tiff's 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; s. c., 10 Abb. 260. Compelling return: see Sup. Ct. Rule 10.

§ 426. [Amended, 1879.] How personal service of summons made upon a natural person. - Personal service 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 v. Heller, 6 How. 194; Rogers v. 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 v. 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 believe, 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, make an order, requiring a copy of the summons to be also delivered, in behalf of the defendant, to a person desig See SS 427-9, 1755.

9

nated in the order, and that service of the summons shall not be deemed complete, until it is so delivered.

New.

§ 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, reasonable 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 may 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 conduct 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.

New.

§ 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 recovery, the court may make an order, dispensing with such delivery. In that case a delivery of a copy of the summons, 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 full age, may execute, under his hand, and acknowledge in the manner required by law to entitle a deed to be recorded, a written designation of another resident of 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 same, 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 proceeding, against the person making it, in any court or before any officer, may be served upon the person so desig nated, 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 upon 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 corpora tion, the cashier, the treasurer, or a director or manag. ing agent. (3)

(1) L. 1860, ch. 379, § 4. (2) New. (3) Co. Proc., 134, part of subă,

1. Brewster v. Michigan Cent., 5 How. 183; Flynn v. Hadson R. B. R. Co., 6 How. 308; Doty v. Mich. Cent., 8 Abb. 427; Bain v. Globe Ins. Co., 9 How. 448; Donadi v. Ins. Co., 2 E. D. Smith, 519; Berrian v. Methodist, 4 Abb. 424; 8. c., 6 Duer, 682.

§ 432. [Amended, 1877.] Id.; upon a foreign corporation. 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 writ ing, under the seal of the corporation, and the signa ture 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. nated; 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 require 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. 1, and L. 1855, ch. 279, 1-3. Clews

Rockford, 49 How. 117; De Bemer v. Drew, 57 Barb. 438; Gibbs v. Queens Ins. Co., 63 N. Y. 114, and cases. See chap. 346, L. 1884.

§ 433. Service of process, etc., to commence a special proceeding. The provisions of this article, relating to the mode of service of a summons, apply likewise to the service of any process or other paper, whereby a special proceeding is commenced in a court, or before an officer, except a proceeding to punish for contempt, and except where special provision for the service thereof is otherwise made by law.

See L. 1855, ch. 279, § 4 (3 Edm. 685).

434. Proof of service of summons, etc.; how made. -Proof of service, as prescribed in this article, must be made by affidavit, except as follows:

If the service was made by the sheriff, it may be proved by his certificate thereof. (1)

2. If the defendant served is an adult, who has not been judicially declared to be incompetent to manage his affairs, the service may be proved by a written admission, signed by him, and either acknowledged by him, and certified in like manner as a deed to be recorded in the county, or accompanied with the affidavit of a person, other than the plaintiff, showing that the signature is genuine.(2)

A certificate, admission, or affidavit of service of a summons, must state the time and place of service. A written admission of the service of a summons, or of a paper accompanying the same, imports, unless otherwise expressly stated therein, or otherwise plainly to be inferred from its contents, that a copy of the paper was delivered to the person signing the admission. (3) Substitute for portions of Co. Proc., 138. (1) Litchfield v. Burwell How. 341; Thurston v. King, 1 Abb. 126; Morrell v. Kimball, 4 id. 352; farmers' Loan Co. v. Dickson, 9 id. 61; s. c., 17 How. 477; Brien v. Casey, 7 Abb. 416. (2) Jones v. U. S. Slate Co., 16 How. 129; Litchfield v. Bur well, 5 id. 341; Trolan v. Fagan, 48 id. 240. (3) See Read v. French, 28 N. Y. 285.

ARTICLE SECOND.

SUBSTITUTES FOR PERSONAL SERVICE IN SPECIAL CASES

Buc. 435. Order for service of summons from supreme court, when de fendant not found, etc.

436. How service must be made.

137. Papers to be filed; proof of service.

438. Cases in which service of summons by publication, etc., may

be ordered.