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thereof, or the expiration of the stay, is not a part of the time, limited for the commencement of the action. New.
$ 412. Provision when action is discontinued, etc., after answer. - Where a defendant in an action has interposed an answer, in support of which he would be entitled to rely, at the trial, upon a defence or counter claim then existing in his favor, the remedy upon which at the time of the commencement of the action, was not barred by the provisions of this chapter; and the com plaint is dismissed, or the action is discontinued, or abates in consequence of the plaintiff's death ; the time which intervened, between the colomencement and the termination of the action, is not a part of the time, limi ted for the commencement of an action by the defend ant, to recover for the cause of action so interposed as s defence, or to interpose the same defence in another ac tion brought by the same plaintiff, or a person deriving title froin or under him.
$ 413. How objection taken, under thi chapter. -The objection, that the action was not commenced within the time limited, can be taken only by answer. The corresponding objection to a defence or counter. claim can be taken only by reply; except where a reply is not required, in order to enable the plaintili to raise an issue of fact, upon an allegation contained in the answer.
Co. Proc., part of 74. Williams v. Wille, 15 Abb. N. S. 11; Sands v. St. John, 36 Barb. 628; 8. c., 23 How. 140; Vuorhies v. Voorhies 24 Barb. 150; Baldwin v. Martin, 14 Abb. N. S. 9; Selover v. Coe, 63 N. Y. 438.
$ 414. Cases to which this chapter applies. -- The provisions of this chapter apply, and constitute the only rules of limitation applicable, to a civil action or special proceeding, except in one of the following ases:
1. A case, where a different limitation is specially prescribed by law, or a shiorter limitation is prescribed by the written contract of the parties.
2. A cause of action or a defence which accrued be fore the first day of July, 1848. The statutes then in force govern, with respect to auch a cause of action or dotence.
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 & remedy upon a judgment, where he commences, insti. tutes, or otherwise resorts to the same, before the expi. ration 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 Ao 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 & special proceeding, or any proceeding therein, or in an action.
$ 416. 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 other. wise, 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 Non.
COMMENCEMENT OF AND PARTIES TO AN
TITLE I. - COMMENCEMENT OF AN ACTION.
Commencement of an action.
thereof; appearance of the defendant.
THE SUMMONS AND ACCOMPANYING PAPERS ; PERSONAL
SERVICE THEREOF ; APPEARANCE OF THE DEFENDANT.
SEC. 416. Action to be cominenced by summons; time wlien court ac
quence of failure.
When defendant must answer before time to appear expires.
Summons; when and by whom served. Sheriff's duty. 426. How personal service of summons made upon a natural per.
son. 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
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, tho court acquiros 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 somo act, to be done after the granting of the provisional remedy.(2)
Co. Proc., part of 1 127, and id., & 139. See | 399, ante, and 1721, 821, 822, and 824, post. (1) Ákin o. Albany, etc., R. R. Co., 14 llow. 337; O'Hara v. Brophy. 24 id. 383; Leitch v. Wells, 48 N. Y. 583; Gibbs u. Queens Ins. Co., 63 ld, 114: O'Brien v. Commercial Ins. Co., 88 N. Y. Supr. 617. (2) Waffle v. Goble, 63 Barb. 617.
* $ 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-otlice. 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 flow. 233; James v. Kirk. patrick, 14. 241 ; Walker v. flubbard, 4 id. 154; Croden v. Drew. 3 Duer, 84; Webb o. Mott, 6 How. 439. (2) Miller v. Stettiner, 7 Bosw. 692: . c., 22 How. 518; Traver v. Eighth Ave. R. R. Co., 6 Abb. N. 8. 16; Cooper u. Burr, 15 Barb. 10, Bank ”. McGee, 20 N. Y. 355; Hulle Thacter, 3 How, 407; Eagleston . Son, 5 Robt. 640. (3) Merrill o. Grinuell, 10 How. 32 ; Hürchi198 v. Crocker, 15 id. 336; Davison v. Pow. ell, 13 ld. 238. (4) See ante, & 35. Johnston v. Winter, Alt. L. J. 135; Weare u. Slocum, 3 liow. 397 : Mut. Life Ins. Co. v. koss, 10 Abb. 261. (3) Sup. Rule 13. Hurd v. Davis, 13 Uow. 57; Yorkes o. Peck, 17 1d. 192; Demelt o, Leonard, 19 id. 182.
$ 418. (Amended, 1877.] Form of summons. --- The summons, exclusive of the title of the action and the subscription, must be substantially in the following forin, the blanks being properly filled:
“ 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. zey within twenty days after the service of this sum. mons, exclusive of this day of service; and in case of your failure to appear or answer, judgment will be taken against you by default, for the relief domanded in the complaint. Dated
* Set ante, $ 55.
The summons is deemed the mandate of the court. See Co. Proc., & 129.
S 419. (Amended, 1879.] Service of copy complaint or notice with summons; consequence of failure. A copy of the complaint may be served with the sum
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 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 o. N. Y. O., etc., 60 N. Y. 176; wedwich v. Mckim, ? id. 307.
*$ 420. (Amended, 1877.] Cases where such sersice 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 percon; and thereupon demands judgment for a sun 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; Lelwich v. McKim, 43 id. 307 : Viluar v. Schall, 61 !d. 564; Ross v. Terrs, 63 14. 613: Taylor 0. Brot, 4 Abb. Dec. 382.' " Impiled” coutracts: llonnan 2. Earle, 13 Ald. N. S. 402.
§ 421. Appearance of defendant.--- The defendant's appearance must be made by serving upon the plain tiffs attorney, within twenty days after service of the Bummons, 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 eigna ture his office address, with the particulars prescribed
* See post, $ 1212.