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PART III. Complaint need not be served with

thereon.

unreasona

$ 130. A copy of the complaint need not be served with the

summons. In such case, the summons must state where summons, the complaint is or will be filed; and if the defendant, within what to be twenty days thereafter, causes notice of appearance to be summons, given, and in person, or by attorney, demands in writing a and proceedings copy of the complaint, specifying a place within the state

where it may be served, a copy thereof must, within twenty
days thereafter, be served accordingly, and after such service
the defendant has twenty days to answer, but only one copy
need be served on the same attorney.

As amended by Laws of 1851, ch. 479.
19 N. Y., 413; 17 How. P. R., 137; 13 How. P. R., 129; 6 How. P. R.

298; 5 How. P. R., 263, 461; 8 Ab., 173, 418; 2 Ab., 15. Defendant $ 131. In the case of a defendant against whom no persobly defend nal claim is made, the plaintiff may deliver to such defendant ing, when to pay costs.

with the summons a notice subscribed by the plaintiff or his attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects specific, real, or personal property, and that no personal claim is made against such defendant, in which case no copy of the complaint need be served on such defendant unless within the time for answering, he shall, in writing, demand the same.

If a defendant, on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff.

As amended by Laws of 1851, ch. 479.

10 N. Y., 317; 8 B., 124; 4 How. P. R., 15. Notice of $ 132. In an action affecting the title to real property, the pendency

plaintiff at the time of filing the complaint, or at any time titieto feal afterwards, or whenever a warrant of attachment, under chapproperty. ter four, of title seven, part second, of this Code, shall be

issued, or at any time afterwards, the plaintiff, if the same be intended to affect real estate, may file with the clerk of each county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action, and the description of the property in that county affected thereby ; and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the parties thereto, and the time and place of recording the same. From the time of filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby.

And every person whose conveyance or incumbrance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were made a party to the

action. Actions, For the purposes of this section an action shall be deemed het hoording to be pending from the time of the filing of such notice, pro

of action

CHAP XI. rided, however, that such notice shall be of po avail, unless it shall be followed by the first publication of the summons on an order therefor, or by the personal service thereof on a defendant within sixty days after such filing.

And the court in which the said action is pending may, in its discretion, at any time after the action shall have become abated, as is provided in section number one hundred and twenty-one, on good cause shown, and on application of any party aggrieved,

after the action shall have become abated as is provided in section one hundred and twenty-one, direct the notice authorized by this section to be removed from record by the clerk of any county in whose office the same may have been filed.

Amended by Laws of 1851, ch. 479; 1857, ch. 723; 1858, ch. 306; 1862,

ch. 460.

7 How. P. R., 379; 8 Ab., 128; 6 Ab., 120. $ 133. The summons may be served by the sheriff of the Summons, county where the defendant may be found, or by any other served. person not a party to the action. The service shall be made, and the summons returned, with proof of the service, to the person whose name is subscribed thereto, with all reasonable diligence. The person subscribing the summons may, at his option, by an indorsement on the summons, fix a time for the service thereof, and the service shall then be made accordingly.

5 How. P. R., 112 ; 3 How. P. R, 284, 314, 327; 10 Ab., 263; 4 Ab.,

44; 2 Ab., 15. $ 134. The summons shall be served, by delivering a copy How morred 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 property 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;

3. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian; or if there be none within the state, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed;

3. If against a person judicially declared to be of unsound
mind, or incapable of conducting his own affairs in conse-
quence of habitual drunkenness, and for whom a committee
has been appointed, to such committee and to the defendant
personally;
4. In all other cases, to the defendant personally.

Amended by Laws of 1851, ch. 479; 1859, ch. 428.
31 B., 308; 30 B., 161; 28 B., 512; 8 B., 543; 20 How. P. R., 68; 18

How. P. R., 218; 13 How. P. R., 516; 10 How. P. R., 1 ; 6 How.
P. R., 194; 5 How. P. R., 96, 109, 183; 11 Ab., 452, 456; 10 Ab.,
309; 9 Ab., 104; 8 Ab., 243, 428; 4 Ab., 72; 2 Ab., 15.

and returned.

PART III. Publication when defendant cannot be found.

S 135. Where the person, on whom the service of the summons is to be made, cannot, after due diligence, be found within the state, and that fact appears by affidavit to the satisfaction of the court or a judge thereof, or of the county judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant, in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this state, such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases :

1. Where the defendant is a foreign corporation, has property within the state, or the cause of action arose therein;

2. Where the defendant, being a resident of this state, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent;

3. Where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action;

4. Where the subject of the action is real or personal property in this state, and the defendant has, or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein;

5. Where the action is for divorce, in the cases prescribed by law;

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 judge must also direct a copy of the summons and complaint to be forthwith 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 application, nor can with reasonable diligence be ascertained by him. 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.

T'he defendant against whom publication is ordered or his representatives, on application and sufficient cause shown, at any time before judgment, must be allowed to defend the action; and except in an action for divorce, the defendant, against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition on such terms as may be just; and if the defense be successful, and the judgment or any part thereof, have been collected, or otherwise enforced, such restitution may thereupon be com

cases.

pelled as the court directs; but the title to property sold "HAP. XI. under such judgment to a purchaser in good faith shall not be thereby affected. 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.

In actions for the foreclosure of mortgages on real estate, Proceed. already instituted, or hereafter to be instituted, if any party, deve te forte or parties, having any interest in, or lien upon such mort- mortgages gaged premises, are unknown to the plaintiff, and the resi- In certain dence of such party, or parties cannot, with reasonable diligence, be ascertained by him, and such fact shall be made to appear, by affidavit, to the court, or to a justice thereof, or to the county judge of the county where the trial is to be had, such court, justice, or county judge may grant an order that the summons be served on such unknown party or parties by publishing the same for six weeks, once in each week successively, in the state paper and in a newspaper printed in the county where the premises are situated, which publication shall be equivalent to a personal service on such unknown party or parties.

Amended by Laws of 1851, ch 479 ; 1858, ch. 306, 1860; ch. 459.
32 B., 607; 26 B., 151; 8 B., 543 ; 23 How. P. R., 516; 21 How. P. R.,

286; 20 How. P. R., 220; 18 How. P. R., 218, 248; 17 How. P. R.,
17, 108, 137; 16 How: P. R., 371; 14 How. P. R., 381; 11 How. P.
R., 277; 9 How. P. R., 521; How. P. R., 313, 329; 6 How. P. R.,
157; 5 How. P. R., 3, 45, 96, 196; 4 How. P. R., 151; 12 Ab., 13,
14, 360; 11 Ab., 40, 477; 9 Ab., 70; 8 Ab., 125, 184, 277; 4 Ab.,

348; 2 Ab., 315; 2 S. S. C., 305. S 136. Where the action is against two or more defendants Proceed. and the summons is served on one or more, but not on all of there are them, the plaintiff may proceed as follows:

1. If the action be against defendants jointly indebted upon only served. contract, he may proceed against the defendant served, unless the court otherwise direct, and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served, and if they are subject to arrest, against the persons of the defendants served; or

2. If the action be against defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants;

3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them or any of them alone.

As amended by Laws of 1851, ch. 479.
21 N. Y., 303; 32 B., 553, 557; 22 B., 650: 16 B., 42; 15 B., 178; 14

B., 540; 8 B., 667; 22 How. P. R., 266; 17 How. P. R., 309; 9 How.
P. R., 130; 8 How. P. R., 454; 7 How. P. R., 5; 6 How.P. R., 487;
13 Ab., 193, 328; Ab., 417; 8 Ab., 308; 4 Ab., 249; 3 Ab., 308;
1 Ab., 231.

several de fendants,

PART III. When ser

summons,

S 137. In the cases mentioned in section 135, the service of vicendemain the summons shall be deemed complete, at the expiration case of pub- of the time prescribed by the order for publication. lication.

23 How. P. R., 516; 7 How. P. R., 313; 6 How. P. R., 199; 8 Ab., 126. Service of $ 138. Proof of the service of the summons, and of the how proved. complaint or notice, if any, accompanying the same, must be

as follows:

1. If served by the sheriff, his certificate thereof; or
2. If by any other person, his affidavit thereof; or

3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the post-office, as required by law, if the same shall have been deposited; or

4. The written admission of the defendant.

In case of service, otherwise than by publication, the certificate, affidavit or admission must state the time and place of the service.

As amended by Laws of 1851, ch. 479.

9 Ab., 391. When ju $ 139. From the time of the service of the summons in a risdiction of action civil action, or the allowance of a provisional remedy, the acquired.

court is deemed to have acquired jurisdiction, and to have
control of all the subsequent proceedings. A voluntary
appearance of a defendant is equivalent to personal service
of the summons upon him.

As amended by Laws of 1851, ch. 479.
31 B., 308; 13 B., 259; 10 B, 259; 19 How. P. R., 54; 18 How. P. R.,

11; 17 How. P. R., 478, 500; 15 How. P. R., 8; 6 How. P. R., 47;
4 How. P. R., 340; 11 Ab., 452; 10 Ab., 309, 474; 9 Ab., 64, 166,
177, 391; 8 Ab., 273, 309; 2 Ab., 13.

TITLE VI.

OF THE PLEADINGS IN CIVIL ACTIONS.

CHAPTER I. The complaint.

II. The demurrer.
III. The answer.
IV. The reply.

V. General rules of pleading.
VI. Mistakes in pleading and amendments.

CHAPTER I.

THE COMPLAINT.
SEC. 140. Forms of pleadings heretofore existing abolished.

141. First pleading to be complaint.

142. Complaint, what to contain. Old forms $ 140. All the forms of pleading heretofore existing, are of pleading abolished; and hereafter, the forms of pleading in civil abolished.

actions, in courts of record, and the rules by which the suffi-
ciency of the pleadings is to be determined, are those pre-
scribed by this act.

As amended by Laws of 1852, ch. 392.
19 N. Y., 492; 13 N. Y., 314; 12 N. Y., 441; 11 N. Y., 351; 7 N. Y.,

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