corporation. Id.; upon a foreign corporation. of the city of New-York, to the mayor, comptroller, or counsel to the corporation. 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. The first subdivision of this section is taken from section 4 of chapter 379 of the Laws of 1860; the second subdivision is new; and the third is taken from subdivision 1 of section 134 of the Code of Procedure. See Wait's Code, 165, 166; 1 Wait's Pr. 512. § 432. [Amended, 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 performing 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, vicepresident, or other acting head, accompanied with the written consent of the person designated, and filed in the office of the secretary of State. The designation must specify a place, within the State, as the office or residence of the person designated; and, if it is within a 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 An exemplified copy of a designation so filed, accompanied with a certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it. 3.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. This section is framed in part from section 134 of the Code of Procedure; and in part from sections 1-3 of chapter 279 of the Laws of 1855; 3 Edm. St. 685. See Wait's Code, 166, 167; 1 Wait's Pr. 512. At common law, process against a corporation must be served on its head or principal officer, within the juris- process, commence § 433. The provisions of this article, relating to the mode of Service of service of a summons, apply likewise to the service of any process or etc., to other paper, whereby a special proceeding is commenced in a court, a special proceedor before an officer, except a proceeding to punish for contempt, and Ing. except where special provision for the service thereof is otherwise made by law. New. See Laws of 1855, ch. 279; 3 Edm. St. 685, § 4. § 434. Proof of service, as prescribed in this article, must be Proof of made by affidavit, except as follows: service of summons, etc.; how 1. If the service was made by the sheriff, it may be proved by made. his certificate 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, and certified in like manner as a deed to be recorded in the county, or accompanied with the affidavit of a person, other than the plaintiff, showing that the signature is genuine. A certificate, admission, or affidavit of service of a summons, must state the time and place of service. A written admission of the service of a summons, or of a paper accompanying the same, imports, unless otherwise expressly stated therein, or otherwise plainly to be inferred from its contents, that a copy of the paper was delivered to the person signing the admission. Taken from 138 of the Code of Procedure, omitting the provisions as to proof of service by publication. See Wait's Code, 178-180, § 138; 1 Wait's Pr. 541-549. Although the statute requires that an admission of service shall state the time of service, yet, if such time is stated as of a date prior to the day of actual service, and judgment is entered within twenty days from the ARTICLE SECOND. SUBSTITUTES FOR PERSONAL SERVICE IN SPECIAL CASES. SEC. 435. Order for service of summons from supreme court, when defendant not found, etc. 436. How service must be made. Order for service of from supreme court, defendant etc. SEC. 437. Papers to be filed; proof of service. 438. Cases in which service of summons by publication, etc., may be ordered. 439. Papers upon which order for publication may be made. 440. By whom order may be made; contents of order. 441. When publication must be commenced; when service deemed complete. 442. Papers to be filed; notice to defendant. 443. Id.; when service is made without the State. 444. Proof of service. 445. Defendant when allowed to defend. § 435.* Where a summons is issued in the supreme court, an order summons for the service thereof, upon a defendant residing within the State, may be made by the court, or a judge thereof, or the county judge when of the county where the action is triable, upon satisfactory proof, by not found, the affidavit of a person, not a party to the action, or by the return of the sheriff of the county where the defendant resides, that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his sojourn cannot be ascertained, or, if he is within the State, that he avoids service, so that personal service cannot be made. How service must Taken from ch. 511 of the Laws of 1853. See 4 Edm. St. 598; Wait's Code, 175, 176; 1 Wait's Pr. 532, 535. $436.* The order must direct, that the service of the summons be be made. made, by leaving a copy thereof, and of the order, at the residence of the defendant, with a person of proper age, if upon reasonable application, admittance can be obtained, and such a person found who will receive it; or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant's residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper, addressed to him, at his place of residence, in the post-office at the place where he resides. Papers to be filed; proof of service. Taken from ch. 511, Laws of 1853; 4 Edm. St. 598. See Wait's Code, 175, 176; 1 Wait's Pr. 534. § 437. The order, and the papers upon which it was granted, must be filed, and the service must be made, within ten days after the order is granted; otherwise the order becomes inoperative. On filing an affidavit, showing service according to the order, the summons is deemed served, and the same proceedings may be taken thereupon, as if it had been served by publication, pursuant to an order for that purpose, made as prescribed in the next section. Substantially new. See Wait's Code, 175, 176; 1 Wait's Pr. 535. which ser § 438. An order, directing the service of a summons upon a Cases in defendant, without the State, or by publication, may be made in vice of either of the following cases: summons by publication, 1. Where the defendant to be served is a foreign corporation; etc., may or, being a natural person, is not a resident of the State. 2. Where the defendant, being a resident of the State, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons; or keeps himself concealed therein, with like intent. 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 430 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 defendant is a resident of the State, and the complaint demands judgment annulling a marriage, or for a divorce, or a separation. 5. Where the defendant is a resident of the State, or a domestic corporation, and 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. 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. 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. This section is a modification of 135 of the Code of Procedure, combined with § 1 of ch. 157, Laws of 1869; 7 Edm. St. 426; and certain new provisions designed to provide for an omission to comply with § 430, ante, and to meet the case provided for in § 399, ante. Wait's Code, 170 175; 1 Wait's Pr. 516. See Steinle v. be ordered. upon § 439. [Amended, 1877.] The plaintiff, when he applies for Papers the order, must present to the judge a verified complaint, showing which the cause of action for which judgment is demanded against the publica order for tion may be made. By whom order may be made; contents of order. When publica tion must be com defendant to be served. Proof, by affidavit, must also be made of the additional facts required by the last section. The first sentence of this section is Code, 170-175; 1 Wait's Pr. 518; new; the last is taken from § 135 of Smith v. Matson, 47 How. 118. the Code of Procedure. See Wait's § 440. 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 of 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, upon the defendant personally, without the State; or, if the defendant is a corporation, upon an officer thereof, specified in section 431 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 more 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. Taken from § 135 of the Code of Procedure. See Wait's Code, 170175; 1 Wait's Pr. 523; personal service of the summons and complaint can be made out of the State only when publication is ordered. Brooklyn Trust Co. v. Bulmer, 49 N. Y. (4 Sick.) 84. § 441. [Amended, 1877.] The first publication in each newspaper designated in the order, or the service upon the defendant menced; without the State, must be made within three months after the order service! is granted. For the purpose of reckoning the time within which complete. the defendant must appear or answer, service by publication is com when deemed Papers to be filled: plete 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 Pro., §§ 135, 137. See Wait's Brooklyn Trust Co. v. Bulmer, 49 N. § 442. [Amended, 1877.] Where service is made by publicanotice to tion, the summons, complaint, and order, and the papers upon which the order was made, must be filed with the clerk, on or before the defend ant. |