be ascertained by a computation of interest, the notice in the summons should be under subdivision two of this section.

66. In an action where the complaint alleges a mistake in a former accounting, and demands that the mistake be rectified, and that the defendant pay a specific sum, the summons should be for relief.

67. A complaint setting forth a conversion of money deposited with the defendant, and demanding the amount of such money, is not variant from a summons for a money demand on contract.

68. When an action has come to trtal it is too late to object that the summons is under the wrong subdivision of this section to justify the complaint filed and served.

69. The objection to the summons that it is under the wrong subdivision of this section should be presented by motion, in order that an amendment may be made on just

terms.

$130. Complaint need not be served with summons. In such case what to be stated in summons and proceedings thereon.

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.

1. Question. Has this section been amended since its passage in 1848? Anserer. It has, in 1849 and 1851, which last amendment reads as above.

2. Q. How did this section read in 1848 and 1849 ?

4. As follows:

$109. [1848.] A copy of the complaint shall be served with the summons, except, that in the case of a defendant against whom no personal claim is made, in an action for the partition of real property, or for the foreclosure of a mortgage, the plaintiff may, instead of a copy of the complaint, 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," 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.

130. [1849.] A copy of the complaint need not be served with the summons. In such case, the summons shall state where the complaint will be filed; and if the defendant, within ten days thereafter, in person or by attorney, demand, in writing, a copy of the complaint, specifying a place within the state where it may be served, a copy thereof shall be served accordingly, and after such service the defendant shall have twenty days to answer; but only one copy need be served on the same attorney. In the case of a defendant against whom no personal claim is made in an action for the partition of real property, or for the foreclosure of a mortgage, 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, 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.

Questions.

3. Q. When must a copy of the complaint be served, when not served with the summons? 4. Q. Can the time to serve a copy of complaint be extended?

5. Q. Can an answer he served after the twenty days prescribed by this section?

6. Q. Can a motion to dismiss the complaint be made, if the complaint is not served within twenty days after demand!

7. Q. In what cases must a copy complaint be served, to prevent or procure a default?

8. Q. What is a sufficient designation of the place requiring a copy complaint and other papers to be served!

9. Q. What is the effect of an omission by defendant, to demand a copy complaint within ten days after being served with the summons?

10. Q. What is the effect of an irregular statement in the summons as to the filing of the complaint!

3. Q. When must a copy of the complaint be served, when not served with the summons ? A. In Littlefield agt. Murin, 4 How., 306, Special Term, December, 1849, ALLEN, J., it was decided, that after the lapse of a reasonable time for the service of the copy of complaint. after demand, pursuant to this section, if not served, the defendant may move for judgment dismissing the plaintiff's complaint. Analogous to the old practice for judg ment of non pros, for non-service of a bill of particulars. In such case the complaint may also be dismissed under section 274 of the Code, for the neglect of the plaintiff to proceed in the cause, pursuant to statute, against the defendant served with the summons. It seems, that twenty-four hours after such demand may generally be considered a reasonable time. And it was stated, that by the present Code, an action may be commenced by the service of a summons, without a copy of the complaint, and in that case, if the defendant, within ten days after the service of the summons, demand in writing, a copy of the complaint, specifying a place within the state where it may be served, a copy thereof shall be served accordingly. (Code, § 130.) There is no time prescribed by the act within which the copy complaint must be served, and it must therefore be served within a reasonable time. In analogy to the practice upon a peremptory order for a bill of particulars under the former system, which did not prescribe a time within which the

bill should be furnished, the copy complaint should be served instanter (Harman agt. Glover, 10 W. p. 617); and instanter, under the former practice and rules, meant within twenty-four hours. (Id. Rule 50 of 1847.) But the latter clause of rule 59, which defined "instanter," has been omitted in the last revision of the rules. Perhaps, in ordinary cases, twenty-four hours, after the service of the demand, would be a reasonable time for the service of a copy of the complaint, as it is presumed to have been made out at the time of the service of the summons, but if not, or for any other good reason, a complaint cannot be served within a time which, in ordinary cases, would be considered reasonable, further time for its service can be granted under the provisions of section 405 of the Code. In this case, the plaintiff has omitted to serve complaint from August to December, so that the question of what should be held a reasonable time, does not arise. The last rule of this court, adopted in August, provides, that in cases where no provision is made by statute or those rules, the proceedings in this court shall be according to the customary practice as it had heretofore existed in cases not provided for by the statute, or the written rules of the court. (Rule 92.) By that practice, after the lapse of a reasonable time for the service of the copy of the complaint, the defendant should be permitted to move for judgment dismissing the plaintiff's complaint. This is equivalent to a motion for judgment of non pros, under the former practice for the nouservice of a bill of particulars. (May agt. Richardson, 4 Cow. R., 56; Seymour agt. Ciaw, 5 Cow., 279; Brewster agt. Sackett, 1 Cow., 571.) The complaint may also be dismissed in a case like the present. under section 274 of the Code, for the neglect of the plaintiff to proceed in the cause against the defendant served with the summons. omission to serve a copy of the complaint, in pursuance of the requirements of the statute, is an unreasonable neglect on the part of the plaintiff to proceed in the cause.

An

In Colvin agt. Bragden, 5 How., 124, Special Term, August, 1850, PAIGE, J., it was decided, that after demand by defendant, of a copy complaint, under this section of the Code, the plaintiff should be allowed twenty days thereafter, as a reasonable time for the service. And it was stated, that this motion involves the question of what is a reasonable time for the service of complaint after defendant has served a demand for same in pursuance of section 130 of the Code. As this is an unsettled question the different judges of this court will be found in conflict until some definite rule is established with the approval of the court in bench. It is a matter of opinion merely as to what is a reasonable time. The Code and standing rules have omitted to define the time. My views are not exactly in accordance with the opinion of Mr. Justice ALLEN, in the case of Littlefield agt. Murin, (4 How. Pr. R., 306). I think twenty days would be a reasonable time for the service of the complaint: but as the court have established no definite rule as to what is a reasonable time, the plaintiff in this case should not be charged with costs. The motion is properly made; but as the plaintiff does not desire to avoid serv ice of the complaint, I will give him five days to serve copy complaint, to which defendant may have the usual time to answer; no costs to be allowed to either party.

In Munson and Sill agt. Willard, 5 How., 263, Special Term, December, 1850, HUBBARD, J., it was decided, that twenty days is a reasonable time to be allowed for the serVice of a complaint, after demand, under this section of the Code. And it was stated, that the question arising on this motion is whether the plaintiff has unreasonably neglec ted to serve the complaint. No time is prescribed by the statute or rules of the court within which service is to be made, and hence as the practice now is, the question of reasonable diligence must be determined by the facts and circumstances of each case. To prevent the evils of uncertainty and contrariety of decisions resulting from such a practice, some general rule should be established. Before the Code, a standing rule defined the time of service of the declaration after notice (rule 14 of the Rules of 1847). Thirty days is there prescribed to be a reasonable time. Under the Code the summons, as the commencement of the suit, takes the places of the capias ad respondendum, and by analogy, thirty days would be a reasonable time for the service of the complaint. Perhaps that length of time is not requisite in ordinary cases, but where a rule of gen eral application is established, ample time should be given to prepare the pleading and serve in the extreme parts of the state. In this case the parties and attorneys reside in the same place, but the requisition of the defendant that the complaint be served within two days, cannot be sustained. Under any circumstances that short time is unreasonable, requiring a most extraordinary diligence. The present practice should be assimilated to the former, as far as practicable, in matters sanctioned by time and experience, and hence twenty days at least should be allowed within which to serve complaint after demand. The necessity for time is as imperative now as formerly. This motion is made, it is alleged, upon the authority of the case of Littlefield agt. Murin, (4 How., 306). There is a remark, in the opinion of that case, to the effect that perhaps under ordinary circumstances. twenty-four hours would be a reasonable time within which to serve complaint after demand. But it is to be observed that the question of diligence did not arise; the decision was upon the principle, that an omisson to serve from August to December created a presumption of abandonment of the suit. The doctrine of that case is sound; but when Justice ALLEN alluded incidentally to a supposed analogy with the practice under a peremptory order for a bill of particulars, he evidently from his guarded

§ 130.]

SUMMONS.

language, expressly stating that the question of diligence did not arise; did not anticipate that the case was to be quoted as authority requiring the complaint to be served in the short space of twenty-four hours. That case does not authorize this motion. The motion must be denied, but without costs, as the practice is unsettled. Since the decis ion of this motion, as above, the case of Colvin agt. Bragden, (5 How. Pr. R., 124), has been published. Justice PAIGE decides that twenty days is a reasonable time, ordinarily, to serve complaint, after demand. In that decision I fully concur. The time is, perhaps, sufficient to meet all exigencies of a reasonable and convenient practice. Such a general rule would tend to restore the harmony and beauty of the former system in motions of non pros. like the present.

In Luce agt. Trempert, 9 How., 212, Special Term, December, 1850, SILL, J., it was decided, that where defendant's attorney served notice of retainer and demand of copy complaint at two several times, (for several defendants), upon plaintiff's attorney; and after twenty days had elapsed from the first service, but not twenty days from the last, he moved to dismiss the complaint for want of service; on proof of service of the first notice and demand, the defendant was entitled to move, without waiting for the expiration of twenty days from the last service. In ordinary cases, the practice, as settled, allows twenty days for service of copy complaint, after demand. And it was decided, that motion be granted (to dismiss the complaint), with $10 costs. And after the defendants' counsel had left court. the plaintiff's counsel called the attention of the court to the fact that there was not twenty days between the last demand of complaint and service of notice of motion; the judge thereupon directed the clerk not to enter the rule, and to give notice to defendants' counsel to come into court again, and on his appearing, the judge remarked, that there had been a mistake made in granting the motion, for the reason that twenty days had not intervened between the date of demand of complaint and service of notice of motion. Defendants' counsel remarked that such was not the fact, although the moving papers did not show it, and he thereupon produced the admission of plaintiff's attorneys, of service of notice of retainer, dated November 1, 1850, which showed that twenty days had elapsed. And also cited Littlefield agt. Murin, (4 How. Pr. R. 306), in which it was required that the complaint should be served within a reasonable time, and that twenty-four hours would ordinarily be sufficient. The judge then said, that although the moving papers did not show that twenty days had elapsed, yet that the admission of service of plaintiff's attorney, dated November 1, 1850, did show that the defendants' attorney was entitled to move at any rate, and he would not therefore disturb the decision first made. And remarked, that after the twenty-four hour rule had appeared, he dissented from the decision, and then held a correspondence with Justice ALLEN upon the subject; and it was agreed that thereafter, in all cases, they previous to should hold that twenty days must be the time allowed to plaintiffs to serve complaint (The above decisions were all made under this section as it stood after demand. the amendment of 1851. But they are useful as showing the views of the court on tions of diligence in serving papers where no time is specified.

the ques

4. Q. Can the time to serve a copy complaint be extended? A. In Littlefield agt. Murin, 4 How., 306, 2 Code R., 138, Special Term, December, 1849, ALLEN, J., it was decided, that the time to serve a copy of the complaint may be extended by a judge under section 405 of the Code. (See this case under question 3, ante. In Stephens agt. Moore, 4 Sandf., 674, General Term. November, 1851, CAMPBELL, J., It must be obtained it was decided, that an order giving the plaintiff further time to serve his complaint, can not be granted ex parte, after the time for serving it has expired.

on notice, or an order to show cause, served on the defendant. This was decided by CAMPBELL, J., at chambers, with the concurrence of all the justices. After the time for serving the complaint, prescribed by section 130 of the Code, had expired, the plaintiff It was held that under section 405 applied to one of the justices of the court, ex parte, and obtained an order giving him five days further time in which to serve the complaint.

of the Code, an order enlarging the time, &c., could not be made, after the time had actually expired, unless the adverse party had notice of the application.

5. Q. Can an answer be served after the twenty days prescribed by this section?

A. In Mandeville, Administrator, &c., agt. Winne, 5 How., 461, Special Term, July, 1851, PARKER, J., it was decided, that a defendant must answer the complaint within the twenty days, prescribed by this section. He has not a right to answer after the expiration of the twenty days, and before judgment is actually taken. And it was said, that the evidence is so contradictory, that I have doubted whether the complaint was But I think I am bound to hold that the admission of served on the 5th or 6th of June. the defendant, proved by the affidavit of Mr. King, outweighs, with the affidavit of the sheriff, the evidence on the part of the defendant, and shows the service to have been It is true the answer was served made on the 5th June. The answer then was not served till, after the twenty days for answering had expired, viz.: on the 26th of June. The language is before judgment was entered, but I do not think it was therefore in time. The Code "the defendant shall have twenty days to answer." (§ 130), says explicit. The time for answering is to be measured by days. No default is required to

be entered at the expiration of that time, as was formerly the practice. If a rule for default was to be entered it would probably be best to regard the time for answering as extending to the entry of the rule, and to hold the taking of the default as the evidence of the plaintiff's intention to terminate the time for answering. But as no rule is required. and the time is prescribed by statute, both parties understand when the time for answering expires. It is the policy of our present practice to dispense with common rules in the progress of the action. They are no longer deemed necessary, to mark the limit within which a step is to be taken. The default is now deemed to be taken at the end of the twenty days, as effectually as if a rule for that purpose was entered. The judgment is a subsequent step in the cause. A defendant never had the right to plead till judgment was entered, but only till default. It is important to the plaintiff to know, before he proceeds to prepare to take judgment, whether a default is perfected. It would subject a plaintiff to great inconvenience and delay, to compel him to receive an answer at any time before judgment, particularly in a case where he applies to the court for judgment. A defendant might lie still till the plaintiff's counsel rose in court to move for judgment, with the witnesses present to prove the amount of damages, and then, by serving an answer, he would stop the proceeding and throw the cause over till another circuit. I think the only safe practice is to require the defendant to answer within the twenty days. If he cannot do so, the time may be extended; and if by mistake the time has elapsed without answering, he may always be relieved on just terms. The answer then was not served in time; but the defendant swearing to merits, the judgment must be set aside and defendant must have leave to answer on paying costs of judgment and of motionin all fixed at $15.

In McGowan agt. Leavenworth and others, 2 E. D. Smith, 24, General Term, November, 1850, INGRAHAM, F. J., it was decided, that an order staying the plaintiff's proceedings, will not extend the time for the defendant to answer. The time is fixed by statute, and can only be enlarged by consent or by an order for that purpose. Accordingly, where, on the last day of the time to answer, the defendant obtained an order to show cause why it should not be extended, and staying the plaintiff's proceedings in the meantime : it was held, that the extension having been refused on the return of the order to show cause, the plaintiff was at liberty to proceed upon the defendant's default, and that the service of an answer a few moments before the hearing of the application for further time could be disregarded. The service of a pleading after the time allowed by law, although before the adverse party has acted upon the default, is not good. And it was said, that the judge at chambers was correct in holding that an order to stay the plaintiff's proceedings, did not enlarge the time for the defendant to answer. That time is fixed by statute. It can only be enlarged by consent, or by an order for that purpose. The stay of proceedings prevented the plaintiff from taking advantage of the omission to secure the answer in time, until that stay was vacated or at an end; but as soon as that took place, he had a right to proceed upon the default in not answering within the time allowed by law. We have repeatedly held, that a service of a pleading after the time allowed by law, although before the other party has proceeded thereon, is not good. Where a paper is served upon a party, who declines to receive it, he is required to return it within a reasonable time. This has never been limited to a shorter period than the same day; and to return a paper in two hours after the receipt of it, is within all the rules of diligence ever required in such cases.

And in Dudley agt. Hubbard, 2 Code R., 70, Special Term, December, 1849, EDWARDS, J., it was decided, that a defendant cannot regularly serve his answer after twenty days from the service of the summons and complaint, unless the time to answer has been extended. The Judge saying, that the judgment is irregular. Where the complaint and summons are served together, the defendant has twenty days, of course, to serve his answer thereto, but no more. There is now no entry of default. It is entered by operation of the statute. I have consulted with my brethren, and we all agree on this point This motion must be denied. (See also Graham agt. McCoun, 1 Code R., N. S., 45.) But in Foster agt. Udell, 2 Code R., 30, N. Y. Common Pleas, Special Term, September, 1849, DALY, J., it was decided, that a defendant may put in an answer at any time, before the plaintiff has entered up judgment. The Judge saying: I see no difficulty in this case; the 128th section of the Code allows the plaintiff to enter up judgment, if no auswer is served within twenty days after the service of the summons, but if he delays to enter up the judgment then any time before judgment is actually entered, the defendant may serve an answer. No difficulty can arise from such a practice, the defendant only does that which under section 405 the court would have given him time to do. The plaintiff delaying to take judgment, is equivalent to a consent to give the defendant further time to answer. Motion granted without costs.

And in Carpenter agt. The New York and New Haven Railroad Company, 11 How, 484, N. Y. Superior Court, Special Term, October, 1855, HOFFMAN, J., it was decided, that where, on the 15th of September, 1855, a summons for relief, with process of attachment, were served upon the defendants, under the 134th section of the Code On the 6th of October, a petition to transfer the cause into the circuit court of the United States, was filed, and a regular appearance of the defendants entered with the clerk, and a bond