Defendant unreasona ing, when to pay costs. $130. A copy of the complaint need not be served with the summons. In such case, the summons must state where the complaint is or will be filed; and if the defendant, within twenty days thereafter, causes notice of appearance to be given, and in person, or by attorney, demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof must, within twenty days thereafter, be served accordingly, and after such service the defendant has twenty days to answer, but only one copy need be served on the same attorney. As amended by Laws of 1851, ch. 479. 19 N. Y., 413; 17 How. P. R., 137; 13 Hów. P. R., 129; How. P. R., $131. In the case of a defendant against whom no persobly defend nal claim is made, the plaintiff may deliver to such defendant with the summons a notice subscribed by the plaintiff or his attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects specific, real, or personal property, and that no personal claim is made against such defendant, in which case no copy of the complaint need be served on such defendant unless within the time for answering, he shall, in writing, demand the same. If a defendant, on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff. Notice of pendency of action title to real affecting property. As amended by Laws of 1851, ch. 479. 10 N. Y., 317; 8 B., 124; 4 How. P. R., 15; 32 N. Y., 62. $132. In an action affecting the title to real property the plaintiff, at the time of filing the complaint, or at any time afterward, or whenever a warrant of attachment, under chapter four of title seven, part second of this Code, shall be issued, or at any time afterwards, the plaintiff, or a defendant, when he sets up an affirmative cause of action in his answer and demand substantive relief, at the time of filing his answer, or at any time afterwards, if the same be intended to affect real estate, may file with the clerk of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and the description of the property in that county affected thereby; and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the parties thereto, and the time and place of recording the same. From the time of filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby; and every person whose conveyance or incumbrance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were made a party to the action. For the purposes when deem of this section an action shall be deemed to be pending from Actions, the time of filing such notice; provided, however, that such Amended by Laws of 1851, ch. 479; 1857, ch. 723; 1858, ch. 306; 1862, CHAP XI by whom served. $133. The summons may be served by the sheriff of the Summons, county where the defendant may be found, or by any other v person not a party to the action. The service shall be made, and the summons returned, with proof of the service, to the person whose name is subscribed thereto, with all reasonable diligence. The person subscribing the summons may, at his option, by an indorsement on the summons, fix a time for the service thereof, and the service shall then be made accordingly. 5 How. P. R., 112; 3 How. P. R., 284, 314, 327; 10 Ab., 262; 4 Ab., 44; 2 Ab., 15. $134. The summons shall be served, by delivering a copy summons, thereof, as follows: 1. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, a director or managing agent thereof; but such service can be made in respect to a foreign corporation, only when it has property within this state, or the cause of action arose therein; or where such service shall be made within this state personally upon the president, treasurer or secretary thereof; 2. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian; or if there be none within the state, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed; 3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs in consequence of habitual drunkenness, and for whom a committee has been appointed, to such committee and to the defendant personally; 4. In all other cases, to the defendant personally. Amended by Laws of 1851, ch. 479; 1859, ch. 428. 31 B., 308; 30 B., 161; 28 B., 512; 8 B., 543; 20 How. P. R., 68; 18 P. R., 194; How. P. R., 96, 109, 183; 11 Ab., 452, 456; 10 Ab., 309; 9 Ab., 104; 8 Ab., 243, 428; 4 Ab., 72; 2 Ab., 15. how servod and returned. PART III. Publication when defendant cannot be found. S135. Where the person, on whom the service of the summons is to be made, cannot, after due diligence, be found within the state, and that fact appears by affidavit to the satisfaction of the court or a judge thereof, or of the county judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant, in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this state, such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases: 1. Where the defendant is a foreign corporation, has property within the state, or the cause of action arose therein; 2. Where the defendant, being a resident of this state, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; 3. Where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action; 4. Where the subject of the action is real or personal property in this state, and the defendant has, or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein; 5. Where the action is for divorce, in the cases prescribed by law; The order must direct the publication to be made in two newspapers to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks. In case of publication, the court or judge must also direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint out of the state is equivalent to publication and deposit in the post office. The defendant against whom publication is ordered or his representatives, on application and sufficient cause shown, at any time before judgment, must be allowed to defend the action; and except in an action for divorce, the defendant, against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition on such terms as may be just; and if the defense be successful, and the judgment or any part thereof, have been collected, or otherwise enforced, such restitution may thereupon be com pelled as the court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. And in all cases where publication is made, the complaint must be first filed, and the summons, as published, must state the time and place of such filing. CHAP. XL ings rela mortgages cases. In actions for the foreclosure of mortgages on real estate, already Proceedinstituted, or hereafter to be instituted, if any party, or parties, having tive to foreany interest in, or lien upon such mortgaged premises, are unknown to closure of the plaintiff, and the residence of such party or parties cannot, with in certain reasonable diligence, be ascertained by him, and such fact shall be made to appear, by affidavit, to the court, or to a justice thereof, or to the county judge of the county where the trial is to be had, such court, justice, or county judge may grant an order that the summons be served on such unknown party or parties by publishing the same for six weeks, once in each week successively, in the state paper and in a newspaper printed in the county where the premises are situated, which publication shall be equivalent to a personal service on such unknown party or parties. Amended by Laws of 1851, ch. 479; 1858, ch. 306; 1860, ch. 459. ings where § 136. Where the action is against two or more defendants, and the Proceed summons is served on one or more of them, but not on all of them, there are the plaintiff may proceed as follows: several defendants, 1. If the action be against defendants jointly indebted upon contract, and part he may proceed against the defendant served, unless the court other only served. wise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all and the separate property of the defendants served, and if they are subject to arrest against the persons of the defendants served; or, 2. If the action be against defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants. 3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants if the action had been against them or any of them alone. 4. If the name of one or more parties shall, for any cause, have been omitted in any action in which judgment shall have passed against the defendants named in the summons, and such omission shall not have been pleaded in such action, the plaintiff, in case the judgment therein shall remain unsatisfied, may by action recover of such partner separately, upon proving his joint liability, notwithstanding he may not have been named in the original action; but the plaintiff shail have Batisfaction of only one judgment rendered for the same cause of action. As amended by Laws of 1851, ch. 479; 1866, ch. 824. 21 N. Y., 303; 32 B., 553, 557; 22 B., 650; 16 B., 42; 15 B., 178; 14 PART III. When serv $137. In the cases mentioned in section 135, the service ice deemed of the summons shall be deemed complete, at the expiration case of pub- of the time prescribed by the order for publication. made in lication. Service of summons, 23 How. P. R., 516; 7 How. P. R., 313; 6 How. P. R., 199; 8 Ab., 126; 38 B. 642 15 Ab., 90. $138. Proof of the service of the summons, and of the how proved. Complaint or notice, if any, accompanying the same, must be as follows: When jurisdiction of action acquired. Old forms abolished. 1. If served by the sheriff, his certificate thereof; or 3. In case of publication, the affidavit of the printer, or his In case of service, otherwise than by publication, the certificate, affidavit or admission must state the time and place of the service. As amended by Laws of 1851, ch. 479. 9 Ab., 391. S 139. From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him. As amended by Laws of 1851, ch. 479. 31 B., 308; 13 B., 259; 10 B., 259; 19 How. P. R., 54; 18 How. P. R., 11; 17 How. P. R., 478, 500; 15 How. P. R., 8; 6 How. P. R., 47; 4 How. P. R., 340; 11 Ab., 452; 10 Ab., 309, 474; & Ab., 64, 166, 177, 391; 8 Ab., 273, 309; 2 Ab., 13; 38 B., 642; 15 Ab, 90, 247. TITLE VI. OF THE PLEADINGS IN CIVIL ACTIONS. CHAPTER I. The complaint. II. The demurrer. III. The answer. IV. The reply. V. General rules of pleading. VI. Mistakes in pleading and amendments. CHAPTER I. THE COMPLAINT. SEC. 140. Forms of pleadings heretofore existing abolished. 141. First pleading to be complaint. 142. Complaint, what to contain. S 140. All the forms of pleading heretofore existing, are of pleading abolished; and hereafter, the forms of pleading in civil actions, in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this act. As amended by Laws of 1852, ch. 392. 19 N. Y., 492; 13 N. Y., 314; 12 N. Y., 441; 11 N. Y., 351; 7 N. Y |