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in section 417 of this act, concerning the office address of the plaintiff's attorney.
See Sup. Ot. Rule 14. Cooley v. Lawrence, 12 How. 17A ; Quin v. Tulton, 2 Duer, 648; Kelsey o. Covert, 15 How. 92; Hunt r. Brennan, 1 Hun, 313; Ogdensburgh, etc., v. Vermont, etc.16 Abb. N. S. 249; Brett v Brown, 13 id. 293.
$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 de murrer or answer upon the plaintiff's attorney, before the expiration of the time, within which the summons requires him to answe
wer.(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., 84 130 and 143. (1) Mandeville v. Winne, 6 How. 461; McGown v. Leavenworth, 2 E. D. Smith, 24; Phillips r. Prescott, 9 Bow. 33; Lord v. Vandenburgh, 15 id. 368. (2) Ferris v. Soley, 23 How. 122; Walsh o. Kursheedt, 8 Abb. 418.
$ 423. [Amended, 1877.] Notice of no personal claim ; effect of service thereof. -- Where a personal elain is not made against a defendant, a notice, sub scribed 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 per. sonal 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 u. Warriaer, 14 id. 570; Gallagher o. Egan, 2 Sandf. 742. 8 424. Effect of voluntary appearance:
- À 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. 8. 295; Fergason o. Crawford, 7 Hun, 23 ; Tracy v. Reynolds, 7 How. 327; Wheelock
v. Lee, u Abb. N.' 8. 24; Allen v. Malcolm, 12'id. 335; Mors v. Stanton, 61 N. 1. 619.
$ 425. Summons; when and by whom servede 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
tiffs attorney may, by an indorsement on the summons, fix a time within which the service thereof must be made: in that case, the service cannot be made afterwards. Where a summons is delivered for service to the sheriff of the county, wherein the defendant is found, the sheriff must serve it, and return it, with proof of service, to the plaintiff's attorney, with reasonable diligence.
Co. Proc., & 133, am'd. Myers v. Overton, 2 Abb. 344; Hunter v. Lester, 18 How. 347 ; 8. C., 10 Abb. 260. Compeling return: see Sup. Ot. Rule 10.
$ 426. (Amended, 1879.] How personal service of summons made upon a natural person. Personal ser. vice of the summons upon a defendant, being a natural person, must be made by delivering a copy thereof, within the State, as follows:
1. If the defendant is an infant, under the age of fourteen years, to the infant in person, and also to his father, mother or guardian; or, if there is none within the State, to the person having the care and control of him, or with whom he resides, or in whose service he is employed.
2. If the defendant is a person judicially declared to be incompetent to manage his affairs, in consequence of lunacy, idiocy, or habitual drunkenness, and for whom a committee has been appointed, to the committee, and also to the defendant in person (1)
3. If the action is against a sheriff, for a cause specified in section one hundred and fifty-eight of this act, by delivering it to the defendant in person, or to his under-sheriff in person, or at the office of the sheriff during the hours when it is required by law to be kept open, to a deputy-sheriff or a clerk in the employment of the sheriff, or other person in charge of the office.
4. In any other case, to the defendant in person.(2) Id. , 134, subd. 2, 3, and 4. (1) Heller o. Heller, 6 How, 194; Rogers 0. McLean, 11 Abb. 440; aff"d, 34 N. Y. 536; Soverhill v. Dickson, 5 How. 109. (2) Watson v. Church, 5 T. &C. 243; 8. C., 3 Hun, 80; Lathrop v. Heacock, 4 Lans. 1; Foot 0. Lathrop, 53 Barb. 183.
$ 427. Id.; in certain cases of infancy, or lunacy, etc., not judicially declared. - If the defendant is an infant of the age of fourteen years, or upwards, or if the court has, in its opinion, reasonable ground to be lieve, that the defendant, by reason of habitual drunkenness, or for any other cause, is mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, the court may, in its discretion, with or without an appli. cation therefor, and in the defendant's interest, mako an order, requiring & copy of the summons to be also delivered, in behalf of the defendant, to a person desig 9
"See SS 427-9, 1755.
nated in the order, and that service of the summons shall not be deemed complete, until it is so delivered.
$ 428.* The same.-- In a case specified in subdivi. sion first or second of section four hundred and twentysix of this act, where the court has, in its opinion, rea sonable ground to believe that the interest of the per son, other than the defendant, to whom a copy of the summons has been delivered, is adverse to that of the defendant, or that, for any reason, he is not a fit person to protect the rights of the defendant, it
likewise make an order, as prescribed in the last section. In a case specified in subdivision second, the court may, as a part of the same order, or by a separate order, made. in like manner and upon like ground, at any stage of the action, appoint a special guardian ad litem to con. duct the defence for the incompetent defendant, to the exclusion of the committee, and with the same powers, and subject to the same liabilities, as a committee of the property.
$ 429. Id.; when delivery of copy to lunatic dispensed with. - Where the defendant has been judi cially declared to be incompetent to manage his affairs, in consequence of lunacy, and it appears satisfactorily to the court, by affidavit, that the delivery of a copy of the summons to him, in person, will tend to aggravate his disorder, or to lessen the probability of his recov. ery, the court may make an order, dispensing with such delivery. In that case a delivery of a copy of the sumn. mons, to a committee duly appointed for him, is sufficient personal service upon the defendant. New.
$ 430.* Designation, by a resident, or a person upon whom to serve a summons during his absence; effect and revocation thereof. - A resident of the State, of Vull age, may execute, under his hand, and acknowledge, in the manner required by law to entitle a deed to be rocorded, a written designation of another resident oí the State, as a person upon whom to serve a summons, or any process or other paper for the commencement of a civil special proceeding, in any court or before any officer, during the absence from the United States of
the person making the designation; and may file the game, with the written consent of the person so desig. nated, executed and acknowledged in the same manner, in the office of the clerk of the county, where the person making the designation resides. The designation must specify the occupation, or other proper addition, and the residence of the person making it, and also of the person designated : and it remains in force during the period specified therein, if any; or, if no period is specified for that purpose, for three years after the filing thereof. But it is revoked earlier, by the death or legal incompetency of either of the parties thereto; or by the filing of a revocation thereof, or of the consent, executed and acknowledged in like manner. The clerk must file and record such a designation, consent, or revocation; and must note, upon the record of the original designation, the filing and recording of a revocation. While the designation remains in force, as prescribed in this section, a summons, or any process or other paper for the commencement of a civil special proceed. ing, against the person making it, in any court or before any officer, inay be served upon the person so desig: Dated, in like manner and with like effect, as if it was served personally upon the person making the designation, notwithstanding the return of the latter to the United States. New
§ 431. How personal service of summons made apon a domestic corporation. - Personal service of the summons upon a defendant, being a domestic corporation, must be made by delivering a copy thereof, within the State, as follows:
1. If the action is against the mayor, aldermen, and commonalty of the city of New-York, to the mayor, comptroller, or counsel to the corporation.(1)
2. If the action is against any other city, to the mayor, treasurer, counsel, attorney, or clerk; or, if the city lacks either of those officers, to the officer performing corresponding functions, under another name.(2)
3. In any other case, to the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer, or a director or manag. ing agent.(3) (1) L. 1861, ch. 379, 84. (2) New. (3) Co. Proc., 8 134, part of subd.
1. Brewster o. Michigan Cent., 5 How. 183; Flynn v. Hadson B. B. B. Co., 6 How. 308; Doty v. Mich. Oent., 8 Abb. 427 ; Bain v. Globe Ins. Co., 9 How. 448; Donadt v. Ins. Co., 2 E. D. Smith, 519; Berrian e. Mothodist, 4 Abb. 424; 8. c., 6 Duer, 682.
§ 432. (Amended, 1877.] Id.; upon a foreign corpo ration. - Personal service of the summons, upon a defendant, being a foreign corporation, must be made by delivering a copy thereof, within the State, as fol lows:
1. To the president, treasurer, or secretary; or, if the corporation lacks either of those officers, to the officer performing corresponding functions, under another name.
2. To a person designated for the purpose by a writing, under the seal of the corporation, and the signe. tare of its president, vice-president, or other acting head, accompanied with the written consent of the per. son designated, and filed in the office of the secretary of State. The designation must specify a place, within the State, as the office or residence of the person desig. bated ; and, if it is within a city, the street, and street number, if any, or other suitable designation of the particular locality. It remains in force, until the filing in the same office of a written revocation thereof, or of the consent, executed in like manner; but the person designated may, from time to time, change the place specified as his office or residence, to some other place within the State, by a writing, executed by him, and filed in like manner. The secretary of State may re quire the execution of any instrument, specified in this section, to be authenticated as he deems proper, and he may refuse to file it without such an authentication, An exemplified copy of a designation so filed, accompanied with a certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it.
3. If such a designation is not in force, or if neither the person designated, nor an officer specified in subdi. Vision first of this section, can be found with due dili. gence, and the corporation has property within the State, or the cause of action arose therein ; to the cashier, a director, or a managing agent of the corpora tion, within the State. Co. Proc., & 134, part of subd. I, and L. 1856, ch. 279, & 1-3. Olews