ing section with respect to a defendant. And sections four hundred and forty to four hundred and forty-four both inclusive, apply to the proceedings in like manner as if such person was a defendant.

Substitute for Co. Proc., 135; Hallett v. Bighters, 13 How. 43; Brisbane r. Peabody, 3 id. 109; Kendall v. Washburn, 14 1d. 380; Cook v. Farrer, 34 Barb. 95; Wortman v. Wortman, 17 Abb. 66; Fiske v. Anderson, 12 id. 8; 23 Barb. 71; Peck v. Cork, 41 id. 549; Handley . Quick, 47 How. 233; Brook! Trust Co. v. Bulmer, 49 N. Y. 84. (1) Lefferts v. Hoffman, IČ Abb. N. 8. 2, n.; Hurlbert v. Hope Mut. Ins. Co., 4 How. 278; Wortman v. Wortman, 17 Abb. 66. (2) Roche v. Ward, 7 How. 416; Collins . Ryan, 33 Barb. 647; Towsley v. McDonald, 32 id. 604; Easterbrook v. Easterbrook, 64 id. 421; Bixby v. Smith, 5 T. & C. 279; s. c., 49 How. 50; 3 Hun, 60; Von Rhade v. Von Rhade, 2 T. & C. 491. (3) Easterbrook v. Easterbrook, 64 Barb. 421. (4) Wheeter v. Scully, 50 N. Y. 667; Allen. Malcolin, 12 Abb. N. S. 335; Steinle v. Bell, id. 171; Schwinger v. Hickok, 53 N. Y. 230; Sandford v. White, 56 id. 359. (5) See L. 1869, ch. 157, 1.

$439. [Amended, 1879.] Papers upon which order for publication may be made. The order must be founded upon a verified complaint, showing a sufficient cause of action against the defendant to be served, and proof by affidavit of the additional facts required by the last section; and also, where the application is made upon the ground that the defendant is a foreign corporation, or not a resident of the State, or in a case specified in subdivision fourth, fifth, or seventh of the last section, that the plaintiff has been or will be unable, with due diligence, to make personal service of the

summons.

See Co. Proc., 135. Kendall . Washburn, 14 How. 380; Titus e. Relyea, 16 id. 371; s. c., 8 Abb. 177; Wattle v. Goble, 53 Barb. 517; Jacquerson v. Van Erbe, 2 Abb. 315.

§ 440. [Amended, 1889.] By whom order may be made; contents of order.—The order may be made by a judge of the court, or the county judge of the county where the action is triable. It must direct that service of the summons, upon the defendant named or described in the order, be made by publication thereof in two newspapers, designated in the order as most likely to give notice to the defendant, for a specified time, which the judge deems reasonable, not less than once a week for six successive weeks; or, at the option of the plaintiff, by service of the summons, and of a copy of the complaint and order, without the State, upon the defendant personally, and if he is an infant under the age of fourteen years, also upon the person with whom he is sojourning; or, if the defendant is a corporation, upon 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 plaintiff deposit in specified post-office, one or more sets of copies of the

summons, complaint, and order, each contained in a securely closed post-paid wrapper, directed to the defendant, at a place specified in the order; or a statement that the judge, being satisfied, by the affidavits upon which the order was granted, that the plaintiff cannot, with reasonable diligence, ascertain a place or places, where the defendant would probably receive matter transmitted through the post-office, dispenses with the deposit of any papers therein.

Substitute for part of 135 of Co. Proc. (1) Olcott v. Robinson, 21 N. Y. 150; People v. Gray, 10 Abb. 468; Steinle v. Bell, 12 Abb. N. 8. 171. (2) Kerner v. Leonard, 15 Abb. N. S. 96; Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84. (3) Towsley. McDonald, 32 Barb. 609; Warren . Tiffany, 9 Abb. 66; 3. c., 17 How. 106; Hyatt v. Wagenright, 18 How. 248.

§ 441. [Amended, 1877.] When publication must be commenced; when service deemed complete.-The first publication in each newspaper designated in the order, or the service upon the defendant without the State, must be made within three months after the order is granted. For the purpose of reckoning the time within which the defendant must appear or answer, service by publication is complete upon the day of the last publication, pursuant to the order; and service made without the State is complete upon the expiration thereafter of a time equal to that prescribed for publication.

Co. Proc., substitute for part of § 135 and 137. Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84; Kerner v. Leonard, 15 Abb. N. 8. 96; Richardson v. Bates, 23 How. 516; Brod v. Heymann, 3 Abb. N. S. 396.

§ 442. [Amended, 1877.] Papers to be filed; notice to defendant. Where service is made by publication, the summons, complaint, and order, and the papers upon which the order was made, must be filed with the clerk, on or before the day of the first publication; and a notice, subscribed by the plaintiff's attorney, and directed only to the defendant or defendants to be thus served, substantially in the following form, the blanks being properly filled up, must be subjoined to, and pub lished with the summons: See post, § 1541, 1774.

"To : The foregoing summons is served upon you, by publication, pursuant to an order of (naming the judge and his official title), day of

dated the

18 and filed with the co m

,

plaint, in the office of the clerk of

at

Substitute for Co. Proc., part of 135. Kendall v. Washburn, 14 How. 380; Titus v. Relyea, 16 id. 371; Wattle . Goble, 53 Barb. 617; Jacquer BOR v. Van Erben, 2 ADS. 31.

§ 443. [Amended, 1877.] Id.; when service is made without the State. - Where service is made without the State, the papers specified in the last section must be previously filed; and a notice must be served with the summons, in all respects like the notice required by the last section, except that the words, "without the State of New-York", must be substituted for the words, "by publication".

New.

§ 444. Proof of service.- Proof of the publication of the summons and notice must be made by the affidavit of the printer or publisher, or his foreman or principal clerk. (1) Proof of deposit in the post-office, or of delivery, of a paper required to be deposited or delivered by the provisions of this article, must be made by the affidavit of the person, who deposited or delivered it.(2)

Co. Proc., 138, subd. 3. (1) Bunce v. Reed, 16 Barb. 347; Brisbane . Peabody, 3 How. 109. (2) Steinle v. Bell, 12 Abb. N. 8. 171; Hallett v. Righters, 13 How. 46; Morrell v. Kimball, 4 Abb. 352.

§ 445. [Amended, 1877.] Defendant when allowed to defend. Where the summons is served, pursuant to an order made as prescribed in this article, and the defendant so served does not appear; he or his representative, on application and sufficient cause shown, at any time before final judgment, must be allowed to defend the action; and, except in an action for divorce, or wherein the contrary is expressly prescribed by law, the defendant, or his representative, must, in like manner, upon good cause shown, and upon just terms, be allowed to defend, after final judgment, at any time within one year after personal service of written notice thereof; or, if such a notice has not been served, within seven years after the filing of the judgmentroll. If the defence is successful, and the judgment, or any part thereof, has been collected or otherwise enforced, such restitution may thereupon be compelled, as the court directs; but the title to property, sold, to a purchaser in good faith, pursuant to a direction contained in the judgment, or by virtue of an execution issued upon the same, shall not be affected thereby

Id., part of 135. Brown v. Brown, 58 N. Y. 609; Roche v. Ward, 7 How. 416; Van Wyck v. Hardy, 39 id. 392; Jacquerson v. Van Erben, 1 Abb. 315; Hallett v. Righters, 13 How. 43; Titus v. Relyea, 16 id. 371; Chapman v. Lemon, 11 id. 235; Carswell v. Neville, 12 id. 445: Hartwell 0. White. 9 Paige, 368.

TITLE II.

Parties to an action.

ARTICLE 1. Parties generally.

2. Parties severally liable.

3. Parties prosecuting and defending as poor persens.
4. Infant plaintiffs and defendants.

ARTICLE FIRST.

PARTIES GENERALLY.

446. Who may be joined as plaintiffs.

447. Id.; as defendants.

448. Parties united in interest, when to be joined; when one o more may sue or defend for the whole.

449. Party in interest to sue. Trustee, etc., may sue alone.

450. When married woman is a party.

451. When defendant or his name is unknown.

452. When court to decide controversy, or to order other parties to be brought in.

453. Supplemental summons.

§ 446. Who may be joined as plaintiffs. All persons having an interest in the subject of the action, and in obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly prescribed in this act.

Co. Proc., 117. Simar v. Canaday, 53 N. Y. 298; Simson v. Satterlee, 64 id. 657; Eaton v. Alger, 47 id. 345; Sanford v. Sanford, 45 id. 723; Thompson v. Fargo, 49 id. 188; McKee v. Murphy, 34 N. Y. Supr. 261; Hees v. Nellis, 1 T. & C. 118; Quackenbos v. Edgar, 34 N. Y. Supr. 333; Emery v. Erskine, 66 Barb. 9; McCotter v. Lawrence, 4 Hun, 107; Gray . Durland, 51 N. Y. 424; Farman v. Van Size, 56 id. 435; Lampman v. Hammond, 3 T. & C. 293; Sturm v. Atlantic Ins. Co., 38 N. Y. Supr. 281; and see 1 Wait's Pr. 88, et seq.

§ 447. Id.; as defendants. Any person may be made a defendant, who has or claims an interest in the controversy, adverse to the plaintiff, or who is a neces sary party defendant, for the complete determination or settlement of a question involved therein; except as otherwise expressly prescribed in this act.

Id., part of 118. Haines v. Hollister, 64 N. Y. 1; Brown v. Volkening id. 76; Slater v. Mersereau, id. 138; Halstead v. Cockcroft, 49 N. Y Supr. 519; Littell v. Sayre, 7 Hun, 485; Sanders v. Yonkers, 63 N. Y. 489; Hurlburt v. Banks, 1 Abb. N. C. 157; Chase v. Vanderbilt, 62 N. Y.307 Bee note, 118, Voorhies' Code; 1 Walt's Pr. 88, et seq.

§ 448. Parties united in interest, when to be joined when one or more may sue or defend for the whole.* Of the parties to the action, those who are united in in

* See Sec. 1919 post.

terest must be joined as plaintiffs or defendants, except as otherwise expressly prescribed in this act. But if the consent of any one, who ought to be joined as a plaintiff, cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint. And where the question is one of a common or general interest of many persons; or where the persons, who might be made parties, are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.

Co. Proc., 119, am'd. (1) Wooster v. Chamberlin, 28 Barb. 602; Fox D. Moyer, 54 N. Y. 125; Schmaiholz v. Polhaus, 49 How. 59; Silsbee v. Smith, 41 id. 418: Potter v. Ellice, 48 N. Y. 321; Carrere v. Spofford, 46 How. 294; Roberts v. Johnson, 58 N. Y. 613; Simar v. Canaday, 53 id. 298; Quigley v. Walter, 2 Sweeney, 175; Cridley v. Curry, 44 How. 345; Field v. Van Cott, 15 Abb. N. S. 349; Barton v. Speis, 5 Hun, 60; Lane . Salter, 51 N. Y. 1; Hopkins v. Lane, 4 T. & C. 311; Hasbrouck v. Bunce, 62 N. Y. 475. (2) Cole v. Reynolds, 18 N. Y. 74. (3) Coe v. Beckwith, 10 Abb. 296; Kerr v. Blodgett, 48 N. Y. 62; Sherman v. Parish, 53 id. 483; Smith v. Lockwood, 13 Barb. 218; Brooks v. Peck, 38 Al. 519; Reid v. Evergreens, 21 How. 319; Bishop v. Edmiston, 16 Abb. 466; McKenzie v. L'Amoureux, 11 Barb. 518.

§ 449. [Amended, 1877.] Party in interest to sue. Trustee, etc., may sue alone. - Every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A person, with whom or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section. Tintela

Id., part of 2 111, and all of 2 113. See note to 22 111 and 113. Voorhies' Code and cases cited, ante, 28 446 and 447. Executors, etc., Greenfield v. Mass. Mut. Ins. Co., 47 N. Y. 430; Miller v. Knox, 48 id. 232; Dunning v. Ocean Nat. Bk., 6 Lans. 296; Eaton v. Alger, 47 N. Y. 345; Bloodgood Mickle, 15 Abb. N. S. 103; Western R. R. Co. v. Nolan, 48 N. Y. 513 Davis. Reynolds, 48 How. 210; Fields v. Fowler, 4 T. & C. 598; s. c., 2 100 PE

450. When married woman is a party.-In an tion or special proceeding a married woman appears, proseMures or defends alone or joined wroper to join her husband other parties as if she

was single. It is not necessary or p with her as a party in any action or special proceeding affecttug her separate property. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of his wife, and all sums that may be recovered in such actions or special proceedings shall be the separate property of the wife. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of another on account of the wrongful acts of his wife committed without his instigation.

Last two sentences in effect September 1st.1890, and by the provisions of The amendatory act (Laws 1890, ch. 248) does not apply to any action or ectal proceeding pending, when the amendment was passed.

e Brennan v. Paasch, 7 Abb. N. C. 219: Stone v. Erie R. R. Co., 52 Y, 429: Rumsey v. Lake, 55 How. 339; Phillippi v. Wolf, 14 Abb. N. 6; Birkbeck v. Ackroyd, 74 N. Y. 356; Purcell v. Fry, 14 Hun, 595;