TITLE 3. Id.; in a court not as against that defendant, pursuant to an order for service upon him. in that manner. § 400. The last section, excluding the provision requiring a publicaof record. tion or service of the summons within sixty days, applies to an attempt to commence an action in a court not of record, where the summons is delivered to an officer authorized to serve the same, within the city or town wherein the person resides or the corporation is located, as specified in that section; provided that actual service thereof is made with due diligence. Exception, when de State. § 401. If, when the cause of action accrues against a person, he is fendant is without the State, the action may be commenced within the time limwithout the ited therefor, after his return into the State. If, after a cause of action has accrued against a person, he departs from and resides without the State, or remains continuously absent therefrom for the space of one year or more, the time of his absence is not a part of the time, limited for the commencement of the action. But this section does not apply while a designation made as prescribed in section four hundred and thirty, or in subdivision second of section four hundred and thirty-two of this act remains in force. Id.; when a person entitled, itation ex a person § 402. If a person, entitled to maintain an action, dies before the exet, dies piration of the time limited for the commencement thereof, and the cause before lim-of action survives, an action may be commenced by his representative, pires. after the expiration of that time, and within one year after his death. id.; when § 403. If a person, against whom a cause of action exists, dies within liable, etc., the State, before the expiration of the time limited for the commencement of an action thereon, and the cause of action survives against his executor or administrator, an action therefor may be commenced after the expiration of that time, and within eighteen months after his death, but not afterwards, unless letters testamentary or letters of administration are not issued within the State, until the expiration of six months after his death; in which case the action may be commenced within one year after the letters are issued. dies within the State. In suits by aliens time § 404. Where a person is disabled to sue in the courts of the State, of disabil- by reason of either party being an alien subject or citizen of a country ity in case at war with the United States, the time of the continuance of the disabe deduct- bility is not a part of the time limited for the commencement of the action. of war to ed. Provision where has been reversed. § 405. If an action is commenced within the time limited therefor, judgment and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination. § 406. Where the commencement of an action has been stayed by etc., to be injunction, or by other order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time, limited for the commencement of the action. Stay by injunction, deducted. tions by a duct of an Certain ac- § 407. Where an injury results from the act or omission of a deputy principal, or agent, the time, within which an action to recover damages by reason for miscon- thereof, must be commenced by the principal, against the deputy or agent, etc. agent, must be computed from the time, when a judgment against the principal, for the act or omission, is first recovered by the aggrieved person; and a subsequent reversal or setting aside of the judgment does not extend the time. § 408. A person cannot avail himself of a disability unless it existed when his right of action or of entry accrued. TITLE 3. Disability must exist when right § 409. Where two or more disabilities co-exist, when the right of accrues. action or of entry accrues, the limitation does not attach, until all are If several removed. disabilities, no limitation until all re when the not be § 410. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must moved. be commenced, must be computed from the time, when the right to Provision make the demand is complete; except in one of the following cases: action can 1. Where the right grows out of the receipt or detention of money maintained or property, by an agent, trustee, attorney, or other person acting in a without fiduciary capacity, the time must be computed from the time, when the person, having the right to make the demand, has actual knowledge of the facts, upon which that right depends. 2. Where there was a deposit of money, not to be repaid at a fixed time, but only upon a special demand, or a delivery of personal property, not to be returned, specifically or in kind, at a fixed time or upon a fixed contingency, the time must be computed from the demand. demand. in case of tion. § 411. Where the persons, who might be adverse parties in an action, Provision have entered into a written agreement to submit to arbitration, or to submission refer the cause of action, or a controversy in which it might be avail- to arbitraable, or have entered into a written submission thereof to arbitrators; and before an award, or other determination thereupon, the agreement or submission is revoked, so as to render it ineffectual, by the death of either party thereto, or by the act of the person against whom the action might have been brought; or the execution thereof, or the remedy upon an award or other determination thereunder, is stayed by injunction, or other order procured by him from a competent court or judge; the time which has elapsed, between the entering into the written submission or agreement, and the revocation thereof, or the expiration of the stay, is not a part of the time, limited for the commencement of the action. when action is dis etc., after answer. § 412. Where a defendant in an action has interposed an answer, in Provision support of which he would be entitled to rely, at the trial, upon a defence or counterclaim then existing in his favor, the remedy upon which, continued, at the time of the commencement of the action, was not barred by the provisions of this chapter; and the complaint is dismissed, or the action is discontinued, or abates in consequence of the plaintiff's death; the time which intervened, between the commencement and the termination of the action, is not a part of the time, limited for the commencement of an action by the 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. taken, § 413. The objection, that the action was not commenced within the How obtime limited, can be taken only by answer. The corresponding objec-jection tion to a defence or counterclaim can be taken only by reply; except under this 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. chapter. which this § 414. The provisions of this chapter apply, and constitute the only Cases to rules of limitation applicable, to a civil action or special proceeding, chapter except in one of the following cases: 1. A case, where a different limitation is specially prescribed by law, a shorter limitation is prescribed by the written contract of the parties. applies. 75 TITLE 3. Mode of computing 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 periods of as otherwise specially prescribed therein, must be computed from the limitation. 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. TITLE 1. CHAPTER V. COMMENCEMENT OF AND PARTIES TO AN ACTION. TITLE I.-COMMENCEMENT OF 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; APPEAR- SECTION 416. Action to be commenced by summons; time when court acquires jurisdiction. 417. Requisites of summons. 418. Form of summons. 419. Service of copy complaint or notice with summons; consequence of failure. 420. Cases where such service must be made. 421. Appearance of defendant. 422. When defendant must answer at time of appearing. 423. Notice of no personal claim; effect of service thereof. 424. Effect of voluntary appearance. 425. Summons; when and by whom served. Sheriff's duty. 426. How personal service of summons made upon a natural person. 427, 428. Íd.; in certain cases of infancy, or lunacy, etc., not judicially declared. 429. Id.; when delivery of copy to lunatic dispensed with. 430. Designation, by a resident, of a person upon whom to serve a sum- 431. How personal service of summons made upon a domestic corporation. 433. Service of process, etc., to commence a special proceeding. 434. Proof of service of summons, etc.; how made. be com summons; time when § 416. A civil action is commenced by the service of a summons. Action to But from the time of the granting of a provisional remedy, the court menced by acquires jurisdiction, and has control of all the subsequent proceedings. mener Nevertheless, jurisdiction thus acquired is conditional, and liable to be court acdivested, in a case where the jurisdiction of the court is made depend-risdiction. ent, by a special provision of law, upon some act, to be done after the granting of the provisional remedy. ૪૨ 77 لعون TITLE 1. Requisites of sum mons. Cases service must be made. §1212 § 417. The summons must contain the title of the action specifying the court in which the action is brought, the names of the parties 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 and post-office address, which must be at a place within the State. If in a city, he must add the street, and the street number, if any, or other suitable designation of the particular locality. § 418. 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 an- § 419. 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 a notice is served with the summons, stating the sum of money for which judgment will be taken, and the case is one embraced in the next section. § 420. Judgment may be taken without application to the court, where such 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. Appear ance of defendant. When defendant must answer at time of ap § 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. 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 pearing. 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. Notice of § 423. Where a personal claim is not made against a defendant, a no person notice, subscribed by the plaintiff's attorney, setting forth the general object of the action, a brief description of the property affected by it, al claim; effect of |