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resides out of the State or resides within the State, and is temporarily absent therefrom, the court may, in its discretion, make an order designating a person to be his guardian ad litem, unless he, or some one in his behalf, procures such a guardian to be appointed, as prescribed in the last two sections, within a specified time after service of a copy of the order. The court must give special directions in the order, respecting the service thereof, which may be upon the infant. The suinmons may be served by delivering a copy to the guardian so appointed, with like effect as where a summons is served without the State upon an adult defendant, pursuant to an order for that purpose, granted As prescribed in section four hundred and thirty-eight of this act; except that the time to appear or answer is twenty days after the service of the summons, exclusive of the day of service. Based on Co. Proc., part of $ 116.

$ 474. Guardian not to receive property until se curity given. - Except in a case where it is otherwise specially prescribed by law, a guardian, appointed for an infant, as prescribed in this article, shall not be permitted to receive money or property of the infant, other than costs and expenses allowed to the guardian by the court, until he has given sufficient security, approved by a judge of the court, or a county judge, to account for and apply the same, under the direction of the court. Co. Proc., $ 420, am'd.

$ 475. Security. - The security must be a bond to t'ie infant, in such penalty as the judge directs, not less than twice the sum, or the value of the property, to be riceived, executed by the guardian and at least two sureties, approved by the judge, and filed in the office of the clerk. The infant, or any other party to the action, may afterwards apply for an order, directing a new bond to be given, with an increased penalty ; or the court may so direct, of its own motion.

3 R. 8. 446, 8 5 (2 Edm. 465). Waring o. Waring, 7 Abb. 472; Orog. kan v. Livingston, 6 id. 350; 8. C., 25 Barb. 336; 17 N. Y. 218.

8 476. Last two sections not to apply to general guardian.- The last two sections do not apply to the goneral guardian of the infant, who has been appointed his guardian ad litem, as prescribed in this article; but the court may, at any time, require the general guar

dian to give additional security for the faithful diocharge of his trust, before receiving money or property of the infant, undor a judgment or order in the action. Following rulo 66.

8 477. Llability of defendant's guardian for coste. - A person appointed guardian, as prescribed in this article, for an infant defendant in an action, is not lim ble for the costs of the action, unless specially charged thorowith by the order of the court, for personal mim conduct. IR. & 47, ( 1 ( Bdm. 16). Soe Leopold .. Moya, 1 Adad

CHAPTER VI.

PLEADINGS IN COURTS OF RECORD, INCLUDING

COUNTERCLAIMS. TITLE 1.—THE CONSECUTIVE PLEADINGS IN AN AC

TION. TITLE II.-PROVISIONS GENERALLY APPLICABLE TO

PLEADINGS.

TITLE I.

The consecutive pleadings in an action.
ARTICLE 1. Complaint.

2. Denurrer.
3. Answer.
4. Reply.

ARTICLE FIRST.

COMPLAINT,

SEC. 478. First pleading to be complaint.

479. Copy complaint, when to be served.
480. Consequence of failure.
481. Complaint; what to contain,
482. When interlocutory and final judgment may be demanded.
483. Causes of action to be separately stated.

484. What causes of action may be joined in the same complaint. $ 478. First pleading to be complaint.— The first pleading, on the part of the plaintiff, is the complaint. Co. Proc., $ 141.

$ 479. [Amended, 1877.] Copy complaint, when to be served.-If a copy of the complaint is not delivered to a defendant, at the time of the delivery of a copy of the summons to him, either within or without the State, his attorney may, at any time within twenty days after the service of the summons is complete, serve upon the plaintiff's attorney a written demand of a copy of the complaint, which must be served within twenty days thereafter. The demand may be incorporated into the notice of appearance. But where the same attorney ap.

poars for two or more defendants, only one copy of tho complaint need be served upon him; and if, after ser. vice of a copy of the complaint upon him, as attorney for a defendant, he appears for another defendant, the last defendant must answer the complaint within twenty days after he appears in the action.(1)

Subetitute for part of ? 130, Co. Proc. See post, 824. (1) Mackay o. Laidlaw, 13 low. 129: Paine r. McCarthy, 3 T. & C.795; S, C., 1 Hug, 78; Engs Overing, 2 Code R. 79; Travis v. Tobias, 7 tlow. 9). Ferrts 7. Soley, 23 How. 122 ; Waish v. Kursheedt, 8 Abb. 418; Luon . Trezupert, 9 How. 212.

§ 480. Consequence of failure. --- If the plaintiff's attorney fails to serve a copy of the complaint, as prescribed in the last section, the defendant may apply to the court for a dismissal of the complaint. New. See 32 821, 822, post.

$ 481. Complaint; what to contain. The complaint must contain:

1. The title of the action, specifying the name of the wurt in which it is brought ;(1) if it is brought in the supreme court, the name of the county, which the plaintiff designates as the place of trial:(2) and the names of all the parties to the action, plaintiff and defendant.(3)

2. A plain and concise statement of the facts, consti. tuting each cause of action, without unnecessary repe. tition.

3. A demand of the judgment to which the plaintiff opposes himself entitled.(4)

Do. Proc., 142, am'd., (1) Overrules Van Namee o. People, 9 How. 198; Morrill v. Grinneli, 10 id. 31; Van Benthuysen o. Stevens, 14 d. 70. (2) Merril v. Grinnell, 10 low. 32; Hotchkiss v. Crocker, 15 td. 336; Davison 1. Powell, 13 id. 288 ; Dorman 5. Kellam, 14 Id. 184; S. C., 4 Abb. 202. (3) Over rules Hill o. Thacter, 3 How. 407. See Stanley v. Chappell, 3 Cow. 235; Murray s. Church, 3 T. &0. 145; 8. C., 1 Hun, 19; Wheelock v. Lee, 15 Abb. N. 8. 24; Bonesteel o. Garlinghouse, 60 Barb. 333; Rockwell v. Merwin, 45 N. Y. 160 ; Johnson v. Ackerson, 3 Daly, 430. See ante, 451, and note to Voorhles' Code, 142. (4) See Graves 0. Waite, 59 N. Y. 156 ; Hofheimer v. Campbe!1, 1d, 269, Clare v. National City Bk., 14 Abb. N. & 326; Hale v. Omaha Nat. Bk., 49 N. Y. 626; Caswell v. West, 3 T. & 0.283 ; Hopkins v. Lane, 4 ld. 311; 8. C., 2 Hun, 38; Waters v. Crawford, 2 T. &'0. 602; Elmwood v. Gardner, 45 N. Y. 349; Degraw v. Elmore, 50 10.1; Ross . Mather, 51 id. 108; Judge v. Hall,5 Lans. 69; Barclay o. Quicksilver Min. Co., 6 id. 25. Also, 10 N. Y. Leg. Obs. 281; 14 Abb. 150; 10 How. 50; 2 Duer, 674 ; 5 Sandf. 566; 11 Barb. 569; 32 1d. 92; 19 N. Y. 271; Bosw. 603; 17 Abb. 184; 7 N. Y. 478; 10 1d. 363; 3 Duer, 632; 20 Barb. 458; 9 id. 168; 38 How. 97; 6 id. 269; 21 1d, 296; 3 Abb. N. 8. 197 ; 3 Sandi. 668; 11 id. 202; 8 N. Y. 115; 10 Abb. 443. And see Walt's Code, note to 1 143; Voorhles' Code, id.

8 482. (Amended, 1877.] When interlocutory and final judgment may be demanded. – In an action triable

by the court, without a jury, the plaintiff may, in & proper case, demand an interlocutory judgment, and also a final judgment, distinguishing them clearly.

New. $ 483. Causes of action to be separately stated. Where the complaint sets forth two or more causes of action, the statement of the facts constituting each cause of action must be separate and numbered.

From Co. Proc., 167, am'd, and see rule 25. Wlles v. Suydam, 64 N. Y. 173; People v. Tweed, 63 id. 194; Benedict o. Seymour, 6 How. 298 Wood v. Anthony, 9 id. 78; Colton o. Jones, 7 Rob. 164; Corbin u. George, 2 Abb. 463; Hall v McKechnie, 22 Barb. 244.

§ 484. (Amended, 1877.] What causes of action may be joined in the same complaint. -- The plaintiff may unite, in the same complaint, two or more causes of action, whether they are such as were formerly de nominated legal or equitable, or both, where they are brought to recover as follows:

1. Upon contract, express or implied.(1)

2. For personal injuries, except libel, slander, crimi. nal conversation, or seduction.(2)

3. For libel or slander.
4. For injuries to real property.(3)

5. Real property, in ejectment, with or without dam. ages for the withholding theroof. 6. For injuries to personal property.(4)

7. Chattels, with or without damages for the taking or detention thereof.

8. Upon claims against a trustee, hy virtue of a con. tract, or by operation of law.(5)

9. Upon claims arising out of the same transaction, or transactions connected with the same subject of action, and not included within one of the foregoing subdi. visions of this section.(6)

Bat it must appear, upon the face of the complaint, that all the causes of action, so united, belong to one of the foregoing subdivisions of this section; that they are consistent with each other; and, except as otherwise prescribed by law, that they affect all the parties to the Action :(7) and it must appear upon the face of the complaint, that they do not require different places of trial.

Bubetitute for part of % 167, Co. Proc. (1) Mappler o. Mortimer, 12 Abb. N. S. 135; Booth v. Farmers', etc., Bank, 65 Barb. 457 : Keeps. Kanffman, 36 N. Y. Supr. 141; affa, 56 N. Y. 332; Walters o. Continental Ins. Co., 5 Hun, 343. (2) Anderson v. Hill, 53 Barb. 238, overruling u

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