defendant, to recover for the cause of action so interposed as a defence, or to interpose the same defence in another action brought by the same plaintiff, or a person deriving title from or under him. § 413. The objection, that the action was not commenced within the time limited, can be taken only by answer. The corresponding objection® to a defence or counterclaim can be taken only by reply; except where a reply is not required, in order to enable the plaintiff to raise an issue of fact, upon an allegation contained in the answer. § 414. The provisions of this chapter apply, and constitute the only rules of limitation applicable, to a civil action or special proceeding, except in one of the following cases: 1. A case, where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties. 2. A cause of action or a defence which accrued before the first day of July, eighteen hundred and forty-eight. The statutes then in force govern, with respect to such a cause of action or defence. 3. A case, not included in the last subdivision, in which a person is entitled, when this act takes effect, to commence an action, or to institute a special proceeding, or to take any proceeding therein, or to pursue a remedy upon a judgment, where he commences, institutes, or otherwise resorts to the same, before the expiration of two years after this act takes effect; in either of which cases, the provisions of law applicable thereto, immediately before this act takes effect, continue to be so applicable, notwithstanding the repeal thereof. 4. A case, where the time to commence an action has expired, when this act takes effect. The word "action," contained in this chapter, is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein, or in an action. $415. The periods of limitation, prescribed by this chapter, except as otherwise specially prescribed therein, must be computed from the time of the accruing of the right to relief by action, special proceeding, defence, or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special proceeding. CHAPTER V. COMMENCEMENT OF AND PARTIES TO AN ACTION. TITLE I-COMMENCEMENT OF AN ACTION. TITLE II-PARTIES TO AN ACTION. TITLE I. Commencement of an action. ARTICLE 1. The summons and accompanying papers; personal service thereof; appearance of the defendant. 2. Substitutes for personal service in special cases. ARTICLE FIRST. THE SUMMONS AND ACCOMPANYING PAPERS: PERSONAL SERVICE THEREOF; APPEARANCE OF THE DEFENDANT. 415. Action to be commenced by summons; time when court acquires jurisdiction. § 417. Requisites of summons. 419. Service of copy complaint or no 427, 428. Id.; in certain cases of in 429. fancy, or lunacy, etc., not ju dicially declared. Id.; when devery of copy to lunatic dispensed with. 430. Designation, by a resident, of a person upon whom to serve a summons during his absence; effect and revocation thereof. 431. How personal service of summons made upon a domestic corporation. 432. 1d.; upon a foreign corporation. 433. Service or process, etc., to commence a special proceeding. 434. Proof of service of summons, etc.; how made. § 416. 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. Nevertheless, jurisdiction thus acquired is conditional, and liable to be divested, in a case where the jurisdiction of the court is made dependant, by a special provision of law, upon some act, to be done after the granting of the provisional remedy. § 417. Lam'd 1879.] The summons must contain the title of the action, specifying the court in which the action is brought, the names of the par ties 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. 418. [am'd 1877.] 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 failure to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint. Dated The summons is deemed the mandate of the court. § 419. Lam'd 1879.] A copy of the complaint may be served with the summons. If a copy of the complaint is not served with the summons, the plaintiff cannot take judgment by default without application to the court, unless either the defendant appears, or by a notice is served with the sum mons, stating the sum of money for which judgment will be taken, and the case is one embraced in the next section. $ 420. Lam'd 1877.] Judgment may be taken without application to the court, where the complaint sets forth one or more causes of action, each consisting of the breach of an express contract to pay, absolutely or upon a contingency, a sum or sums of money, fixed by the terms of the contract, or capable of being ascertained therefrom, by computation only; or an express or implied contract to pay money received or disbursed, or the value of property delivered, or of services rendered by, to, or for the use of, the defendant or a third person; and thereupon demands judgment for a sum of money only. This section includes a case, where the breach of the contract, set forth in the complaint, is only partial; or where the complaint shows that the amount of the plaintiff's demand has been reduced by payment, counterclaim, or other credit. § 421. The defendant's appearance must be made by serving upon the plaintiff's attorney, within twenty days after service of the summons, exclusive of the day of service, a notice of appearance, or a copy of a demurrer or of an answer. A notice or pleading, so served, must be subscribed by the defendant's attorney, who must add to his signature his office address, with the particulars prescribed in section four hundred and seventeen of this act, concerning the office address of the plaintiff's attorney. § 422. [am'd 1877.] A defendant, upon whom the plaintiff has served, with the summons, a copy of the complaint, must serve a copy of his demurrer or answer upon the plaintiff's attorney, before the expiration of the time, within which the summons requires him to answer. If a copy of the complaint is not so served, a notice of appearance entitles him only to notice of the subsequent proceedings, unless within the same time he demands the service of a copy of the complaint, as prescribed in section four hundred and seventy nine of this act. § 423. Lam'd 1877.] Where a personal claim is not made against a defendant, a notice, subscribed by the ptaintiff's attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affect specific real or personal property, and that a personal claim is not made against him, may be served with the summons. If the defendant so served, unreasonably defends the action, costs may be awarded against him. §424. A voluntary general appearance of the defendant is equivalent to personal service of the summons upon him. § 425. 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. § 426. 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 ne is employed. 2. If the defendant is a person judicially deciated to be incompetent to manage his affairs, in consequence of lunacy, idiocy, or habitual drunken ness, and for whom a committee has been appointed, to the committee, and also to the defendant in person. 3. [added 1879. 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. § 427. 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. § 428. [am'd 1877.] 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 summons 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. 429. Where the defendant has been judicially declared to be incompetent to manage his affairs, in consequence of lunacy, and 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 lesson 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. § 430. 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 proreeding, 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 designa. tion, notwithstanding the return of the latter to the United States. § 431. 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, alderman, [aldermen] and commonalty of the city of New York, to the mayor, comptroller, or counsel to the eorporation. 2. If the action is against any other city, to the mayor, treasurer, counsel, attorney, or clerk; or, if the city lacks either of those officers, to the officer performing 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. § 432. [am'd 1877.] Personal service of the summons, upon a defendant, being a foreign corporation, must be made by delivering a copy thereof, within the State, as follows: 1. To the president, treasurer, or secretary; or, if the corporation lacks either of those officers, to the officer preforming corresponding functions, under another name. 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 desiguation must specify a place, within the State, as the office or residence of the person designated; and, if it is within the 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 a 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 has not been revoked, is presumtive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it. 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. § 433. 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 provisions for the service thereof is otherwise made by law. 8434. 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 certifi cate thereof. 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, |