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8. 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.

New.

$415. Mode of computing periods of limitation. 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.

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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.

SEC. 416. Action to be cominenced by summons; time when court acquires jurisdiction.

417. Requisites of summons.

418. Form of summons.

419. Service of copy complaint or notice with summons; conse quence of failure.

420. Cases where such service must be made.

421.

422.

423.

424. 425.

426.

Appearance of defendant.

When defendant must answer before time to appear expires.
Notice of no personal claim; effect of service thereof.
Effect of voluntary appearance.

Summons; when and by whom served. Sheriff's duty.

How personal service of summons made upon a natural person.

427, 428. Id.; in certain cases of infancy, or lunacy, etc., not ju-
dicially declared.

429. Id.; when delivery 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. Id.; upon a foreign corporation.

433. Service of process, etc., to commence a special proceeding. 434. Proof of service of summons, etc.; how made.

§ 416. Action to be commenced by summons; time when court acquires jurisdiction.-A civil action is

commenced by the service of a summons.(1) 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 dependent, by a special provision of law, upon some act, to be done after the granting of the provisional remedy.(2)

Co. Proc., part of 127, and id. 139. See 399, ante, and 721, 821. 822, and 824, post. (1) Akin v. Albany, etc., B. R. Co., 14 How. 337; O'Hara v. Brophy, 24 id. 383; Leitch v. Wells, 48 N. Y. 585; Gibbs . Queens Ins. Co., 63 1d. 114: O'Brien v. Commercial Ins. Co., 38 N. Y. Supr. 517. (2) Waffle v. Goble, 53 Barb. 517.

$ 417. [Amended, 1879.] Requisites of summons.— The summons must contain the title of the action, spe. cifying the court in which the action is, brought,(1) the names of the parties to the action, (2) and, if it is brought in the supreme court, the name of the county in which the plaintiff desires the trial;(3) and it must be subscribed by the plaintiff's attorney ;(4) 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.(5)

Id., 128, remodelled. (1) Dix v. Palmer, 5 How. 233; James v. Kirkpatrick, id. 241; Walker v. Hubbard, 4 d. 154; Croden v. Drew, 3 Duer, 654; Webb. Mott, 6 How. 439. (2) Miller v. Stettiner, 7 Bosw. 692; s. c., 22 How. 518; Traver v. Eighth Ave. R. R. Co., 6 Abb. N. S. 46; Cooper. Burr, 45 Barb. 10, Bank . McGee, 20 N. Y. 355; Hill Thacter, 3 How. 407; Eagleston v. Son, 5 Robt. 640. (3) Merrill v. Grinuell, 10 How, 32; Hotchkiss v. Crocker, 15 id. 336; Davison v. Powell, 13 d. 288. (4) See ante, 55. Johnston v. Winter, 7 Alb. L. J. 135; Wearet. Slocum, 3 How. 397; Mut. Life Ins. Co. v. Ross, 10 Abb. 260. (3) Sup. Rule 13. Hurd v. Davis, 13 How. 57; Yorkes v. Peck, 17 id. 192; Demeit v. Leonard, 19 id. 182.

-The

§ 418. [Amended, 1877.] Form of summons. summons, exclusive of the title of the action and the subscription, must be substantially in the following form, the blanks being properly filled:

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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 attor ney within twenty days after the service of this sum mons, 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

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* See ante, $ 55.

The summons is deemed the mandate of the court. See Co. Proc., 129.

mons.

$419. [Amended, 1879.] Service of copy complaint or notice with summons; consequence of failure. A copy of the complaint may be served with the sumIf 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 summons, stating the sum of money for which judgment will be taken, and the case is one embraced in the next section. See post, § 1212.

ld. See McCoun v. N. Y. O., etc., 50 N. Y. 176; Ledwich v. McKim, id. 307.

$ 420. [Amended, 1877.] Cases where such service must be made.. 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 & 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 im plied 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 pereon; 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.

Id. See McCoun v. N. Y. C., etc., 50 N. Y. 176; Ledwich v. McKim, 43 id. 3 Vilmar v. Schall, 61 id. 564; Ross v. Terry, 63 d. 613; Taylor . Boot, 4 Abb. Dec. 382. "Impited" coutracts: Homan v. Earle, 13 Alb. N. S. 402.

§ 421. Appearance of defendant.--- 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 signa ture his office address, with the particulars prescribed *See post, 1212.

in section 417 of this act, concerning the office address of the plaintiff's attorney.

See Sup. Ct. Rule 14. Cooley v. Lawrence, 12 How. 176; Quin v. Tilton, 2 Duer, 648; Kelsey v. Covert, 15 How. 92; Hunt v. Brennan, 1 Hun, 213; Ogdensburgh, etc., v. Vermont, etc. 16 Abb. N. S. 249; Brett v Brown, 13 id. 295.

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§ 422. [Amended, 1877.] When defendant must answer before time to appear expires. 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. (1) 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.(2)

See Co. Proc., 130 and 143. (1) Mandeville v. Winne, 5 How, 461; McGown v. Leavenworth, 2 E. D. Smith, 24; Phillips v. Prescott, 9 How. 433; Lord v. Vandenburgh, 15 id. 368. (2) Ferris v. Soley, 23 How. 422 ; Walsh v. Kursheedt, 8 Abb. 418.

423. [Amended, 1877.] Notice of no personal claim; effect of service thereof. Where a personal elaim is not made against a defendant, a notice, subscribed by the plaintiff's attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects 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.

Id., 131. O'Hara v. Brophy, 24 How. 379; Benedict v. Warriner, 14 id. 570; Gallagher v. Egan, 2 Sandf. 742.

§ 424. Effect of voluntary appearance. A voluntary general appearance of the defendant is equivalent to personal service of the summons upon him.

Id., part of 139. See Brett v. Brown, 13 Abb. N. S. 295; Ferguson v. Crawford, 7 Hun, 25; Tracy v. Reynolds, 7 How. 327; Wheelock v. Lee, I Abb. N. 8. 24; Allen v. Malcolm, 12 id. 335; Mors v. Stanton, 51 N. Y. 649.

§ 426. Summons; when and by whom served Sheriff's duty. 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 plain

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