section, it may be personally served, by delivering a copy thereof to a local superintendent of repairs, freight agent, agent to sell tickets, or station keeper of the corporation, residing in the county; unless, at least thirty days before it was issued, the corporation had filed, in the office of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against it may be served; in which case, the summons may be personally served by delivering a copy to the person so designated. It was [L. 1854, ch. 282, §§ 14 and 15 (2 R. S., 5th ed., 697; 3 Edm., 645), consolidated, and amended verbally. The clause making a certified copy of the designation evidence is covered by § 933. held, in Wheeler v. N. Y. and H. R. R. Co., 24 Barb., 414, that the return of the constable is evidence, not only of the official character of the person served, but also of the facts which justify such service. See § 2869, subd. 4, ante.](*) ART. 1. ing to ex press com panies. § 2881. Where the defendant to be served is a corporation, asso- Id.; relatciation, partnership, or person, doing business in the State as an express company, and no person resides in the county to whom a copy of the summons may be delivered, as prescribed in the foregoing sections of this article, it may be personally served, by delivering a copy thereof to any local or general agent, agent to receive freight or parcels, route agent, or messenger of the defendant, residing in the county; unless, at least thirty days before it was issued, the defendant had filed, in the office of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against the defendant, may be served; in which case, the summons may be personally served by delivering a copy thereof to the person so designated. [L. 1864, ch. 411, §§ 1 and 2 (6 Edm., 286), consolidated, and amended so as to correspond to the last section. See also § 2869, subd. 4, ante.] sections § 2882. Where a person has been designated, as prescribed in Last two either of the last two sections, and the designation has been revoked, qualified. or it appears, by affidavit or the return of the constable, to whom a summons has been duly delivered for service, that the person designated is dead, or has ceased to reside within the county; or that he cannot, after due diligence, be found within the county, so as to de13 TITLE 2. Second and third effect thereof. liver a copy of the summons to him; the original summons, or the second or third summons, issued as prescribed in the next section, may be served as if the designation had not been made. Such a designation may be revoked by a writing, executed and filed in like manner as required for the purpose of making the designation. [New. Prepared in order to supply deficiencies in the former statute.] § 2883. Where it appears, by the return of the constable, to whom summons; a summons has been duly delivered for service, that it was not served for any cause, a second summons may be issued by the same justice, in the same action, within twenty days after the first summons was issued; and, upon the like return thereof, a third summons may be issued, within twenty days after the second was issued. The second or the third summons, as the case may be, relates back to the time when the first summons was issued; and, with respect to all proceedings before actual service, the service thereof has the same effect, as if the first summons had been seasonably served. For the purpose of issuing a new summons, as prescribed in this section, a previous summons may be returned upon the sixth, or any subsequent day, before the return day thereof. Where name of is unknown. [New. Some such provision will frequently be necessary, in order to prevent an inconvenience in the working of several of the amendments to the former legislation, effected in this chapter. One case, where this section will be useful, is suggested in the note to § 2878, ante; but there are many others. For instance, without such a provision, the action will be discontinued, and new papers must be prepared, where an order of arrest, an attachment, or a requisition in replevin accompanies a summons, and there is a failure to serve the summons within the time allowed for that purpose. On the other hand, it is easy to see, that a power to revive indefinitely an abortive action, will be open to abuse. We endeavored so to frame the section, as to avoid both these dangers.] § 2884. Where the plaintiff is ignorant of the name, or part of defendant the name of a defendant, that defendant may be designated in the summons, and in any other process or proceeding in the action, by a fictitious name, or by so much of his name as is known, adding a description, identifying the person intended. The person so designated must thereupon be regarded as a defendant in the action, and as sufficiently described therein for all purposes. When his name, or the remainder of his name, becomes known, the justice before whom the action is pending, must amend the proceedings already taken by the insertion of the true or full name, in place of the fictitious name, or part of a name; and all subsequent proceedings must be taken under the name so inserted. [2 R. S., 274, Part 3, ch. 2, tit. 4, § 282 (3 R. S., 5th ed., 461; 2 Edm., 282), amended so as to correspond to the provisions of this act, which relate to the same subject in the principal courts of record.] ART. 2. summons § 2885. A constable, who serves a summons, must, at or before Return of the time when the same is returnable, make and deliver to the justice a written return thereof, under his hand, stating the time when, and the manner in which, he served it. A constable who fails seasonably to serve a summons, delivered to him for service, must make a written return thereof under his hand, stating that it was not served, and the reason why he failed to serve it. [2 R. S., 228, Part 3, ch. 2, tit. 4, § 16 (3 R. S., 5th ed., 428; 2 Edm., 244), amended by inserting the clause, " at or before the time when the same is returnable," by not requiring the return to be upon the summons; and by adding the last sentence. For the rule as to a defective return, see Sperry v. Reynolds, 65 N. Y., 179.] ARTICLE SECOND. APPEARANCE OF PARTIES. SEC. 2886. Parties may appear in person or by attorney. 2887. Guardian ad litem for infant plaintiff. 2888. Id.; for infant defendant. 2889. When constable, etc., may not act as attorney. 2890. Authority of attorney; how proved. 2891. Plaintiff to prove his case. 2892. Defendant may offer to compromise; proceedings thereupon. may ap pear in person person § 2886. A party to an action before a justice of the peace, who Parties is of full age, may appear and prosecute or defend the same, in or by attorney, at his election, unless he has been judicially declared torney. to be incompetent to manage his affairs. [2 R. S., 232, Part 3, ch. 2, tit. 4, § 39, and first clause of § 41 (3) R. S., 5th ed., 432; 2 Edm., 248), consolidated, and amended so as to correspond to the provisions of this act, which relate to the same subject in the principal courts of record. See 42 N. Y. 26, and 65 N. Y., 180.] or by at. § 2887. Before a summons is issued in behalf of, or an issue is for infant joined without summons by, an infant plaintiff, the justice must TITLE 2. Guardian ad litem plaintiff. infant appoint a competent and responsible person, nominated by the plaintiff or his general guardian, to appear as his guardian for the purpose of the action. The written consent of the person so appointed must be filed with the justice, before his appointment. The guardian so appointed is responsible for the costs. [Id., § 40, amended by the substitution of a guardian for a next friend, and the words, "competent and responsible," for "suitable," to correspond to the provisions of this act, which relate to the same subject in the principal courts of record. The original said, that an issue joined by an infant plaintiff, without process, should not be "heard," till a next friend was appointed. If that meant that the infant might join issue without a next friend or guardian, the statute ought to have been changed before. No such construction is possible under this section. The words, "or his general guardian," have also been inserted, to provide for the case where the plaintiff is not present, or is too young to name a guardian; and a clause has been added, expressly requiring the guardian's written consent to be filed before the appointment, in accordance with the supposed meaning of the original.] Id.; for § 2888. After the service and return of a summons against an defendant. infant defendant, no other proceeding shall be taken in the action, When constable etc., may until a person has been appointed to appear as his guardian for the purpose of the action. Upon the nomination of the defendant, the justice must appoint a proper person for that purpose. If the defendant does not appear upon the return of the summons, or if he neglects or refuses to nominate, the justice may, on the application of the plaintiff, appoint any proper person as his guardian. The written consent of the person, so appointed, must be filed with the justice before his appointment. The guardian so appointed is not responsible for any costs. [Id., §§ 42 and 43, consolidated, and amended by expressly requiring the consent to be filed before appointment made.] § 2889. Subject to the provisions of sections 63 and 64 of this not act as act, any person, other than the constable who served the summons or the venire, or the law partner or clerk of the justice, may be the attorney for a party to an action before a justice of the peace.(*) attorney. [Id., § 44, as amended by L. 1864, ch. 421 (6 Edm., 295); further amended by adding the first clause, which refers to the prohibition 16 against any but an admitted attorney practicing in New-York or Kings county, and by omitting the provision allowing the partner or clerk of the justice, or the constable who served the summons or venire, to act as attorney in any proceeding in the action, except as an advocate. upon the trial. The latter amendment is in accordance with the principle of L. 1847, ch. 470, §§ 52 and 53 (3 R. S., 5th ed., 466; 4 Edm., 590). It was held in Fox v. Jackson, 8 Barb., 355, that section 52 did not apply to justices' courts ; but the evil, which that provision was intended to remedy, was quite as great in those courts, as in courts of record, and it was thought that too great care could not be taken to purge them from even the appearance of evil. The reasons which suggested the amendment to the R. S., made by L. 1864, ch. 421, are equally applicable to this amendment of the act of 1864; since the obtaining of an adjournment by a defendant is often as beneficial to him, as the obtaining of a nonsuit.] ART. 2. Authority ney; how § 2890. The attorney's authority may be conferred orally or in of attor writing; but the justice shall not suffer a person to appear as an proved. attorney, unless his authority is admitted by the adverse party, or proved by the affidavit or oral testimony of himself or another. [Id., § 45. The original section did not permit a justice to render judgment against a defendant upon whom the summons was not served, upon the appearance of a person as his attorney, unless the attorney's authority was proved, although the plaintiff did not require proof. Sperry v. Reynolds, 65 N. Y., 179. The ruling is equally applicable to this section.] prove his § 2891. If a defendant fails to appear and answer, the plaintiff Plaintiff to cannot recover without proving his case. [Co. Proc., § 64, subd. 8.] case. to com proceed upon. § 2892. Except in an action to recover a chattel, the defendant Defendant may, upon the return of the summons and before answering, file promise; with the justice a written offer to allow judgment to be taken against ings there him for a sum therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more of the defendants, against whom a separate judgment may be taken. If the plaintiff thereupon, before taking any other proceeding in the action, files with the justice a written acceptance of the offer, the justice must render judgment accordingly. If an acceptance is not filed, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, and must pay the defendant's costs from that time. |