to whom a copy of the summons may be delivered, as prescribed in the foregoing 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, designating 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.

L. 1864, ch. 411, 1 and 2 (6 Edm. 286).

2882. Last two sections qualified.-Where a person has been designated, as prescribed in either of the last two sections, and the designation has been revoked, or it appears, by affidavit or the return of the constable, to whom a summons has been duly delivered for service, that the person designated is dead, or has ceased to reside within the county; or that he cannot, after due diligence, be found within the county, so as to deliver a copy of the summons to him; the original summons, or the second or third summons, issued as prescribed in the next section, may be served as if the designation had not been made. Such a designation may be revoked by a writing, executed and filed in like manner as required for the purpose of making the designation.

New.

2883. Second and third summons; effect thereof.Where it appears, by the return of the constable, to whom a summons has been duly delivered for service, that it was not served, for any cause, a second summons may be issued by the same justice, in the same action, within twenty days after the first summons was issued: and, upon the like return thereof, a third summons may be issued, within twenty days after the second was issued. The second or the third summons, as the case may be, relates back to the time when the first summons was issued; and with respect to all proceedings before actual service, the service thereof has the same effect, as if the first summons had been seasonably

served. For the purpose of issuing a new summons, as prescribed in this section, a previous summons may be returned upon the sixth, or any subsequent day, before the return day thereof.

New.

S2884. Where name of defendant is unknown.Where the plaintiff is ignorant of the name, or part of the name of a defendant, that defendant may be desig nated in the summons, and in any other process or proceeding in the action, by a fictitious name, or by so much of his name as is known, adding a description, identifying the person intended. The person so designated must thereupon be regarded as a defendant in the action, and as sufficiently described therein for all purposes. When his name, or the remainder of his name, becomes known, the justice, before whom the action is pending, must amend the proceedings already taken, by the insertion of the true or full name, in place of the fictitious name, or part of a name; and all subsequent proceedings must be taken under the name so inserted.

2 R. S. 274,282 (2 Edm. 282).

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 manner in which, he served it. A con stable 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 R. S. 228, 16 (2 Edm. 244). Manning v. Johnson, 7 Barb. 455: Jackson v. Sherwood, 501d. 356; Reno v. Pinder, 20 N. Y. 298; Fogg v. Child, 13 Barb. 246; Roberts v. Burrill, 3 T. & C. 30; Van Kirk v. Wilds, 11 Barb. 520: N. Y. & E. R. R. Co. v. Purdy, 18 id. 574; Fitch v. Devlin, 15 id. 47: Hubbard v. Chapin, 28 How. 407; Waring v. McKinley, 62 Barb. 612; Sherwood r. Saratoga & W. R. R. Co., 15 id. 650; Robinson v. McManus, 4 Lans. 380; Perry v. Tynen, 22 Barb. 137; Haughey v. Wilson, 1 Hilt. 259; Hubbard v. Chapin, 28 How. 407; Stewart v. Smith, 17 Wend. 517; Foster v. Hazen, 12 Barb. 547: Hughes v. Mulvey, 1 Sandt. 92; Board of Excise v. Doherty, 16 How. 46: Tuttle v. Hunt, 2 Cow.436; Legg v. Stillman, id. 418; Potter v. Whittaker, 27 How. 10; Sperry v. Reynolds, 65 N. Y. 179; Wheeler v. Lampman, 14 Johns. 480; Wheeler v. N. Y. & H. R. R. R. Co., 24 Barb. 414.

ARTICLE SECOND.

APPEARANCE OF PARTIES.

SEC. 2886. Parties may appear in person or by attorney. 2887. Guardian ad litem for infant plaintiff.

2888. Id.; for infant defendant.

2889. When constable, etc., may not act as attorney.

2890. Authority of attorney; how proved.

2891. Plaintiff to prove his case.

2892. Defendant may offer to compromise; proceedings thereupon. 2893. Justice to wait one hour.

§ 2886. Parties may appear in person or by attor ney.-A party to an action before a justice of the peace, who is of full age, may appear and prosecute or defend the same, in person or by attorney, at his election, unless he has been judicially declared to be incompetent to manage his affairs.

2 R. S. 232, 39 and 41 (2 Edm. 248). Wilkinson v. Vorce, 41 Barb. 370; Kittle v. Baker, 9 Johns. 354; Phinney v. Earle, id. 352; Hughes r. Mulvey, 1 Sandf. 92; Sherwood v. Saratoga & Wash. R. R. Co., 15 Barb. 650; Sperry v. Reynolds, 65 N. Y. 179; Merkee v. Rochester, 13 Hun, 157; Heilner v. Barras, 3 C. R. 17; Cushingham v. Phillips, 1 E. D. S. 416: Andrews v. Thorp, id. 615: Bray v. Andreas, id. 37; Hogan v. Baker, 2 id. 22; Sprague r. Irwin, 27 How. 51; Watson r. Morton, id. 294; Day r. Wilber, 2 Cai. 134; Tiffany v. Gilbert, 4 Barb. 320; Pauling . Hudson Manufact'g Co., 2 E. D. Smith, 38; Wheeler v. Lampman, 14 Johns. 481; Hard e. Shipman, 6 Barb, 621; Clapp r. Graves, 26 N. Y. 418; Willins e. Wheeler, 28 Barb. 669; Osburne v. Gilbert, 52 id. 158.

§ 2887. Guardian ad litem for infant plaintiff. — Before a summons is issued in behalf of, or an issue is joined without summons by, an infant plaintiff, the justice must appoint a competent and responsible person, nominated by the plaintiff or his general guardian, to appear as his guardian for the purpose of the action. The written consent of the person so appointed must be filed with the justice, before his appointment. The guardian so appointed is responsible for the costs.

2 R. S. 232, 40 (2 Edm. 248).

§ 2888 Id.; for infant defendant.-After the service and return of a summons against an infant defendant, no other proceeding shall be taken in the action until a person has been appointed to appear as his guardian for the purpose of the action. Upon the nomination of the defendant, the justice must appoint a proper person for that purpose. If the defendant does not appear upon the return of the summous, or if he neglects or refuses to nominate, the justice may, on the application

of the plaintiff, appoint any proper person as his guardian. The written consent of the person, so appointed, must be filed with the justice before his appointment. The guardian so appointed is not responsible for any

costs.

Id., 42 and 43. Harvey v. Large, 51 Barb. 222.

$2889. When constable, etc., may not act as attorney-Subject to the provisions of sections 63 and 64 of this act, any person other than the constable who served the summons or the venire, or the law partner or clerk of the justice, may be the attorney for a party to an action before a justice of the peace.

Id., 44: L. 1864, ch. 421 (6 Edm. 295).

2890. Authority of attorney; how proved.— The attorney's authority may be conferred orally or in writing; but the justice shall not suffer a person to appear as an attorney, unless his authority is admitted by the adverse party, or proved by the affidavit or oral testimony of himself, or another,

Id., 45. Sperry r. Reynolds, 65 N. Y. 179; McMinn v. Richtmyer, 3 Hill, 236; Ackerman v. Finch, 15 Wend. 652; Treadwell v. Bruder, 3 E. D. Smith, 596; Roberts v. Burrell, 3 T. & C. 30; Fanning v. Trowbridge, 5 Hill, 428; Armstrong e. Craig, 18 Barb, 387; Underhill v. Taylor, 2 id. 348; Andrews v. Harrington, 19 id. 343; Warren . Helmer, 8 How. 419; Wilcox v. Clement, 4 Denio, 160; Lester v. Crary, 1 id. 81; Beaver v. Van Every, 2 Cow. 429; Bush v. Miller, 13 Barb. 481; Hirshfield v. Landman, 3 E. D. S. 208; Timmerman v. Morrison, 14 Johns. 369.

§ 2891. Plaintiff to prove his case. If a defendant fails to appear and answer, the plaintiff cannot recover without proving his case.

Code Proc., 64, subd. 8. Blair v. Bartlett, 75 N. Y. 150.

If

§ 2892. Defendant may offer to compromise; proceedings thereupon. Except in an action to recover a chattel, the defendant may, upon the return of the summons and before answering, file with the justice a written offer to allow judgment to be taken against him for a sum therein specified, with costs. there are two or more defendants, and the action can be severed, a like offer may be made by one or more of the defendants against whom a separate judgment may be taken. If the plaintiff thereupon, before taking any other proceeding in the action, files with the justice a written acceptance of the offer, the justice must render judgment accordingly. If an acceptance is not filed,

the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, and must pay the defendant's costs from that time.

Id., part of subd. 15. Beecher v. Kendall, 14 Hun, 327.

§ 2893. Justice to wait one hour.-Upon the return of a summons duly served, the justice must wait one hour, after the time specified therein for its return, unless the parties sooner appear.

2 R. S. 233, § 46 (2 Edm. 249), amended. Allen v. Stone, 9 Barb, 0; Pickert v. Dexter, 12 Wend. 150; Wilcox v. Clement, 4 Den. 160; Flint e. Gault, 15 Hun, 213; Barber r. Parker, 11 Wend. 51; Chamberlain . Lovet, 12 Johns. 217; Hunt v. Wickwire, 10 Wend. 102; Murling e. Grote, 3 Abb. 109; 1 Hilt. 116; Sherwood v. Sar. & W. R. R. Co., 15 Barb. 670; Sagendorph . Shult, 41 id. 102; Case v. Van Ness, 1 Johns. Cas. 243; Stew art v. Meigs, 12 Johns. 416; Stewart v. Smith, 17 Wend, 517: Lynsky Pendergast, 2 E. D. Smith, 43; Sprague . Shed, 9 Johns. 139: Green Angel, 13 id. 469; Stoddard v. Holmes, 1 Cow. 245; Everitt e. Lisk, 1C. R. 70; Cornell v. Bennett, 11 Barb. 657: Myer v. Fisher, 15 Jotins. 503; Wilde v. Dunn, 11 id. 458; Wilcox v. Clement, 4 Den. 160; Baldwin e. Carter, 15 id. 496.

ARTICLE THIRD.

ORDER OF ARREST.

SEC. 2894. Order of arrest; in what cases it may be granted.

2895. Id.; in what actions.

2896. Id.; upon what papers.

2897. Id.; its contents.

2898. Duty of constable.

2899. Return. When plaintiff notified must appear.

2900. Constable to keep defendant in custody.

2901. Motion to discharge from arrest.

2902. Effect of discharging defendant.

2903. When plaintiff must prove extrinsic facts.
2904. Privilege from arrest.

§ 2894. Order of arrest; in what cases it may be granted. At the time when the summons is issued, in an action specified in the next section, the justice who issues the summons must, upon the application of the plaintiff, and upon compliance by him with the provisions of this article, grant an order for the arrest of the defendant, in either of the following cases:

1. Where the defendant to be arrested is not a resi dent of the county.

2. Where the plaintiff is not a resident of the county; or, if there are two or more plaintiffs, where all are nonresidents thereof.

3. Where it appears to the satisfaction of the justice,