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TITLE 1.

Order for

service of summons from su

preme court,

when de

fendant not

SECTION 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 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 of the county where the action is triable, upon satisfactory proof, by the affidavit of a person, not a party to the action, or by the return of the found, etc. 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

§ 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.

Cases in

§ 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.

§. 438. An order, directing the service of a summons upon a dewhich ser fendant, without the State, or by publication, may be made in either of the following cases:

summons

by publication, etc., may be ordered.

1. Where the defendant to be served is a foreign corporation; or being a natural person, is not a resident of the State; or where, after diligent inquiry, the defendant remains unknown to the plaintiff, or the plaintiff is unable to ascertain whether the defendant is or 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 four hundred and thirty 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 complaint demands judgment annulling a marriage, or for a divorce, or a separation.

5. Where 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.

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ART. 2.

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.

which

publica

§ 439. The order must be founded upon a verified complaint, show- Papers ing a sufficient cause of action against the defendant to be served, and n proof by affidavit of the additional facts required by the last section; order for and also, where the application is made upon the ground that the de- tion may fendant is a foreign corporation, or not a resident of the State, or in a case specified in subdivision fourth, fifth or seventh of the last section, that the plaintiff has been or will be unable, with due diligence, to make personal service of the summons.

be made.

be made;

order.

§ 440. The order may be made by a judge of the court, or the By whom county judge of the county where the action is triable. It must order may direct that service of the summons, upon the defendant named or contents of 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, without the State, upon the defendant personally, if he is of full age, or an infant of the age of fourteen years or upwards; or, if the defendant is a corporation, upon an officer thereof, specified in section four hundred and thirty-one or four hundred and thirtytwo 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.

lication

menced;

§ 441. The first publication, in each newspaper designated in the When puborder, or the service upon the defendant, without the State, must be must be made within three months after the order is granted. For the purpose comof reckoning the time, within which the defendant must appear or an- when serswer, service by publication is complete, upon the day of the last pub- vice lication pursuant to the order; and service made without the State is complete. complete, upon the expiration thereafter of a time equal to that prescribed for publication.

deemed

notice to

§ 442. Where service is made by publication, the summons, com- Papers to plaint, and order, and the papers upon which the order was made, must be filed; be filed with the clerk, on or before the day of the first publication; defendant. and a notice, subscribed by the plaintiff's attorney, and directed only to the defendant or defendants to be thus served, substantially in the following form, the blanks being properly filled up, must be subjoined to, and published with the summons:

TITLE II.

The foregoing summons is served upon you, by

"(naming the judge

day of

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"To publication, pursuant to an order of and his official title), "dated the filed with the complaint in the office of the clerk of § 443. Where service is made without the State, the papers specified made with in the last section must be previously filed; and a notice must be served with the summons, in all respects like the notice required by the last section, except that the words, "without the State of New York," must be substituted for the words, "by publication."

Id.; when service is

out the

State.

Proof of service.

Defendant when allowed to defend.

§ 444. Proof of the publication of the summons and notice must be made by the affidavit of the printer or publisher, or his foreman or principal clerk. Proof of deposit in the post-office, or of delivery, of a paper required to be deposited or delivered by the provisions of this article, must be made by the affidavit of the person, who deposited or delivered it.

§ 445. Where the summons is served, pursuant to an order made as prescribed in this article, and the defendant so served does not appear, he, or his representative, on application and sufficient cause shown, at any time before final judgment, must be allowed to defend the action; and, except in an action for divorce, or wherein the contrary is expressly prescribed by law, the defendant, or his representative, must, in like manner, upon good cause shown, and upon just terms, be allowed to defend, after final judgment, at any time within one year after personal service of written notice thereof; or, if such a notice has not been served, within seven years after the filing of the judgment-roll. If the defence is successful, and the judgment, or any part thereof, has been collected or otherwise enforced, such restitution may thereupon be compelled, as the court directs; but the title to property, sold, to a purchaser in good faith, pursuant to a direction contained in the judgment, or by virtue of an execution issued upon the same, shall not be affected thereby.

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SECTION 446. Who may be joined as plaintiffs.

447. Id.; as defendants.

448. Parties united in interest, when to be joined; when one or more may sue or defend for the whole.

449. Trustee of express trust, etc., may sue without person beneficially

/interested.

450. When married woman is a party.

451. When defendant or his name is unknown.

452. When court to decide controversy, or to order other parties to be

brought in.

453. Supplemental summons.

ART. 1.

§ 446. All persons having an interest in the subject of the action, and We may be joined in obtaining the judgment demanded, may be joined as plaintiffs, ex- as plaincept as otherwise expressly prescribed in this act.

tiffs.

fencants.

§ 447. Any person may be made a defendant, who has or claims an Id.; as deinterest in the controversy, adverse to the plaintiff, or who is a necessary party defendant, for the complete determination or settlement of a question involved therein; except as otherwise expressly prescribed in this act.

united in

§ 448. Of the parties to the action, those who are united in interest Parties, must be joined as plaintiffs or defendants, except as otherwise expressly interest, prescribed in this act. But if the consent of any one, who ought to be when to be joined; joined as a plaintiff, cannot be obtained, he may be made a defendant, when one the reason therefor being stated in the complaint. And where the more question is one of a common or general interest of many persons; or defend for where the persons, who might be made parties, are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.

may sue or

the whole.

interest to

etc., may

§ 449. Every action must be prosecuted in the name of the real party Party in in interest, except that an executor or administrator, a trustee of an sue trustee, express trust, or a person expressly authorized by statute, may sue, sue alone. without joining with him the person for whose benefit the action is prosecuted. A person, with whom or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section.

married

§ 450. In an action or special proceeding a married woman appears, When prosecutes, or defends, alone or joined with other parties as if she was woman is a single. It is not necessary or proper to join her husband with her as a party party in any action or special proceeding affecting her separate property.

defendant

unknown.

§ 451. Where the plaintiff is ignorant of the name or part of the When name of a defendant, he may designate that defendant, in the sum- or his mons, and in any other process or proceeding in the action, by a name is fictitious name, or by as much of his name as is known, adding a description, identifying the person intended. Where the plaintiff demands judgment against an unknown person, he may designate that person as unknown, adding a description, tending to identify him. In either case, the person intended is thereupon regarded as a defendant in the action, and as sufficiently described therein, for all purposes, including service of the summons, as prescribed in article second of the last title. When the name, or the remainder of the name, or the person, becomes known, an order must be made by the court, upon such notice and such terms as it prescribes, that the proceedings already taken be deemed amended, by the insertion of the true name, in place of the fictitious name or part of a name, or the designation as an unknown person; and that all subsequent proceedings be taken under the true name.

court to

§ 452. The court may determine the controversy, as between the When parties before it, where it can do so without prejudice to the rights of decide conothers, or by saving their rights; but where a complete determination troversy of the controversy cannot be had without the presence of other parties, other par

or to order

the court must direct them to be brought in. And where a person, not brought in a party to the action, has an interest in the subject thereof, or in real

TITLE 2. ties to be

Supplemental

property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.

§ 453. Where the court directs a new defendant to be brought in, Bummons. and the order is not made upon his own application, a supplemental summons must be issued, directed to him, and in the same form as an original summons; except that, in the body thereof, it must require the defendant to answer the original or the amended complaint, and the supplemental complaint, or either of them, as the case requires. And each provision of this chapter, relating to personal service, or a substitute for personal service of an original summons, applies to such a supplemental summons.

When per

for the same demand may

ARTICLE SECOND.

PARTIES SEVERALLY LIABLE.

SECTION 454. Persons liable for the same demand may be sued together.

455. Defendant so sued may apply for any relief.

456. Proceedings in actions against defendants severally liable.
457. Application of this article to defendants jointly liable.

§ 454. Two or more persons, severally liable upon the same written sons liable instrument, including the parties to a bill of exchange or a promissory note, whether the action is brought upon the instrument, or by a party be sued thereto to recover against other parties liable over to him; may, all or any of them, be included as defendants in the same action, at the option of the plaintiff.

together.

Defendant so sued

§ 455. The joinder of a person, as defendant in an action, with may apply another person, as prescribed in the last section, does not affect his right to any order or other relief, to which he would have been entitled, if he had been separately sued in the action.

for any relief.

Proceed

ings in action

fendants

severally

liable.

§ 456. Where a summons, issued against two or more defendants, alleged to be severally liable, is served upon some, but not upon all of against de- them, the plaintiff may proceed against those upon whom it is served, as if they were the only defendants named therein. Where it is served upon all of them, the plaintiff may take judgment against one or more of them, where he would be entitled to judgment, if the action was against him or them alone. Where judgment is so taken, the clerk must, upon the plaintiff's application, enter an order, directing that the action be severed, and that the plaintiff may proceed against the other defendants. In any subsequent proceeding, the plaintiff may use, together with a certified copy of such an order, a copy of a paper constituting a part of the judgment-roll, with like effect as if it was the original.

Applica

tion of this

§ 457. The last three sections do not affect a defence or other objecarticle to tion of a defendant, growing out of the failure to join in the action defendants two or more persons jointly liable; and, as regards the other parties to the action, persons jointly liable are regarded as one party, for every purpose contemplated by those sections.

jointly

liable.

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