his individual name, with the addition of his official title. An objection, growing out of an omission to join any officer, who ought to be joined with the others, must be taken by the answer, or, in a special proceeding, before the close of the case, on the part of the defendant: otherwise it is waived. Code Civ. Pro.. $ 1929. 4 Hill, 136; 5 id. 215; 1 Den. 279; 37 Hun, 42, 43; 107 N. Y. 225, 226.

48 Successor in office to be substituted upon notice. In such an action or special proceeding, the court must, in a proper case, substitute a successor in office, in place of a person made a party in his official capacity, who has died or ceased to hold office; but such a successor shall not be substituted as a defendant, without his consent, unless at least fourteen days' notice of the application for the substitution, has been personally served upon him. Code Civ. Pro., § 1930.

10 X, Y. 164; 29 Hun, 44, 45; 8. c. 16 W. D. 170; 5 Civ. Pro. 227; 24 W. D. 3.

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