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of the summons, as in courts of record. It has been provided, in § 400, that the delivery of the summons to the proper officer shall be deemed equivalent to the commencement of an action, for the purpose of saving the statute of limitations. The insertion of the words, "joinder of issue," is in conformity with the decision in Lester v. Crary, 1 Denio, 81.](")
§ 2877. The summons must be directed, generally, to any con- Contents stable of the county where the justice resides; and it must command mous. him to summon the defendant to appear before the justice, at a place specified therein, to answer the complaint of the plaintiff in a civil action. Where the summons is accompanied with an order to arrest the defendant, it must be made returnable immediately upon the arrest of the defendant, within twelve days after the day when it was issued; in every other case, it must be returnable at a time. therein specified, not less than six nor more than twelve days after the day when it was issued.
[Id., § 14, amended by omitting in the first sentence before the word "place," the words "time and;" and before the words, “to answer." the phrase, not less than six nor more than twelve days from the date of the same"; also by substituting "the complaint of the plaintiff in a civil action" for "the plaintiff in the plea, in the same summons to be mentioned," in accordance with the decision in Smith v. Joyce, 12 Barb., 21; Reno v. Pinder, 20 N. Y., 298, and other cases; and by the addition of the last sentence. The general repealing act of 1880, also abolishes the provisions of the non-imprisonment act for a short summons or a short attachment, where one of the parties is a non-resident. L. 1831, ch. 300, §§ 32, 33 (3 R. S., 5th ed., 462; 4 Edm. 472). Where a defendant is arrested, justice to him, as well as to the plaintiff, requires that the summons should be returnable immediately; but the commissioners thought, and most persons who are familiar with the proceedings in justices' courts, wil' agree with them, that the provisions for short process, where the action was commenced in the ordinary way, had survived their utility, since the facilities of communication between different portions of the State have become so great. It very rarely happens, that an action is tried upon the return day of a short summons. The former multiplicity of forms of process was, as already stated, an evil, which has been remedied by abolishing all those forms, which could be dispensed with. For general provisions, as to the form of summons and other mandates, see § 22 and § 3135, post. ](')
§ 2878. Personal service of the summons must be made by de- Service of livering a copy thereof to the defendant; except 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 summons is personal, it must be made at least six days before the time of ap
Id.; special provision
pearance specified therein; except where it is accompanied with an order of arrest.
[Substituted for id., § 15, as amended by L. 1876, ch. 277. In this section the first exception has been extended to cover cases like those under §§ 2880-2882, post; the provisions for a service by leaving a copy at the defendant's last place of abode have been omitted, and the last exception has been added. Service by copy had generally become an idle ceremony, since the repeal of the provision of the R. S., allowing a warrant to be issued upon the return of a summons served by copy; except, perhaps, that it might occasionally have saved the statute of limitations, within the ruling of Cornell v. Moulton, 3 Denio, 12. The provisions of § 2883, post, render it unnecessary to preserve that mode of service for such a purpose. As a service, either personally, or in one of the modes provided by special statutes as a substitute for personal service, is ordinarily necessary before a judgment can be taken, the mode of service by leaving a copy has been abrogated. Under §§ 2877 and 2898, post, an order of arrest may be executed at any time before the return day of the summons; and, for obvious reasons, it is not only proper, but necessary, that the same rule should govern the service of the summons. No special provision is necessary for the service of a summons accompanied with a warrant of attachment, or a requisition in repievin; because it is provided, in articles 4 and 5, that the warrant or requisition must be executed six days before the return day. Post, §§ 2910 and 2922. Where it is not otherwise specially prescribed by law, as is the case in this section, time is to be reckoned in accordance with § 788, which is made applicable by § 3347, subd. 6, as is also § 787 and § 826, though the latter sections will probably be of no use at present in a justice's court.](")
§ 2879. 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 corporation, by whatever official title he is called.(')
[Co. Proc., § 64, last clause of subd. 15, and L. 1847, ch. 470, § 45, last clause (4 Edm., 589), consolidated, and verbally amended. The latter provision was not repealed by the Code of Procedure. Wheeler
v. N. Y. and H. R. R. Co., 24 Barb., 414. It is, however, not to be found in the 5th edition of the R. S. See § 2869, subd. 4.]
§ 2880. Where the defendant to be served is a domestic railroad relating to corporation, and no officer thereof resides in the county, to whom a copy of the summons may be delivered, as prescribed in the last
(a) Sections 787 and 788 are on page 210; section 826 on page 214; and section 3347 on page 360.
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 instrument, desigi aing 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.
[L 1854, ch. 282, §§ 14 and 15 (2 R. S., 5th ed., 697; 3 Edm., 645), consolidated, and amended verbally. The clause making a certified copy of the designation evidence is covered by $ 933. It was held, in Wheeler V. N. Y. and H. R. R. Co., 24 Barb., 414, that the return of the constable is evidence, not only of the official character of the person served, but also of the facts which justify such service. See § 2869, subd. 4, ante.](^)
ing to ex
§ 2881. Where the defendant to be served is a corporation, asso- Id.; relatciation, partnership, or person, doing business in the State as an express press com company, and no person resides in the county 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), consolidated, and amended so as to correspond to the last section. See also § 2869, subd. 4, ante.]
§ 2882. Where a person has been designated, as prescribed in Last two either of the last two sections, and the designation has been revoked, qualified. 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 de13
summons; effect thereof.
liver a copy
[New. Prepared in order to supply deficiencies in the former statute.]
§ 2883. 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. Some such provision will frequently be necessary, in order to prevent an inconvenience in the working of several of the amendments to the former legislation, effected in this chapter. One case, where this section will be useful, is suggested in the note to § 2878, ante; but there are many others. For instance, without such a provision, the action will be discontinued, and new papers must be prepared, where an order of arrest, an attachment, or a requisition in replevin accompanies a summons, and there is a failure to serve the summons within the time allowed for that purpose. On the other hand, it is easy to see, that a power to revive indefinitely an abortive action, will be open to abuse. We endeavored so to frame the section, as to avoid both these dangers.]
§ 2884. Where the plaintiff is ignorant of the name, or part of defendant the name of a defendant, that defendant may be designated 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, Part 3, ch. 2, tit. 4, § 282 (3 R. S., 5th ed., 461; 2 Edm., 282), amended so as to correspond to the provisions of this act, which relate to the same subject in the principal courts of record. ]
§ 2885. A constable, who serves a summons, must, at or before Return of 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 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 R. S., 228, Part 3, ch. 2, tit. 4, § 16 (3 R. S., 5th ed., 428; 2 Edm., 244), amended by inserting the clause, "at or before the time when the same is returnable," by not requiring the return to be upon. the summons; and by adding the last sentence. For the rule as to a defective return, see Sperry v. Reynolds, 65 N. Y., 179.]
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 hereupon. 2893. Justice to wait one hour.
person or by at
§ 2886. A party to an action before a justice of the peace, who Parties is of full age, may appear and prosecute or defend the same, in person person or by attorney, at his election, unless he has been judicially declared torney. to be incompetent to manage his affairs.
[2 R. S., 232, Part 3, ch. 2, tit. 4, § 39, and first clause of § 41 (3) R. S., 5th ed., 432; 2 Edm., 248), consolidated, and amended so as to correspond to the provisions of this act, which relate to the same subject in the principal courts of record. See 42 N. Y. 26, and 65 N. Y., 180.]