poration; and an attempt was made to commence the action against ART. 2. 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 $439. The plaintiff, when he applies for the order, must present to Papers the judge a verified complaint, showing the cause of action for which upon judgment is demanded against the defendant to be served. Proof by order for affidavit must also be made of the additional facts required by the publication last section. may be made. be made; order. 144 Hun 73 $440. The order may be made by a judge of the court, or the county By whom judge of the county where the action is triable. It must direct that order may service of the summons, upon the defendant named or described in the contents of 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 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 four hundred and thirty-one 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. must be menced; $441. The first publication, in each newspapor designated in the when pub- 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: "To The foregoing summons is served upon you, by publication, pursuant to an order of and his official title), "dated the day of filed with the complaint in the office of the clerk of "(naming the judge 18 and at 443. Where service is made without the State, the papers specified Id.; when in the last section must be previously filed; and a notice must be made with service is TITLE II. out the State. Proof of service. Defendant when allowed to defend. served with the summons, in all respects like the notice required by t last section, except that the words, "without the State of New York must be substituted for the words, "by publication". § 444. Proof of the publication of the summons and notice must made by the affidavit of the printer or publisher, or his foreman or pr cipal clerk. Proof of deposit in the post-office, or of delivery, of a pa required to be deposited or delivered by the provisions of this arti must be made by the affidavit of the person, who deposited or del ered it. § 445. Where the summons is served, pursuant to an order mad prescribed in this article, and the defendant so served does not appe he, or his representative, on application and sufficient cause shown. any time before final judgment, must be allowed to defend the acti and, except in an action for divorce, or wherein the contrary is pressly prescribed by law, the defendant, or his representative, m in like manner, upon good cause shown, and upon just terms, be allo to defend, after final judgment, at any time within one year after 1 sonal service of written notice thereof; or, if such a notice has not served, within seven years after the filing of the judgment-roll. If defence is successful, and the judgment, or any part thereof, has l collected or otherwise enforced, such restitution may thereupon be pelled, as the court directs; but the title to property, sold, to a chaser in good faith, pursuant to a direction contained in the judgm or by virtue of an execution issued upon the same, shall not be affe thereby. SECTION 446. Who may be joined as plaintiffs. 447. Id.; as defendants. 448. Parties united in interest, when to be joined; when one or mor 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 who may be joined in obtaining the judgment demanded, may be joined as plaintiffs, ex- as plaincept as otherwise expressly prescribed in this act. tiffs. fendants. §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 joined; may sue or the whole. § 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 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 or 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. $449. Every action must be prosecuted in the name of the real party Trustees of in interest, except that an executor or administrator, a trustee of an trust, etc., express trust, or a person expressly authorized by statute, may sue, may sue without joining with him the person for whose benefit the action is prosecuted. A person, with whom or in whose name, a contract is beneficialmade for the benefit of another, is a trustee of an express trust, within ested. the meaning of this section. express without person ly inter riedwoman $450. In an action or special proceeding a married woman appears, When marprosecutes, or defends, alone or joined with other parties as if she was single. fendant or § 451. Where the plaintiff is ignorant of the name or part of the When dename of a defendant, he may designate that defendant, in the sum- his name is mons, and in any other process or proceeding in the action, by a ficti- unknown. tious 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; and for that purpose, an unknown person is deemed not to be a resident of the State. 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. decide con $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 court to others, 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 |