TITLE II. Provisions relating generally to the proceedings in surr gates' courts, and to appeals from those courts. ARTICLE 1. Process, and service thereof; appearance, and Joinder a issues; miscellaneous regulations of practice. 2. Hearing; including trial by jury and reference. 3. Decrees and orders; and the enforcement thereof. Costs and fees. 4. Appeal. 5. Provisions relating generally to letters; and generally to executors, administrators, guardians, and testamentary trustees. ARTICLE FIRST. PROCESS, AND SERVICE THEREOF; APPEARANCE, AND JOINDER OF ISSUE; MISCELLANEOUS REGULATIONS OF PRACTICE. SEC. 2515. Process; how executed and returnable. 2516. Proceedings to be commenced by citation. 2517. Id.; within the statute of limitations. 2518. Persons constituting a class; when to be cited; citation when some are unknown. 2519. Contents of citation. 2520. Citation; how served in the State. 2521. Substitute for personal service upon a resident. 2522. Service by publication, etc. 2523. Id.; upon persons unknown, etc. 2524. Order; when and how made: contents thereof. 2525. What time required for delivery of copy, etc. 2526. Service upon a corporation, infant, lunatic, etc. 2527. Id.; upon infant, etc.; additional requirements in certatz cases. 2528. Appearance; how made, and effect thereof. 2529. Surrogate's father or son not to practice before him. 2530. Special guardian: when to be appointed. 2531. Notice of proceedings to appoint special guardian. 2532. Proof of service of citation, subpoena, etc. 2533. Written pleadings may be required. 2534. Verification thereof. 2535, 2536. Publication of citation, etc. 2537. Money paid into court and securities taken, how disposed of. 2538. Certain provisions made applicable to proceedings in surrogates' courts. 2515. Process; how executed and returnable. A citation or other mandate of a surrogate's court must, except where it is otherwise specially prescribed by law, be made returnable before the surrogate from whose court it was issued, and may be served or executed in any county. A warrant of attachment must be directed to the sheriff of the surrogate's county; who may execute it in any county, and must convey the person arrested to the place where it is returnable. 48. L. 1837, ch. 460, 22 66, 67 (4 Edm. 498). People v. Pelham, 14 Wend. $2516. Proceedings to be commenced by citation. -Except in a case where it is otherwise specially prescribed by law, a special proceeding in a surrogate's court must be commenced by the service of a citation, issued upon the presentation of a petition. But upon the presentation of the petition, the court acquires jurisdiction to do any act, which may be done before actual service of the citation. New. See 2 2525 and 2533, post. Wetmore v. Parker, 52 N. Y. 450; 8. c., 7 Lans. 121. § 2517. Id., within the statute of limitations. - The presentation of a petition is deemed the commencement of a special proceeding, within the meaning of any provision of this act, which limits the time for the commencement thereof. But in order to entitle the peti tioner to the benefit of this section, a citation issued upon the presentation of the petition, must, within sixty days thereafter, be served, as prescribed in section 2520 of this act, upon the adverse party, or upon one of two or more adverse parties, who are jointly liable, or otherwise united in interest; or, within the same time, the first publication thereof must be made, pursuant to an order made as prescribed in section 2522 of this act. New. See 22 399 and 400, ante. § 2518. Persons constituting a class; when to be cited; citation when some are unknown. Where it is prescribed, in any provision of this chapter, that a petitioner must pray that a person, or that creditors, next of kin, legatees, heirs, devisees, or other persons constituting a class, may be cited for any purpose, all those persons are necessary parties to the special proceeding. Where persons to be cited constitute a class, the petitioner must set forth, in an affidavit, the name of each of them, unless the name, or part of the name, of one or more of them cannot, after diligent inquiry, be ascertained by him; in which case, that fact must be set forth, and the surrogate must, thereupon, inquire into the matter. For the purpose of the inquiry, he may, in his discretion, issue a subpoena, requiring any person to attend before him to testify respecting the matter. If he is satisfied, upon the allegations of the petitioner, or after making the inquiry, that the name of one or more of the persons to be cited, cannot be as certained with reasonable diligence, the citation may be directed to that person or those persons, by a general designation, showing his, her, or their connection with the decedent, or interest in the property or matter in question; or otherwise sufficiently identifying the person or persons intended. A citation, thus directed, has the same force and effect, as if it was directed to the person or persons intended, by their names; and where the person or persons so intended are duly cited, in any manner prescribed by law, the decree binds them, as if they were named therein. A petition, duly verified, is deemed an affidavit, within the meaning of this section. New in form; 2 R. S. 74, ? 26 (2 Edm. 75). 2519. Contents of citation. A citation must be made returnable upon a day certain, designated therein, not more than four months after the date thereof; and must specify whose estate or what subject-matter is in question. The names of all the persons to be cited, as far as they can be ascertained, must be contained in the citation. Where the name, or part of the name, of either of them cannot be ascertained, that fact must be stated in the citation. L. 1837, ch. 460, 27 (4 Edm. 487). § 2520. Citation; how served in the State.—Except where special provision is otherwise made by law, service of a citation, within the State, must be made upon. an adult person, or an infant of the age of fourteen years or upwards, by delivering a copy thereof to the person to be served, or by leaving a copy at his residence, or the place where he sojourns, with a person of suitable age and discretion, under such circumstances, that the surrogate has good reason to believe that the copy came to his knowledge, in time for him to attend at the return day. A citation must be so served, if within the county of the surrogate or an adjoining county, at least eight days before the return day thereof; if in any other county, at least fifteen days before the return day; unless, in either case, the person served, being an adult, and not incompetent, assents in writing to a service within a shorter time. Any person, although a party to the special proceeding, may serve a citation. New in form. Wetmore v. Parker, 52 N. Y. 450; Bibby v. Meyer, 10 Paige, 220. § 2521. Substitute for personal service upon a resi dent.- Where it appears by affidavit, to the satisfaction of the surrogate from whose court a citation issued, that proper and diligent effort has been made to serve it upon a resident of the State, as prescribed in the last section; and that the person to be served cannot be found, or if found, that he evades service, so that it cannot be made; the surrogate may make an order, directing that service thereof be made, as prescribed in section 436 of this act; and the provisions of that sec tion and of section 437 of this act, relating to the service of a summons, apply to the service of a citation, pursu ant to an order made as prescribed in this section. New in form. 2522. [Amended, 1881.] Service by publication, etc.-The surrogate, from whose court a citation is issued, may make an order, directing the service thereof without the State, or by publication, in either of the following cases: 1. Where it is to be served upon a foreign corpora tion, or upon a person who is not a resident of the State. 2. Where the person to be served, being a resident of the State, has departed therefrom with intent to defraud his creditors, or to avoid the service of process. 3. Where the person to be served, whether an adult or an infant, is a resident of the State, but is temporarily absent therefrom. 4. Where the person to be served is a resident of the State, or a domestic corporation, and an attempt was made to serve a citation, issued from the same surrogate's court, upon the presentation of the same petition; before the expiration of the limitation applicable to the enforcement of the claim set forth in the petition, as fixed in chapter fourth of this act; and the limitation would have expired within sixty days next preceding the application for the order, if the time had not been extended by the attempt to serve the citation. New in form. Stevens v. Stevens, 3 Redf. 507. See Infant, § 2526. § 2523. Id.; upon persons unknown, etc.-The surrogate may also make an order, directing the service of a citation without the State, or by publication, in either of the following cases: 1. Upon a party to whom a citation is directed, either by his full name or part of his name, where the surrogate is satisfied, by affidavit, that the residence of that party cannot, after dili gent inquiry, be ascertained by the petitioner. 2. Upon one or more unknown creditors, next of kin, legatees, heirs, devisees, or other persons included in a class, to whom a citation has been directed, designating them by a general description, as prescribed in this article. New. § 2524. [Amended, 1881.] Order, when and how made; contents thereof, Where an order, directing the service of a citation without the State, or by publication, is made as prescribed in the last two sections, the party applying therefor must produce proof, by affidavit or otherwise, to the satisfaction of the surrogate, that the case is one of those specified in those sections. The order must direct that service of the citation, upon the person named or described in the order, be made by publication of the citation in two newspapers, designated as prescribed in this article, for a specified time, which the surrogate deems reasonable, not less than once in each of six successive weeks; or, at the option of the peti tioner, by delivering a copy of the citation, without the State to each person so named or described, in person, and if the person to be served is an infant under the age of fourteen years, also to the person with whom he is sojourning, or, if the service is made upon a corporation, to an officer thereof specified in section four hundred and thirty-one or four hundred and thirty-two of this act. It must also contain either a direction that on or before the day of the first publication, the petitioner deposit, in a specified post-office, a copy of the citation and of the order, contained in a securely closed post-paid wrapper, directed to the person to be served, at a place specified in the order, and, if the person to be served is an infant under the age of fourteen years, a further copy, likewise contained in a securely closed post-paid wrapper, di. rected to the person with whom such infant is sojourn ing, or, a statement that the surrogate, being satisfied, by the affidavit upon which the order was granted, that the petitioner cannot, with reasonable diligence, ascertain |